The High Court on Friday quashed the new university funding model, dealing a blow to President William Ruto's plans to reform the education sector.
Justice Chacha Mwita struck down the model, saying it was discriminatory, introduced without public participation and violated the legitimate expectations of students and parents.
Attempts by the Attorney-General, Dorcas Oduor, to have the court suspend the ruling for 45 days "to allow the government to correct the mistakes" identified by the judge were rejected.
The government had argued that the decision would cause crisis and confusion in the higher education sector as the new model was being implemented.
“The new funding model has introduced clusters labelling students based on age, financial capability and an unknown term called household income, creating discrimination and distinction among students,” said the judge.
Judge Mwita said while the old model, known as the differentiated unit cost, was enshrined in law and it was clear where the funding came from, the new model had no legal backing and therefore created uncertainty in higher education.
The judge ruled that education is for the public good and it is the government's duty to fund universities.
The judge added that there was no doubt that the funding model would affect the operation of the Higher Education Loans Board (Helb) and that the model was in conflict with Section 53 of the Universities Act, which established the Universities Fund to finance university education.
Justice Mwita added that the new funding model, known as the Variable Scholarship and Loan Funding Model (or New Higher Education Funding Model), was introduced after students who completed secondary education in 2022 had selected their preferred courses but were forced to change courses, frustrating their legitimate expectations.
The government had defended the new funding model, arguing that the previous system had become ineffective because it failed to take into account the cost of postgraduate courses and largely generalised across all universities without addressing the unique challenges faced by each.
The Ministry of Education said the new model addresses the challenges faced by extremely vulnerable and needy students who have been severely disadvantaged by being denied funding at the expense of students whose parents or guardians can afford to pay for their education.
“Consequently, the 1st and 2nd Respondent (CS Education and AG) cannot be faulted for establishing the Variable Scholarship and Loan Funding Model, which essentially seeks to ensure that all students, especially those that come from extremely vulnerable and needy backgrounds, attain their right to education and hopefully attain their rich and great potentials through the necessary government funding,” the Attorney-General had submitted in opposing the petition.
The Kenya Human Rights Commission (KHRC), the Elimu Bora Working Group and the Students' Caucus challenged the new model, saying it had shifted the responsibility of providing education from the state to parents, many of whom struggle to keep their children in school.
The lobbies said that in the old model, the government funded 80 percent of university fees and parents were asked to provide the remaining 20 percent.
This, the lobbies argued, was not discriminatory as anyone could apply for funding.
The lobbies also said that there was no clarity on the selection of universities, and technical, vocational, education and training (TVET) courses, and that eligible students faced long delays due to a lack of clear instructions from the Kenya Universities and Colleges Central Placement Services (KUCCPS).
The judge agreed, stating that the Universities Act identifies the source of funds as the trustees set up to manage the funds would mobilise funds from the government, donors and other sources.
The Attorney-General said that before the model was introduced, the Presidential Working Party on Education Reforms carried out an analysis of the education sector and collected data from the public, including Kenyans in the Diaspora, and sought views at county-level town hall meetings.
The government argued that the new model was in line with the constitutional and statutory framework for funding universities.
“The model enhances effectiveness of the Universities Fund by ensuring that funds are allocated based on differentiated unit cost model, which is designed to promote equity and transparency in higher education funding,” the Attorney-General said.
Under the new model, students have been categorised as vulnerable, extremely needy, needy and less needy, with the needy receiving 82 percent grant and 18 percent loan, while the less needy receive 38 percent grant, 55 percent loan and 7 percent contribution from parents or guardians.
Students are also expected to apply for the loans and bursaries individually, and applications will be assessed using a model that uses a Means Testing Instrument (MTI) to determine the student's level of financial need to ensure they receive appropriate support.
Previously, government-sponsored students paid Sh16,000 per year and received a loan of up to Sh60,000 per year under the Differentiated Unit Cots established by the Universities Act.
The lobbies argued that the criteria for qualifying a student for government support was yet to be determined and that it was difficult to know which students were vulnerable, very needy, needy and less needy, yet these were the yardsticks by which the government would assess the level of support it would provide to students.
In his ruling, Justice Mwita said the categorisation of students was a form of discrimination, yet the law demanded equality for all.
“It is also possible for a person from the so called marginalised areas to be earning more than someone from as areas not categorised as marginalised, yet it is a factor for determination of students funding needs,” said the judge.
“In my respective view there can be no worse form of discrimination than to use previous schools to categorise students,” said the judge adding that parents who place their children in private schools sacrifice a lot to ensure the best for their children.
