Legal tussle begins as Mombasa residents fight bursary suspension order

A legal battle has emerged as two Mombasa residents move to court, challenging a directive by the Controller of Budget, Margaret Nyakang’o, which halts county governments from issuing bursaries to needy students.

In a letter dated January 14, the CoB said the county governments have no legal basis to finance students in post-primary institutions, saying that the mandate is under the national government.

She said the only way county governments can run bursaries for post-primary education would be if the functions are transferred from the national government.

However, the petitioners, George Mwaura and Geoffrey Mugambi, argue that Nyakang’os directive to county governments, to ensure that any funds withdrawn for functions categorised as national government functions, should be accompanied by the appropriate intergovernmental agreement.

They claim that if implemented, the directive will delay disbursements intended for bursaries, affecting students who rely on such funding.

“The circular would allow the Controller of Budget to impose restrictions on the withdrawal of funds designated for bursaries, which will affect children from poor backgrounds and marginalized communities, who cannot afford school fees,” Mwaura said.

He added that the circular was unconstitutional and undermined the role of devolution as outlined in Kenya’s constitution.

“This is not only unconstitutional but threatens to undermine the role of devolution as enshrined in the constitution,” Mwaura added.

Mwaura further emphasised that the circular wrongly suggests that the provision of bursaries is solely the responsibility of the national government, a notion not supported by the Constitution’s Fourth Schedule.

“The circular places an unreasonable and unexpected financial restriction upon county governments, specifically on the issuance of bursaries for needy students, even though it is the Controller of Budget that approves county government requisitions, based on the itemized budget estimates negotiated with the Commission on Revenue Allocation,” he said in his affidavit.

The two residents noted that the Mombasa County government has for years provided bursaries to bright but needy students through the Elimu Scheme, which operates under the Mombasa County Elimu Scheme Act, 2023.

The scheme aims to mobilise resources for quality childcare and education services, including bursaries, scholarships, vocational training support, and grants.

The residents pointed out that the scheme has undergone several changes since its establishment in 2014 and has disbursed over Sh700 million to students in secondary schools, colleges, universities, special needs education, and city polytechnics.

“The provision of funds for the above scheme mainly derives from the disbursements to the county government from the National Treasury as provided for in the respective Mombasa County Finance Act,” Mwaura explained.

He stressed that nothing in the distribution of functions between national and county governments restricts the issuance of bursaries or scholarships to either level of government.

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High Court Judge Jairus Ngaah has now certified the case as urgent, directing the petitioners, to serve court documents to Treasury Cabinet Secretary John Mbadi, CoB Nyakang’o, and Attorney-General Dorcas Oduor.

“The application is certified urgent. I direct that the application be served forthwith and in any event, not later than three days from today’s date. I direct the respondents to file and serve their response within seven days of the date of service of the application,” Judge Ngaah said on Wednesday.

The case will be mentioned again on February 19 for further directions.