Gov't appeals judgment that declared new university funding model unconstitutional

The Universities Fund and the Higher Education Loans Board (HELB) have appealed the High Court judgment by Justice Chacha Mwita that declared the new university funding model unconstitutional.

The funding agencies are challenging the judgment, delivered on December 20, 2024, arguing that its consequences could halt learning in universities because of delays in disbursing funds for students continuing their studies. 

They argue that Justice Mwita erred in both law and fact and that the judgement has made it impossible for them to disburse any funds to universities or the students therein, particularly those in the first and second years of studies who were the primary beneficiaries of the unconstitutional funding model.

Universities Fund CEO Geoffrey Monari, in his affidavit, stated that the funding body implemented the model after robust public participation and that it ensured equity and equality, in contrast to the previous model, which focused solely on quality.

He further warned that the judgement could lead to a stalemate in the education sector, as the funding model is no longer able to disburse funds to students. In further defence of the outlawed model, Monari emphasized that it was more cost-effective and efficient in financing higher education.

HELB Acting CEO, Mary Muchoki, in her affidavit, highlighted that the judgement has made it impossible for the loans board to disburse funds to universities and students, placing higher education institutions at risk of immediate and indefinite closure.

She also averred that the judgment would lead to the indefinite suspension of HELB’s role in funding university education. Both entities also confirmed that they are unable to make payments to students due to the prohibitory orders in place.

The Elimu Bora Coalition, the Kenya Human Rights Commission and the students’ caucus had successfully challenged the new funding model on grounds that it was not subjected to public participation, was discriminatory and denied learners their constitutional right to education.

Justice Mwita declared the model unconstitutional and unlawful until the government complied with the constitutional and legal requirements.

The courts certified the matter urgent and ordered that it be heard by a three-judge bench to be constituted by the President of the Court of Appeal.