A second attempt to stop universities from offering bridging, diploma and certificate courses has failed after the High Court dismissed a case that would have locked out learners from transitioning within the institutions.
Justice James Makau in his judgment in a case filed by Robinson Kioko, said that the law is clear on what qualifications each student should have to be enrolled for a course as well as the number of contact hours of study.
He ruled that the law does not give learning institutions leverage to award certificates or allow students to transition to the next level without meeting the minimum requirements.
"This is not intended for all purposes and intentions to be used to allow universities in Kenya to offer bridging or certificate or diploma course contrary to clear provisions of the University Act on eligibility of a student to be admitted for undergraduate, post-graduate, diploma, masters and directorate programme," Justice Makau said.
"The Statute Law (Miscellaneous Amendments) Act, 2014, did not in any way allow universities to offer certificates that would enable students to be admitted in the university."
In 2017, a report prepared by the Commission for University Education (CUE) revealed that many students graduate prematurely without completing the set study time.
In one case, a student sat Kenya Certificate of Secondary Education examinations in 2010 and scored a D+. The student did a certificate programme between May and September 2011, obtained a distinction, and was admitted for a diploma programme at a university before joining a degree course and graduating in December 2013.
At the same time, the report read that some universities admit students based on age, while others were admitted for masters programmes without earning a bachelor's degree.
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It is the second time that the court is being asked to declare the Statute Law (Miscellaneous Amendment) Act 8 of 2014 unconstitutional. The Act paved way for universities to offer certificate programmes.
Kioko argued that opening up universities to offer courses that ought to be taught in technical colleges and other institutions does not respond to the needs of the country to have a technical workforce.
But Education Cabinet Secretary George Maghoha urged the court to throw out the case, arguing that it had been determined by Justice Isaac Lenaola (now a Supreme Court judge) in 2017.
According to Prof Magoha, Kioko had not demonstrated how the State had violated his constitutional rights.
"The law and regulations in question are designed at maintaining and ensuring high professional standards and competence, and the court should as far as possible avoid any decision or interpretation of a statutory provision, rule or by-law which would bring about the result of rendering the system unworkable in practice, or create a situation that will go against clear provisions of the law governing the subject in issue,” Magoha said.
Justice Lenaola had dismissed a case filed by Kenya National Association of Private Colleges that represents 200-odd private colleges that are licensed to offer bridging, certificate and diploma courses.
The group's case was supported by the CUE, which argued that changes to the law weakened its role as the regulator of university education by making it harder to carry out its mandate.
"The amendments were introduced on the floor of the National Assembly and passed without any reference to the public as well as relevant stakeholders, and against the ruling of the Speaker to the contrary," CUE said.