Legal battle erupts over decades of missing insurance payouts for dead civil servants

When John Gitonga’s sister died, he hoped that the government would easily process her death-in-service benefits to take care of her orphaned children.

To-date, he has been in an unending queue, waiting for Godot, as his late sister’s employer, Teachers Service Commission (TSC), shifts the blame to the National Treasury for lack of funds.

 Tired of this, he has opted to go out on a limb by suing the government, claiming that he, alongside many others, have not received at least Sh20 billion in work injury benefits for either deceased civil servants or those who are injured or maimed while at work.

Gitonga, in his court documents exclusively seen by The Standard, said that he decided to dig up the truth from government records, including from parliament, budget estimates, auditor general reports, insurance contracts and correspondence, only to discover that the situation was far worse than his own predicament.

“I bring this petition because the matters set out herein are of grave public importance. The failure to provide lawful insurance cover for public servants, including police officers, teachers, civil servants, prison officers and judiciary staff, and the accumulation of unpaid claims now estimated to exceed Kenya Sh 20 billion, represents one of the most significant and prolonged violations of the constitutional and statutory rights of Kenyan workers in the post-independence era. It is a crisis that has persisted across multiple administrations, has never been brought before a court for comprehensive determination, and continues to cause daily harm to vulnerable families across the country,” stated Gitonga.

He explained that on March 16, 1974, the government introduced the Group Personal Accident (GPA) insurance cover for civil servants and the scheme was managed under Kenya National Assurance Company Limited (KNAC), which collapsed in 1996.

Gitonga further said that KNAC died without settling a substantial amount of claims.

He also narrated that between 1996 and 2005, the government only settled around Sh 216 million against lodged Sh 650 million, leaving Sh 434 million outstanding and which was labelled as time-barred.

He accused administration regimes of coming in and leaving without settling the piling WIBA debt.

In the meantime, he explained that in September 2006, the government adopted its own insurance model, through the National Treasury and designated the Principal Secretary as the underwriter.  However, he argued that the self-insurance model, by 2007, had accumulated unpaid Sh 1.5 billion.

By 2022, according to Gitonga, the bedt owed by the government stood at Sh7 billion and three years later, the same had shot by Sh 10 billion, with the National Police Service and Prisons having the lion’s share of unpaid claims.

He said that the insurance scheme shifted from Treasury to the now defunct National Insurance Health Fund (NHIF), which also collapsed  with historical liabilities amounting to more than Sh 4 billion.

“I am deeply conscious that behind every one of the thousands of unpaid claims referred to in this Petition is a human story of loss, hardship and despair. These are widows of police officers killed in the line of duty who have been waiting years for death-in-service benefits that the law entitles them to.”

 “These are teachers who suffered permanent disability in the course of their employment and have received nothing. These are civil servants' families reduced to poverty by the death of a breadwinner, denied the financial protection that Parliament mandated and that was paid for through their own salary deductions. I believe this Petition is brought not merely in the abstract public interest, but for and on behalf of each of those individuals and their families,” continued Gitonga.

He explained that TSC was deducting money from his late sister’s payslip in the hope that her children would get a cushion in the event she left the earth. However, he lamented that despite submitting her claim forms to the relevant government agencies, nothing has been forthcoming.

He alleged that his hope of getting justice for the orphans hit a dead end when the Social Health Authority (SHA) succeeded the NHIF board. According to him, the new scheme’s bosses have taken a position that they cannot continue to administer insurance schemes that were previously under the NHIF or take up the previous schemes’ liabilities.

He asserted that the Kenya Kwanza administration should have first settled the debts under the NHIF before folding it, adding that it is now unclear on whether the government went back to self-insurance scheme and what is the fate of all those who were owed money.

Gitonga wants the court to crack the whip, saying that despite the National Assembly approving the money to be paid to the scheme, it seems to end up in a dark hole. He wants an audit and the court to order that all those responsible face the music.

“I respectfully urge this Honourable Court to grant the reliefs sought in the petition in their entirety, including the declarations of unconstitutionality, the orders of mandamus compelling payment of outstanding claims and premiums, the forensic audit, the structural interdict and the personal surcharge orders against responsible public officers. Only comprehensive and robust relief of this nature will bring genuine accountability for one of the most significant public finance failures in Kenya's post-independence history and will vindicate the rights of the hundreds of thousands of public servants and their families who have been denied the protections the law entitles them to,” he argued.

Gitonga sued the National Treasury, Cabinet Secretary John Mbadi, Ministry of Public Service, Cabinet Secretary Geoffrey Ruku, SHA, Insurance Regulatory Authority, Public Service Superannuation Fund (PSSF) board of trustees, the Public Service Commission, the Teacher Service Commission, the National Police Service Commission, and the Judicial Service Commission.

He also listed 11 private insurance firms, the office of the Auditor General, Controller of Budget, the Attorney General and the National Assembly.