High Court declines to lift orders quashing Ruto’s university funding model

The High Court has declined to lift orders quashing President William Ruto’s multi-billion-shilling university funding model, insisting that public interest is best served when all government policies adhere to the law.

Justice Chacha Mwita ruled that allowing the lifting of the suspension would permit the continuation of an unconstitutional policy.

In a major setback for the government, Justice Mwita maintained that the funding model, which was declared unconstitutional, could not be implemented without addressing its legal shortcomings.

He emphasised that public interest favoured adherence to the law, not the continuation of an unlawful scheme.

“The scales of justice tilt in favour of those who challenged the model,” Mwita ruled on Monday, criticising the contradictory actions of the Higher Education Loans Board, Education Cabinet Secretary Julius Ogamba and the Attorney General.

He pointed out that while the government had appealed against his judgment, it had simultaneously claimed to be complying with the court’s orders.

“Any suspension of this court’s declaration would allow the applicant, and by extension the 1st, 2nd, 3rd, and 4th respondents, to continue acting outside the law,” he said, referring to the government’s ongoing implementation of the new funding model since August 2024.

Consequently, Mwita dismissed the government’s application to suspend the ruling.

The contested funding model, introduced by President Ruto on May 3, 2023, sought to allocate financial aid to university and technical and vocational education and training (TVET) students based on their household income.

However, the court found it unconstitutional, lacking a legal framework and failing to meet the requirements for public participation.

Justice Mwita strongly criticised the government's move to shift the burden of funding public universities onto parents. He argued that this violated the Constitution, which mandates the state to finance higher education institutions.

The court subsequently issued an order barring Education CS Ogamba, the Attorney General, the Higher Education Loans Board, the Trustees of the Universities Fund Kenya, and the Kenya Universities and Colleges Central Placement Service from enforcing the funding model until all legal procedures were followed.

The case was brought before the court by the Kenya Human Rights Commission (KHRC), the Elimu Bora Working Group, Boaz Waruku, and the Students Caucus. The court ruled that the funding model violated multiple constitutional provisions, including Section 53 of the Universities Act, which mandates that any higher education funding framework must be legally established and subject to public participation.

“The new funding model introduces a specific allocation of higher education resources without a proper statute, creating a funding mechanism that is in direct conflict with the law. The model, as it stands, is not anchored in any law. Its composition and its procedure remain unknown,” Mwita said.

One of the key flaws identified in the model was its discriminatory nature. The court noted that the system categorised students based on factors such as the type of school attended, age, and household income, which created disparities in access to funding.

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“It’s unrealistic, if not unfair, to consider someone earning Sh70,000 per month as needy, considering the level of taxation in the country,” Mwita said.

The ruling puts pressure on the government to either overhaul the funding model to meet constitutional requirements or develop an alternative approach that aligns with the law.

Currently, students, parents and universities remain in limbo as the legal battle over higher education funding continues.