The government suffered a huge setback on Monday after the court declined to lift orders quashing Kenya Kwanza’s multi-billion-shilling university funding plan introduced by President William Ruto.

Justice Chacha Mwita delivered a damning ruling, stating that the scales of justice tipped in favour of those who opposed the model. He declared that public interest is best served when all parties act within the law. He criticised the Higher Education Board, the Education Cabinet Secretary, and the Attorney General for their contradictory actions. He noted that while they had moved to the Court of Appeal seeking to suspend his judgment, they simultaneously claimed their intention to comply with the orders.

Justice Mwita emphasised that allowing the suspension would permit the continuation of the funding model, even though it had already been declared unconstitutional. 

“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,” the judge remarked, referring to the ongoing shift in the funding of government-sponsored students to the new model since August 2024. As a result, he declined the application and dismissed it. 

The funding model, unveiled by President Ruto on May 3, 2023, aimed to allocate financial aid to university and TVET students based on their household income.

The judge strongly criticised the government’s decision to shift the responsibility to parents, stating that it was the government’s duty to fund public universities. He argued that transferring this burden to parents violated the Constitution.

Justice Mwita ruled that the model was unconstitutional, lacked a legal framework, was discriminatory, and failed to meet the legal requirements for public participation. 

The court issued an order prohibiting Education CS Julius 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 implementing the new system until all legal requirements were met.

The petition was filed by several petitioners, including the Kenya Human Rights Commission (KHRC), the Elimu Bora Working Group, Boaz Waruku, and the Students Caucus. The court found that the funding model violated multiple constitutional provisions, particularly Section 53 of the Universities Act, which requires any higher education funding system to be legally grounded and developed with 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,” Justice Mwita stated.

One of the key issues identified by Justice Mwita was the discriminatory nature of the model. The system divides students into categories based on factors such as the type of school they attended, their age, and their household income. “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 remarked. By Kamau Muthoni, The Standard