High Court suspends implementation of new university funding model

The High Court has prohibited public universities and colleges from rejecting admission or halting learning for students who have yet to pay their fees due to financial constraints, while still implementing the new higher education funding model.

The orders by Justice Bahati Mwamuye have stopped all universities, TVETs and other tertiary institutions from sending away learners who have failed to pay fees pending the determination of a petition challenging the new higher education financing system.

The petitioners had sued the Universities Fund, Higher Education Loans Board, Cabinet Secretary for the Ministry of Education, Kenya Universities and Colleges Central Placement Service and the Attorney General who are named as the respondents in the suit to stop the implementation of the discriminative model.

"A conservatory order is hereby issued prohibiting the respondents jointly and severally and all public universities and public institutions of tertiary learning from refusing to admit or provide learning, training or access to facilities for any student or prospective student on the basis that they have failed to raise or fully pay the fees stipulated under the new Higher Education Funding Model, the University Funding Model or the TVET financing Model," the judge stated.

The judge issued the orders after two non-governmental organisations – Elimika Mashinani Trust and the Consumer Federation of Kenya sued to avert statutory and constitutional violations by the listed institutions through the introduction of the New University Funding Model.

The petitioners, Stephen Mutoro and Henry Ochieng claim that the government is unlawfully implementing a model that has no legal basis and violates section 74 (4) of the Kenyan Universities Act, Chapter 110.

"However, the respondents have, without any legal basis and in stark contravention of the constitutional and statutory provisions, opaquely rolled out the implementation of what is described as variable scholarship and Loans funding better known as New Funding Model," the petition reads in part.

"Despite the clear statutory provisions, the new model has been rolled out to replace the statutory based Differential Unit Cost Model without amendments to the law making it expressly unlawful."

The petitioners argued that the model is illegal and should not be allowed to proceed.

Mutoro and Ochieng argue that the rolling out of the funding model has occasioned and continues to occasion vast violations of constitutional rights, including the violation of the right to dignity, the right to education as well as the right to equality and freedom from discrimination.

"In the period between August 26 and September 6, 2024 hundreds of thousands of prospective university students hope and expect to commence their tertiary studies," Mutoro and Ochieng argue.

"Their hopes and prospects are grounded on expectations of fair, transparent and equal constitutional and statutory based funding and support from the Kenyan Government," they state in the petition.

Justice Mwamuye gave Mutoro and Ochieng till Monday to serve the application and suit papers on the respondents and two interested parties, the Katiba Institute and the Law Society of Kenya.

The respondents and interested parties must file their responses by the close of business on September 6, and the case will be discussed on September 18 for additional instructions upon confirmation of compliance with the orders.