The High Court in Eldoret has declared unconstitutional the Pending Medical Claims
Verification Committee formed by Health Cabinet Secretary Aden Duale to audit claims
against the defunct National Hospital Insurance Fund (NHIF).
Justice Reuben Nyakundi ruled that the 19-member committee, established through
Gazette Notice No. 4069 of March 28, 2025, had no constitutional or statutory basis and
contravened Article 31 of the Constitution as well as the Social Health Authority (SHA)
Act. He found that the powers conferred on the CS by legislation had been used “for a
purpose different from that envisaged by the law,” rendering the decision void from
inception and without legal effect.
Nyakundi held that the CS had no authority under the Constitution or the National
Government Coordination Act to empanel such a body, declaring it “unconstitutional in
its entirety.” He also warned that the committee’s mandate risked exposing patients’
personal medical data, as verifying claims would inevitably require access to identifiable
medical records, infringing the right to privacy.
The petition was filed by Nakuru-based medic and activist Dr. Magare Gikenyi,
alongside Eliud Karanja, Dishon Keroti, and Philemon Abuga. The four argued that
hand-picking individuals who were neither NHIF nor SHA employees, public servants,
nor staff of the Auditor-General to review sensitive and confidential medical records in
the name of claims verification was a violation of Article 31 of the Constitution. They
said such access would unlawfully expose private patient data and details of their
medical conditions.
The petitioners further contended that the committee duplicated the constitutional
mandate of the Auditor-General under Article 229(4)(g) and Section 7 of the Public
Audit Act, usurped the powers of independent oversight offices, and violated the Public
Finance Management Act and Digital Health Authority regulations. They argued that if
an audit was necessary, the CS should have engaged the Auditor-General rather than
creating a parallel structure, and that the move breached Kenyans’ legitimate
expectation that state officers will act within constitutional and statutory limits.
Justice Nyakundi, in granting the orders sought, stated:
“Upon considering the pleadings, submissions, replying affidavits and attendant
authorities, I find that the petition is merited. In the premises, the petition succeeds.”
The court issued an order of certiorari quashing the committee’s formation, barred any
reliance on its work, and directed that any funds spent on its operations be refunded to
the Consolidated Fund.
The ruling means that any verification of NHIF’s pending medical claims will have to be
handled by constitutionally recognised oversight bodies such as the Office of the
Auditor-General and the Directorate of Internal Audit not specially appointed
committees.
Written by Joyce Nzomo
