Less than two weeks after Health Cabinet Secretary Aden Duale gazetted the formation of a committee to address the health sector's ongoing issue with pending bills owed by the defunct National Hospital Insurance Fund (NHIF) to medical facilities, four petitioners have moved to court to challenge the decision.
The petitioners, including Nakuru-based surgeon Dr. Magare Gikenyi, have filed a constitutional petition at the High Court in Eldoret.
In their petition, they raise six key issues, with one of the primary concerns being the alleged overreach of the CS's role, specifically accusing him of usurping the powers of the auditor general.
In their petition, Gikenyi, together with Eliud Matindi, Dishon Mogire, and Philemon Nyakundi, listed the committee members, CS Duale and the Attorney General, as the respondents.
The four argue that Duale's gazettement was unconstitutional, terming it as 'a roadside declaration.'
''The legal/constitutional basis of the impugned appointment of the impugned NHIF Committee of “National Health Insurance Fund (NHIF) Pending Medical Claims Verification Committee Through Gazette Notice No. No.4069 Vol. CXXVII—No. 64 Of 28th March 2025 ” was never known to anyone and was a ‘roadside declaration' without any legal and constitutional basis,'' read part of their petition.
The four now want the court to declare the committee null and void over the unlawfulness surrounding its formation.
''That in accordance with Article 2(4) of the Constitution, the petitioners impugn the constitutional validity of the impugned gazette notice in its entirety. That cabinet secretary violated numerous provisions on Page 11 of 14 and 12 of the Constitution and the law in establishing the said committee, its membership, terms of reference, duration, and secretariat,'' the petition added.
Further, they petitioned the court to certify the case as urgent and deserving to be heard even without the presence of the respondents, which include the CS and the AG.
In a gazette notice published on March 28, Duale announced that the committee would address the backlog of unsettled medical claims that has threatened to cripple the sector, especially with complaints from the private and mission-based hospitals.
''It is notified for general information of the public that the Cabinet Secretary for Health has constituted a committee to be known as the National Health Insurance Fund (NHIF) Pending Medical Claims Verification Committee (hereinafter referred to as 'the Committee'),'' read part of the notice by Duale.
James Masiro Ojee was appointed the chair of the committee, which consisted of eighteen other members who will scrutinise all pending claims accumulated between July 1, 2022, and September 30, 2024.
Initially, legal experts raised questions over the legality of the committee, arguing that its fate could likely follow a suit where the High Court, on March 6, suspended President William Ruto's task force on health audit.
In the ruling, Justice Bahati Mwamuye declared the Presidential Task Force on Health Audit unconstitutional, stating that it had unlawfully usurped the role of the Kenya Human Resources Advisory Council, rendering its formation and operations illegitimate.
