The High Court in Eldoret has nullified a decision by Health Cabinet Secretary Aden Duale to establish the National Health Insurance Fund (NHIF) Pending Medical Claims Verification Committee, terming it unconstitutional.
Justice Reuben Nyakundi ruled that the creation of the committee through Gazette Notice No. 4069 was in contravention of Article 31 of the Constitution of Kenya, 2010, as read with the Social Health Authority Act.
“The establishment of the NHIF Pending Medical Claims Verification Committee through Gazette Notice No. 4069 has no constitutional or statutory basis and is therefore unconstitutional in its entirety,” Justice Nyakundi said.
The court found that the Cabinet Secretary did not have the mandate under the Constitution or the National Government Coordination Act to form an ad hoc committee of that nature.
Justice Nyakundi issued an order of certiorari quashing the establishment of the committee.
The ruling followed a constitutional petition filed by four individuals, Dr Magare Gikenyi, Eliud Matindi, Dishon Mogire and Philemon Nyakundi, against the Cabinet Secretary, the Principal Secretary in the ministry, the Attorney General and the members appointed to the committee.
The petitioners argued that the decision to form the committee was unlawful and should be annulled.
In his 68-page judgment, Justice Nyakundi noted that after considering the pleadings, submissions, affidavits, and authorities presented, the petition had merit.
He found that the grounds outlined in the petition, including illegality and impropriety, were sufficient to warrant judicial review under Article 23 of the Constitution.
“The powers exercised, though conferred by relevant statutes or legislation, were used for a purpose different from that envisaged by the law. This was a void decision from its inception and, from the standpoint of the Constitution, it has no legal effect,” the judge said.
The court further observed that ad hoc decisions with financial implications, which are not budgeted for, can adversely affect other planned expenditures within a ministry, especially given the current economic climate.
“In this case, the implications of this omission and its effect on the resultant act of the Cabinet Secretary cannot be underestimated,” Justice Nyakundi said.
The committee had been formed through Gazette Notice No. 4069 Vol. CXXVII No. 64 of March 28, 2025, which has now been set aside.
