Court battles bleed billions from public universities

Education CS Julius Ogamba. [File, Standard] Public universities are bleeding billions of shillings through court awards and settlements, piling onto the weight of an already crumbling higher education sector. An analysis by Sunday Standard can now reveal that the institutions are exposed to more than Sh30 billion in court cases, arbitration awards, and pending claims - money that ultimately comes from the taxpayer. The Technical University of Kenya (TUK) stands out as the biggest casualty, with liabilities exceeding Sh25 billion, despite operating on a Sh10 billion budget. In July 2024, the university was ordered to pay Gerald Muia Kariku Sh1.78 billion, of which only Sh603 million has so far been settled. Two months earlier, in May, Pamela K. Butalanyi secured an award of Sh928 million, which remains pending. Other disputes include a Sh2.03 billion claim by former staff member Nyaru D. Onaya Odeke that is still before the courts, and a Sh427 million award to Charles Omolo Makunja in October 2023, which has only been partly settled. The University of Nairobi (UoN), the country's oldest institution, has also been crippled by courtroom losses, with more than Sh2.6 billion tied up in concluded or pending cases, according to the Treasury's June 2024 report. Among them is a staggering Sh1.4 billion claim by Wathanagong Holdings Ltd, which is still unresolved. Consultants such as Sonag Ogoda & Associates and Multiscope Consulting Engineers are demanding Sh193 million and Sh136 million respectively, while contractors including NK Brothers and Laton Engineering have also turned to the courts. Many of these disputes date back to major construction projects such as the UoN Towers. Sonag Ogoda & Associates, a surveying and consultancy firm, pursued arbitration after the project stalled over unpaid fees, while Multiscope Consulting Engineers, the engineering consultant, litigated against UoN after its contract was terminated. NK Brothers, a contractor whose claim dates back to 1990, sued the institution for overdue payment of a final certificate of about Sh50.36 million after completing a hall project. Wathanagong Holdings Ltd and others filed suit for alleged losses in Civil Suit ELC 116 of 2015, while smaller but still significant cases include Jerry Magutu and 20 other employees who sued the university in 2017 and were awarded Sh275 million in entitlements, as well as Chuna Savings and Credit Co-operative, which is pursuing Sh317 million in unpaid dues. Laton Engineering Ltd similarly pursued arbitration against UoN for contractual disputes. Collectively, these cases have left the institution among the most heavily litigated in the country. Moi University has not been spared, with legal exposure already surpassing the half-billion mark. In one high-profile case, Otto Mruttu & Partners secured an award of Sh200 million in principal, Sh78 million in interest, and Sh4.5 million in costs. In 2023, the institution was ordered to pay Mediheal Hospital and Fertility Centre Sh126.8 million for breach of contract, alongside Sh6.3 million in costs. An older arbitration award in favour of Vishva Builders, first issued in 2007, had by 2019 grown to Sh161 million, inclusive of Sh66 million in interest and Sh9 million in arbitrator's fees. Smaller but still costly awards against the university include Sh28.6 million to the Kenya Broadcasting Corporation for unpaid services, Sh8.7 million to MFI Document Solutions, and Sh4.8 million to a group of staff led by Jack Otieno Soga. Smaller universities, though not dealing with figures of such magnitude, have also been dragged into the courtroom. Maasai Mara University was hit with a Sh16.4 million award in June 2024, of which it has already cleared Sh13.3 million. Bomet University settled a Sh4.8 million dispute in 2023, while Turkana University College continues to grapple with a Sh21.4 million claim from 2022. Machakos University has been at the centre of several high-profile claims brought by both students and staff. The most notable was the case of Catherine Njeri Wanjiru vs Machakos University (Petition E021/2021), in which a former student sued the institution for using her graduation photo in promotional material without her consent. The High Court found that the university had violated her constitutional rights to privacy, image, and publicity under the Data Protection Act, awarding her Sh700,000 in damages. Another case, Gideon Omare vs Machakos University (2019-2021), revolved around a student's discontinuation from a degree programme, which he argued breached fair administrative action. The university has also been sued by lecturers including Fredrick Ogola and Rose Ogongo, both of whom brought employment-related claims involving wrongful dismissal and unpaid benefits. Experts now warn that unless urgent reforms are made, these legal liabilities could cripple the sector entirely. "Universities are no longer centres of learning alone; they are becoming perpetual litigants. Every shilling spent on legal payouts is a shilling taken away from research, innovation, and students," said University Academic Staff Union organising secretary Onesmus Maluki. According to Maluki, the effect of this litigation crisis is severe. "It is the students who ultimately bear the brunt of the declining quality of education," he said. Kenya Universities Staff Union (KUSU) secretary general Charles Mukwaya faulted administrators for allowing avoidable disputes to end up in court, saying the billions being lost reflect a culture of impunity. He warned that universities are turning into "perpetual litigants" instead of bastions of learning. "What we are seeing is gross mismanagement of public universities. Instead of focusing on teaching and research, managements are spending more time in courtrooms. This is unacceptable, because at the end of the day it is workers and students who suffer," Mukwaya said. Civil society groups have also raised the alarm. Elimu Bora Working Group executive director Boaz Waruku said the rising liabilities represent "stolen opportunities" that should have improved infrastructure, equipped labs, and strengthened teaching. He argued that taxpayers are being punished twice-first through budget allocations, and again through ballooning court awards. "The billions being lost in legal claims represent stolen opportunities for our children. That money could be building libraries, equipping laboratories, or hiring more lecturers. Instead, it is being diverted to court settlements." Waruku told the Standard. Education lobbyist Janet Ouko echoed similar concerns, pointing to poor governance and opaque procurement systems as the root cause of the mess. She noted that every payout diverts scarce resources away from classrooms and libraries, diminishing the quality of higher education. "Every shilling that goes into paying contractors and consultants through courts is a shilling taken away from the student experience. Parents who sacrifice to educate their children deserve better." Ouko said.

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