Two parents have moved to court to challenge the criminalisation of the non-enrolment of a child to either a public or private school, in an effort to have homeschooling recognised in law.
Mr Silus Shikwekwe Were and Mr Onesmus Mboya Orinda argue in their petition that the law to enrol a child to an institution of learning limits the scope of what education is.
The duo say sections of the Basic Education Act infringe on the rights of parents to determine the forum and manner in which their children will be educated.
They add that it also violates the child's right to freedom of conscience, opinion, belief and free will.
"The non-recognition of homeschooling as a form of education which guarantees a child's right to education contravenes the rights of children who may opt for this system of education as well as the right of the parent to determine a course that would take care of the child's interest," the petition reads.
They state that a child, though formally enrolled and sitting in class, may be not be receiving education in a manner that best promotes the well-being and full development of the child.
"Consequently, the classroom is transformed into a detention facility which subjects a child to mental torture thereby limiting and or inhibiting the full development of the child," the petition reads.
The petitioners say there lacks conclusive evidence to show that the admission of a child to a formal school inculcates quality education, morals, values and principles in the child as envisaged in the Constitution.
"Conversely, there is no proof that provision of home education in any way compromises or diminishes a child's right to education," Mr Were said in a sworn affidavit.
The move to seek court to decriminalise non-enrolment of pupils in formal schools comes after Mr Were and his children were arrested on February 18, 2019 and later arraigned at a Butali court in Kakamega County.
Mr Were said his children were also detained in police cells overnight, which he says was illegal and in violation of their rights.
The petitioners say homeschooling allows parents to teach their children an academic curriculum at home instead of sending them to an institution.
They add that this form of education is gaining traction in Kenya and has been adopted and legalised throughout Europe and North America and countries such as Australia, New Zealand, Hong Kong and South Africa.
In the case pending before Butali court, Mr Were was accused of abdicating his duty to enroll his children in school, yet the minors need care and protection.
The parents say Section 4 of the Basic Education Act offers guidelines on what basic education entails and should be recognised along with Section 31(3) that provides that a parent or guardian shall have the right to participate in the character development of his or her child.