By Judy Ogutu
The National Hospital Insurance Fund ( NHIF) caretaker board which was
appointed by President Mwai Kibaki two months ago has been suspended.
High Court Judge, Justice Weldon Korir suspended the caretaker board
on Thursday saying President Kibaki did not follow the law in doing so.
“There is an apparent non-compliance with the provision of the law. In
the circumstances I agree with the applicants that the said decision
should be suspended pending hearing and determination of the
substantive notice of motion,” Justice Korir ruled.
Kenya Medical Association (KMA) went to court seeking for
temporary orders suspending Kibaki’s decision pending hearing and
determination of the case.
KMA had accused the President failing to follow the requirements of
Section 4 of the NHIF Act which requires him to appoint the Permanent
Secretary (PS) Treasury to the board or his representative.
That section of the law, they further argued also requires the
appointment of a nominee from the Kenya National Farmer Union.
In reply, the respondents argued that the decision had already been
made and "allowing the caretaker board’s suspension at this stage
would amount to allowing the main application without hearing the
merits of the case."
Justice Korir said in his view, the fact that a decision has been made
cannot prevent the court from issuing a stay order (temporary order).
“The court cannot allow an illegality if such an illegality has been
brought to its attention. In the case before me, the applicant argues
that the President ought to have composed the new board in accordance
with Section 4(1) of the NHIF Act,” the judge said.
The said section, he added, clearly states who should be appointed
members of the NHIF board.
KMA had contended that President Kibaki failed to take into
consideration the Minister’s power to appoint two individuals to the
board. Also required in the board is the chairman of KMA, which
according to them was not done.
It had also argued that as much as the President has powers to
constitute NHIF board, he should do so in accordance with the relevant
They argued that the manner in which he exercised his powers in
appointing the caretaker board went against the law.
Two months ago, President Kibaki appointed a caretaker board following
an alleged Sh4.3billion civil servants health scheme scandal.
On May 7, 2012 Prime Minister Raila Odinga issued a statement
suspending the NHIF board. On May 9 Kibaki appointed the members of a
They alleged Kibaki’s action to appoint the caretaker board
“constitutes an illegality which ought not to be allowed to stand.”
The association also claimed that members of KMA have suffered because they
were not given an opportunity of representation in determining the
future health care in the country.
This, they claimed, is because they were being denied opportunity at the
NHIF caretaker board.
Justice Korir said he had looked at the Kenya Gazette Notice and the
same was not in agreement with Section 4(1) of the NHIF Act.
He noted that the case was of public interest and directed the parties
to file and exchange the necessary documents before July 27 when the
case will be heard.