Court suspends NHIF claims audit taskforce operations
Justice Reuben Nyakundi issued a conservatory order restraining the committee from compiling any reports, issuing recommendations, or undertaking any actions pursuant to the contested Gazette notice dated March 28, 2025.
The High Court in Eldoret has temporarily stopped the operations of the National Health Insurance Fund (NHIF) Pending Medical Claims Verification Committee.
In a ruling delivered by Justice Reuben Nyakundi on Tuesday, he issued a conservatory order restraining the committee from compiling any reports, issuing recommendations, or undertaking any actions pursuant to the contested Gazette notice dated March 28, 2025.
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"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," ruled Justice Nyakundi.
The ruling also barred the Cabinet Secretary for Health, Aden Duale, the Principal Secretary, and the Attorney General from taking any steps in reliance on the Gazette notice or facilitating the operations of the suspended committee.
"Having carefully considered the test for granting conservatory orders, I am satisfied that the petitioners have met the threshold. I emphasise 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 court noted
The judge said the orders will remain in force pending the hearing and determination of a petition filed by Dr. Magare Gikenyi and three other petitioners.
The petitioners in the case, Nakuru surgeon Dr Benjamin Magare Gikenyi and three others, argue that the establishment of the committee by the Health Cabinet Secretary lacked a legal or constitutional foundation, terming it an arbitrary decision with no legislative backing.
They claim that the creation of such a body amounted to a "roadside declaration" devoid of statutory authority.
They argue that the committee's mandate to scrutinise and audit NHIF claims dating from July 2022 to September 2024, arguing that this role directly encroaches upon the constitutional mandate of the Auditor-General as provided under Article 229(4)(g) of the Constitution.
"The committee established by the Gazette Notice has been tasked with scrutinising 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 petitioners argued.
The court, however, noted that the constitutional questions raised would risk becoming academic.
According to the petitioners, any legitimate audit of NHIF should be initiated through a formal request by the Cabinet Secretary to the Auditor-General, as stipulated under Article 254(2) of the Constitution and Section 37 of the Public Audit Act. The case will be mentioned on June 2.
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