The Court of Appeal has temporarily stayed a High Court ruling that nullified Kenya’s new university funding model, allowing the government to go ahead with the Variable Scholarship Loan Funding Model.
On Wednesday, a three-judge panel—Justices Patrick Kiage, Weldon Korir and Prof. Joel Ngugi—granted a stay of execution of the judgment delivered by High Court judge Chacha Mwita on December 20, 2024. This means the government can continue with the funding model until the appeal is heard.
Stay of High Court Ruling
Lawyers for the parties in the case have agreed to a compromise, allowing the implementation of the funding model pending the final verdict. The appellate judges ruled:
“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.”
The Attorney-General, HELB and the Trustees of the Universities Fund have been ordered to publicise an appeals mechanism for students who feel they have been unfairly funded or categorised within 14 days from the ruling.
Concerns about the Funding Model
Justice Mwita had nullified the funding model, saying it had no legal framework and was not subjected to public participation before implementation. A major concern was the lack of a clear appeals process for students contesting funding decisions which the judge feared could lead to arbitrary decisions.
“It can be an ad hoc body that may decide appeals arbitrarily, capriciously and at whims,” Justice Mwita noted in his ruling.
The appellate court acknowledged this concern and directed that the appeals mechanism be subject to an expedited and proportionate public participation process.
Legal Challenge and Public Participation Debate
The Kenya Human Rights Commission, Boaz Waruku, Elimu Bora Working Group and the Students’ Caucus had challenged the funding model in court, saying it unfairly shifted the responsibility of financing higher education from the state to parents who cannot afford university fees.
Justice Mwita had ruled that implementing such a drastic change without public participation violated Article 10 of the Constitution. He said public participation ensures that affected individuals and stakeholders have a say in policies that affect their lives.> “It’s not disputed that the implementation of the new funding model was not subjected to public participation.”
Government’s Defense and the Future of the Model
The government has defended the new funding model saying the previous one was not working as it did not consider the real cost of higher education especially postgraduate programs. The Ministry of Education has said the new model is designed to address inequalities so that vulnerable and financially disadvantaged students get enough funding.
“The new model is to address the challenges faced by the extremely vulnerable and needy students who were being denied funding at the expense of students whose parents or guardians could pay for education,” the Ministry of Education said.
The case will be heard on priority after the judges’ recess in April. Meanwhile, direct students and universities to prepare for possible changes depending on the final ruling.
Implications and Next Steps
The temporary suspension of the High Court ruling means that for now, the government can continue with the Variable Scholarship Loan Funding Model. However, the pending appeal and the requirement for public participation may be low. Students and parents are encouraged to stay informed as the case unfolds, as the outcome will have big implications for university funding in Kenya.
