Fees Up, But Rules Apply: Court Draws Line on Private School Hikes

This judgment builds on a growing body of case law that balances institutional autonomy with consumer protection, marking a pivotal moment in Kenya’s education sector as debates over affordability, regulation, and parental rights intensify.

The Oshwal Academy ruling: Autonomy affirmed, but within legal guardrails

The Oshwal Academy case, filed by two parents challenging the school’s 2026/2027 fee increment, became a test of the limits of private school authority. Justice Mburu’s ruling, delivered in mid-September 2026, dismissed the parents’ petition, finding that the school had acted within its rights under the Basic Education Act and relevant contractual frameworks. Crucially, the court distinguished between the state’s constitutional obligation to provide free basic education and the operational realities of private institutions, which rely on fee revenue to sustain services.

The judgment underscored that while private schools are not state entities, they are not exempt from legal scrutiny. The court emphasized that fee hikes must be justified, transparent, and procedurally sound, particularly where there is an established practice or legitimate expectation among parents regarding fee stability. In Oshwal’s case, the school’s adherence to prior notice, itemized breakdowns, and consistency with past adjustment cycles helped it withstand legal challenge.

This ruling echoes earlier precedents, including the 2021 High Court decision in KESTPA v Kisumu Education Society Trust, where Justice Chacha Mwita held that courts cannot micromanage pricing in the education sector, as that would interfere with demand-and-supply mechanisms. However, the same judgment clarified that private schools must still operate within statutory and constitutional frameworks, particularly regarding consumer rights and fair administrative action.

The legal framework: Basic Education Act and constitutional obligations

The legal backbone of private school fee regulation in Kenya is the Basic Education Act (2013), particularly Section 29, which governs fees in public schools but also indirectly shapes private sector conduct through registration and accreditation requirements. While the Act explicitly prohibits public schools from charging tuition fees (except for non-citizens or with Cabinet Secretary approval for other levies), it does not impose direct fee caps on private institutions. Instead, private schools must be registered under the Act, and their operations, including fee structures are subject to oversight by the Ministry of Education.

The 2026 Basic Education Bill, currently before Parliament, seeks to tighten this framework. Clause 12 proposes that public schools cannot levy charges without Cabinet Secretary approval, with violations punishable by fines of up to Sh1 million or three years’ imprisonment for administrators. For private schools, the Bill mandates registration and imposes penalties of up to Sh20 million or three years’ jail for operating unregistered institutions. However, private school representatives, including the Kenya Private Schools Association (KPSA), have opposed clauses that would grant the Ministry explicit power to regulate private school fees, arguing this would stifle investment and operational flexibilty.

Constitutionally, private schools are bound by Articles 43 (economic and social rights, including education), 46 (consumer rights), and 47 (fair administrative action). In the 2024 St Bakhita case, Justice Janet Mulwa ruled that private schools are “suppliers of services” and must respect consumer rights, including the right to information, fair terms, and protection from unconscionable conduct. She further held that unilateral mid-year fee hikes without consultation violated fair administrative action principles, even if the Basic Education Act does not explicitly require parental consent for fee setting.

Precedents and patterns: when courts intervene in fee disputes

Kenyan courts have increasingly intervened in private school fee disputes, not to set prices, but to enforce procedural fairness and contractual good faith. The 2024 St Bakhita ruling is a landmark example: Justice Mulwa granted a temporary injunction blocking a mid-year fee increase of up to 20%, citing the “unconscionable, unfair and unjust” nature of the school’s sudden change of mind after issuing the 2024/2025 fee structure three months into the academic year. The court noted that parents had a legitimate expectation based on a 20-year practice of biennial fee adjustments, that the next increase would occur in 2025, not mid-2024.

Similarly, in early 2025, parents at St. Philip Neri Primary School in Nairobi sought court orders to block a fee hike, arguing the school failed to consult the Parents Teachers Association (PTA) as required by the Basic Education Act and established practice. The plaintiffs contended that the unilateral decision disregarded the duty of good faith and created financial hardship, violating consumer rights under Article 46. While the case was still pending at the time of reporting, it highlighted a recurring theme: courts are willing to intervene where schools breach procedural norms or act in bad faith, even if they retain substantive discretion over fee levels.

In contrast, the Oshwal Academy ruling demonstrates that where schools follow due process, providing notice, justification, and consistency with past practice, courts will uphold their autonomy. Justice Mburu found that the parents failed to prove illegality or procedural unfairness, leaving the 6% increase intact. This creates a clear judicial pattern: private schools may hike fees, but they must do so transparently, reasonably, and in line with contractual and statutory expectations.

Government stance: enforcement without price-setting

The Ministry of Education has consistently maintained that it does not set private school fees but expects compliance with legal and procedural standards. In May 2026, Education Cabinet Secretary Julius Ogamba warned school heads against “illegal fee hikes,” stressing that all institutions must adhere to ministry circulars outlawing extra levies. He announced that enforcement teams, including officers from the Teachers Service Commission (TSC), would crack down on schools flouting the Basic Education Act, with disciplinary action against non-compliant administrators.

This enforcement-first approach aligns with the government’s broader strategy: avoid direct price regulation (which could deter private investment) while ensuring that fee increases are lawful, justified, and non-exploitative. The 2026 Basic Education Bill reinforces this by imposing penalties for unauthorized levies in public schools and requiring private schools to register and operate within legal frameworks. However, the Bill stops short of granting the Ministry explicit power to cap or approve private school fees, a concession to industry lobbying.

Implications for parents, schools, and policy

For parents, the court’s affirmation of private school autonomy means that challenging fee hikes requires more than dissatisfaction, it demands evidence of illegality, procedural unfairness, or breach of contract. The Oshwal ruling underscores the importance of documenting school policies, past fee adjustment cycles, and communication records to establish legitimate expectations. Parents are also increasingly leveraging PTAs and consumer rights frameworks to demand consultation and transparency, as seen in St Bakhita and St. Philip Neri.

For private schools, the message is clear: autonomy comes with accountability. Schools must ensure fee hikes are justified (e.g., inflation, infrastructure costs), communicated with adequate notice, and consistent with past practice or contractual terms. Mid-year increases, unilateral decisions, and failure to engage PTAs where established practice exists are high-risk strategies that invite legal challenge.

For policymakers, the tension between affordability and investment remains unresolved. While the 2026 Bill introduces penalties for illegal levies, it avoids direct fee regulation for private schools, a compromise that may not satisfy parents facing steep increases. Future reforms may need to strike a balance: perhaps requiring schools to submit fee adjustment justifications to the Ministry or PTAs, without imposing rigid caps that could deter quality investment.

The broader context: affordability, inequality, and the right to education

Underlying these legal battles is a deeper societal concern: the rising cost of education in Kenya and its impact on access and inequality. While public schools offer free tuition, many parents opt for private institutions due to perceived quality, proximity, or curriculum preferences. However, with fees ranging from modest amounts to over Sh2 million annually at top international schools, affordability is a growing barrier.

The courts have acknowledged this tension but stopped short of mandating price controls. Instead, they have focused on process: ensuring that fee hikes are not arbitrary, exploitative, or unconscionable. This approach respects market dynamics while protecting consumers from abuse, a middle ground that may evolve as Parliament debates the 2026 Bill and as more cases test the boundaries of school autonomy.

In the end, the Oshwal ruling and its predecessors send a unified message: private schools may hike fees, but they must do so within the law, with fairness, and in good faith. For parents, the path to challenge increases lies in evidence, procedure, and persistence. For schools, the lesson is that autonomy is not immunity, it is a responsibility to be exercised with transparency and respect for the rights of those who pay for their services.