Lawyers have sued the National Hospital Insurance Fund (NHIF) for refusing to recognise affidavits as proof of marriage.
The suit, lodged by the Law Society of Kenya (LSK) at the High Court in Nairobi, is expected to save millions of Kenyans whose spouses risk being locked out of the NHIF cover unless they acquire marriage certificates.
Through lawyer Paul Ogendi, LSK argued that NHIF’s decision to reject affidavits commissioned by lawyers as proof of marriage was illegal, unconstitutional, null and void.
“The NHIF’s board unilateral decision was done in bad faith and contrary to rules on natural justice. It is an abuse of process that will deny many Kenyans access to justice and medical care,” said Mr Ogendi.
In February, NHIF issued a directive that it would only accept marriage certificates and affidavits signed by magistrates, and not lawyers, as proof of marriage when including a spouse under its cover.
But the lawyers submitted that the decision was unreasonable and meant to deny some of them a source of income where the law allows any qualified and registered advocate to administer oaths throughout the country. “The decision was pure bias, as NHIF chose to selectively approve affidavits commissioned by magistrates while not giving us a reason why they don’t want us to sign the same,” said Ogendi.
He said the decision failed to take into consideration the fact that lawyers have no powers of their own to commission marriage affidavits but are guided by statutes approved by the Chief Justice.
The lawyers further submitted that the requirement that only magistrates commission marriage affidavits imposed an unnecessary burden on the judicial officers whose attention would be split between judicial work and signing affidavits. “There are not enough magistrates spread across the country to ensure that all married couples who want affidavits are served,” said Ogendi.
The law society’s Chief Executive Officer Mercy Wambua swore that lawyers were not given a chance to present their views before NHIF made the decision against them.
The lawyers, therefore, want the court to quash NHIF’s resolution.
They also want a declaration that the decision violated the rights of married citizens to seek justice. They want the court to suspend any resolution already made to disregard affidavits signed by advocates.