Court clears contentious Ruto university funding model

The Court of Appeal has suspended a judgment that quashed the new university funding model, clearing the way for government to resume the contentious Variable Scholarship Loan Funding Model.

Lawyers appearing before a bench of three judges of the appellate court reached a compromise on Wednesday, suspending the judgment of High Court judge Chacha Mwita.

While quashing the model on December 20, Justice Mwita had ruled that the new system was not anchored in law and that there was no public participation before its rollout.

“Pending the hearing and determination of the intended appeals, there shall be a stay of execution of the judgment and orders of the High Court in Nairobi Petition No. 412 of 2023 (Justice Chacha) dated and delivered on 20th December, 2024,” Justices Patrick Kiage, Weldon Korir and Prof Joel Ngugi said.

The parties further agreed that the Attorney-General, the Higher Educations Loans Board (Helb) and the Trustees of the Universities Fund will publicise to all students and stakeholders, an appeals mechanism to be used by students aggrieved by the funding decisions or categorisation.

The appellate court judges said this should be done within 14 days from Wednesday. 

Contentious model

In his decision blocking the model, Justice Mwita had pointed out that the body to which appeals could be made was unknown, as well as its composition and procedures. 

“It can be an ad hoc body that may decide appeals arbitrarily, capriciously and at whims,” Justice Mwita had said.

In Wednesday's decision, the parties also agreed that students and stakeholders should be informed that the funding model may change in the future, depending on the outcome of the appeal.

“For purposes of this temporary appeals mechanism, the respondents shall be permitted to have an abbreviated public participation process proportionate to the expedient circumstances,” the order adopted by the appellate court stated.

It also directed that the case to be listed for hearing on priority basis after the judges’ recess in April.

Kenya Human Rights Commission, Boaz Waruku, Elimu Bora Working Group and the Students’ Caucus challenged the funding model arguing that it transferred the responsibility of providing education from the State to parents, many of whom are struggling to keep their children in school. 

“There is no denial in this petition that implementation of the recommendation on the new funding model was not subjected to public participation despite the drastic and fundamental shift it introduced in the funding of higher education in the country,” Justice Mwita had previously ruled.

The court stated that implementation of the new funding model without public participation violated Article 10 of the Constitution.

The judge also stated that the essence of public participation was to allow people an opportunity to have a say on issues that affect them and touch on their lives. 

The judge further said the views given before the presidential working party and its recommendations should be subjected to public participation prior to implementation. 

The government had defended the new funding model arguing that the previous system had become ineffective over failure to consider the cost of postgraduate courses and largely generalised all universities without addressing unique challenges faced by each institution.

The Ministry of Education had argued that the new funding model will address challenges experienced by extremely vulnerable and needy students who had been greatly disadvantaged by being denied funding at the expense of students whose parents or guardians could afford to pay for education.