Court suspends NHIF claims committee over constitutional concerns

In a decision delivered by Justice R. Nyakundi, the court issued conservatory orders prohibiting the committee—established through Gazette Notice No. 4069, Vol. CXXVII—No. 64 dated March 28, 2025—from compiling reports, issuing recommendations, or carrying out any actions under the notice.

The orders will remain in effect until the petition is heard and determined.

“Pending the hearing and determination of this Petition, a conservatory order is hereby issued suspending the operation of the NHIF Pending Medical Claims Verification Committee... and restraining the committee from compiling any report, recommendations, or undertaking any actions pursuant to the said Gazette Notice,” Justice Nyakundi ruled.

The court also prohibited Health Cabinet Secretary Adan Duale, the Principal Secretary, and the Attorney General from facilitating the committee's operations or acting on the basis of the Gazette notice.

Justice Nyakundi noted that the petitioners had met the legal threshold required for granting conservatory orders. However, he emphasized that the ruling did not reflect the court’s position on the substantive merits of the case, which remains pending.

“I emphasize again that this determination in no way prejudges the merits of the main petition, which will be determined after full arguments from all parties,” the judge stated.

The petitioners—led by Nakuru-based surgeon Dr. Benjamin Magare Gikenyi and three others—contend that the formation of the committee by the Health CS was arbitrary and lacked constitutional or legislative backing.

They argue that the committee's mandate, which includes auditing NHIF claims dating from July 2022 to September 2024, infringes on the constitutional authority of the Auditor-General as outlined in Article 229(4)(g) of the Constitution.

“The committee established by the Gazette Notice has been tasked with scrutinizing and auditing NHIF claims spanning a specific period. If the committee proceeds to complete its mandate before the constitutional questions raised in the petition are determined, there would be limited practical remedy available even if the petition were ultimately successful,” the court observed.

The petitioners further argue that any legitimate audit of NHIF should be initiated through a formal request by the Cabinet Secretary to the Auditor-General, as stipulated in Article 254(2) of the Constitution and Section 37 of the Public Audit Act.

The matter is scheduled for mention on June 2, 2025.