The High Court of Kenya has issued a conservatory order directing universities to admit all students, regardless of whether they have failed to raise or fully pay school fees under the New Higher Education Funding (HEF) Model.
While delivering the court order, Justice Bahati Mwamuye stated that the application filed by the Consumer Federation of Kenya (COFEK) meets the required threshold for the grant of immediate conservatory orders ex parte.
“Pending the inter partes hearing and determination a conservatory order be and is hereby issued prohibiting the Respondents jointly and severally, and all Public Universities and Public Institutions of Tertiary Learning, from refusing to admit and/or provide learning, training, and/or access to facilities for any student or prospective student on the basis that they have failed to raise or fully pay the fees stipulated under the New Higher Education Funding Model, the New University Financing Model, or the New TVET Financing Model,” reads part of the court order
The court stated that its preliminary assessment of the case revealed that the Petitioners/Applicants are alleging both imminent and current violations of the Constitution and statutory law.
Petitioners Outline Negative Effects of Funding Model
Furthermore, the petitioners argued that these violations are already adversely affecting hundreds of thousands of individuals set to join or continue their education at public universities in the country under the New HEF Model.
“The Petitioners/Applicants contend that those persons will be locked out from tertiary education on unconstitutional and illegal grounds arising from what they term an opaque and discriminatory funding model that would especially adversely affect persons from pour backgrounds and deny them an opportunity to pursue higher learning,” the court documents read.
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Additionally, they argued that the funding model is contrary to the provisions of the existing law, and that the illegal variation of the same also infringes on the legitimate expectation of learners and their sponsors as well as violating their social and economic rights.
Court Issues Other Orders
The court directed that the Application dated 22/08/2024 be certified urgent and shall be heard on a priority basis.
The Petitioners/Applicants were asked to serve the Respondents and the Interested Parties with the Application, the Petition, and the Court Order by close of business 26/08/2024 and file an Affidavit (s) of Service in that regard by close of business 27/08/2024.
Further, the Respondents and Interested Parties will file and serve their responses to the Application dated 22/08/2024 by close of business 06/09/2024.
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The Petitioners/Applicants shall be at liberty to file and serve a rejoinder, if need be, by close of business 13/09/2024.
The matter shall be mentioned to confirm compliance and for issuance of further directions and/or orders on 18/09/2024.
New HEF Model Criticized
This comes after the placement process was criticized for incorrectly categorizing needy students into loan bands designated for families with higher incomes, leaving many unable to afford the costs associated with their education.
Commenting on the funding saga, Chief Justice Marthe Koome stated that there will be a serious inequality gap in the universities if the current model is implemented as it is and called for a review of the whole structure.
“That a child who has qualified to go to the university can be there crying, saying I have been put in Band 5 when I ought to be in Band 1 and therefore, I cannot afford to go to the university,” Koome said.
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