Spouses applying for medical cover can still use sworn affidavits by lawyers as proof of marriage, pending the outcome of a court case.
This follows a decision by the High Court suspending a directive by the National Hospital Insurance Fund to reject use of affidavits signed by lawyers as proof of marriage for those applying for cover.
Until the case is determined, lawyers will continue earning fees for commissioning affidavits. They charge Sh500 to Sh5,000, while magistrates charge a standard Sh75 to commission affidavits.
Justice John Mativo also allowed lawyers to seek orders to quash the decision by the NHIF. Also granted was an order directing the Law Society of Kenya to file its substantive suit and serve the NHIF and other respondents within 14 days.
Mativo’s order was granted following an application by the LSK.
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magistrates burdened?
The LSK suit stemmed from the decision of the NHIF to recognise and accept only affidavits sworn by magistrates as proofs of marriage, while rejecting those sworn by advocates.
The LSK said the NHIF move violated the law because it infringed on citizens’ rights to access justice.
The lawyers said the decision would burden the magistrates and derail justice. “The requirement that affidavits only commissioned by magistrates are acceptable imposes an unnecessary burden upon the magistrates, who have a duty to ensure they deliver justice in the courtrooms,” the LSK said.
“There are not enough magistrates spread out effectively across the country to ensure the citizens are able to have their affidavits commissioned.”
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It said the directive was an attempt to deprive advocates of powers granted by the law. The society said there were more lawyers in Kenya than magistrates, making it logical to leave the swearing of affidavits to its members.
The lawyer’s body said they were not given a fair hearing before the directive was issued. They said it has a direct impact on their livelihood and breaches the rules of natural justice, which dictate that one must be heard.
Previously, married couples would obtain affidavits sworn by lawyers and use it as proof of marriage. But in June last year, the Attorney General issued a directive that customary marriages be registered, otherwise, they would not be recognised under the law.
Former AG Githu Muigai ordered the registration from August 1 last year. The LSK wants the court to eventually quash the NHIF decision. The case will be mentioned on May 2 for further directions.
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