Blow to ex-NHIF workers as court blocks automatic absorption by SHA

The fate of defunct National Insurance Health Fund (NHIF) employees who were to be internally absorbed to the Social Health Authority (SHA) has been sealed after a court in Nairobi declined to lift orders requiring all jobs to be externally advertised. Employment and Labour Relations Court Judge Byrum Ongaya, in his ruling, said SHA Chief Executive Mercy Mwangangi had not demonstrated that its services had been hindered, as those who previously worked in NHIF remain in office until new staff are competitively recruited. "It is paramount and not lost to the court's consideration and attention that in the transition, the applicant (SHA) must continue rendering service and which is not impaired to the extent that the staff of the defunct NHIF are in place until the transition is undertaken and concluded along the directions set out in the legislation and elaborated in the ruling," said Justice Ongaya. He observed that the elephant in the room was not that those in NHIF would lose their jobs but rather, whether the process of their recruitment was open and competitive, as required by law. The judge said those who are currently working for the government health insurer and want to continue working should equally apply for the same or other positions in the institution, but not as an automatic transition. "It should otherwise be obvious that the staff purportedly recruited pursuant to the internal advertisement cannot hold onto the illegal and unconstitutional process to justify the illegitimate purported recruitment and appointments," he said adding that they should continue working as temporary staff until their fate is determined as per the court orders. In the case, Dr Mwangangi stated that Justice Ongaya failed to consider that there were two other separate cases regarding recruitment, shortlisting, interviewing, and appointment to the vacant positions. She said that a separate judge, Justice Bernard Manani, had given SHA the go-ahead to internally recruit staff from NHIF in a case filed by the Kenya Union of Commercial Food and Allied Workers against NHIF, the Attorney General, the Ministry of Health, and SHA. According to her, the workers union case ought to be consolidated with the one filed by Said Omar Abdille before Justice Ongaya. Mwangangi argued that the court should also find that those who had already been recruited should be deemed to have been legally appointed. She asserted that the court's orders had far-reaching implications for third parties who had successfully applied and been recruited to the positions of Directors and Deputy Directors in SHA, from NHIF and others who had been shortlisted. She said those who were affected had not been given a chance to be heard. In reply, Abdille's lawyer, Mohamed Duwane, said that internal advertisement would simply lock out qualified Kenyans from applying for the advertised jobs. According to Duwane, running SHA effectively would be a mirage as the defunct NHIF faced numerous allegations of corruption, mismanagement, and inefficiencies over the years. " The matter is of public interest and entails the recruitment of public officers and allowing the application shall negatively prejudice the petitioner and the public at large in a way that cannot be restored thereby rendering the petition dated April 28,2025 nugatory," he argued. Duwane said thay Mwangangi had not demonstrated that the court had made an apparent error or she had discovered new information that would warrant the court to either review or suspend its orders. In his initial ruling, Justice Ongaya said that it is unfair to exclude other competitive Kenyans from job opportunities by limiting employment to those who were previously employed under the now-defunct National Health Insurance Fund(NHIF). "An order of mandamus hereby issued compelling the 1st respondent to advertise, all vacancies in its approved establishment envisaged in subparagraph 6(2) of the First Schedule of the Social Health Insurance Act, 2023 including positions of Quality Assurance Officers, County Coordinators, Directors, Deputy Directors and other advertised roles or vacancies herein, through an open, fair, competitive, and transparent process in accordance with the law devoid of restrictions and limitations,"ordered Justice Ongaya. The judge also ordered SHA not to continue or process applications it received from interested persons as advertised in March this year. Omar filed the case, stating that the recruitment process was being conducted in a closed, opaque, and discriminatory manner. He argued that the rights to equal opportunity and fairness were violated. His lawyer, Duwane further stated that SHA treatment of staff of the defunct NHIF as "internal" candidates and limiting the recruitment to them violated rights of other Kenyans, terming it discriminative and lacking fair administrative process. The man sued SHA, the Public Service Commission, the MoH, and the Attorney General. "The on-going internal recruitment is not stopped by the interim order as prayed for, the petitioner and many qualified and experienced job seekers and Kenyans will be locked out of recruitment by the 1st respondent and will be highly prejudicial, and the petition rendered an otiose and mere academic exercise,"argued Duwane. SHA, MoH, and the Attorney General did not oppose the case. Instead, they argued that their position was similar to that of the PSC. The commission argued that, under the First Schedule to the Social Health Insurance Act, No.16 of 2023, the staff of the defunct NHIF are required to be given priority. It stated that the schedule is the legal basis for internal advertisements as opposed to external advertisements. In documents filed before the court, PSC gave SHA a 12- tier grading structure. The authority ought to have 485 posts, of which 430 ought to be in technical services, while 55 are administrative. In the organogram, at the helm is the CEO, followed by the director, deputy director, assistant director, principal officer and a principal assistant officer, senior officer with a senior assistant officer. In addition, there is an officer 1 with an assistant officer 1, an officer 2 with a similar assistant, and a senior driver at the same level. The lowest job cadre is that of an office assistant. In the CEO's office, there should only be three staff members: the principal office administrator, the senior driver, and the senior office assistant. In the communication department, the authorized staff number was 10, with the Deputy Director of corporate communication leading the team. In addition, the legal department was allocated six staff members, while the provider and beneficiary administration directorate was allocated three. According to the document, the beneficiary registration department should have 10 staff, while the public education and awareness department should have eight. In the meantime, the standard and quality assurance department was allocated 26 staff positions while funds and finance management got three. The primary healthcare fund department, the social health insurance fund department, and the emergency, chronic and critical illness fund department each got six. The county operations department carried the most significant chunk of staff with 330 positions being created in SHA. It emerged that SHA recruited Pariken Sankei as the director of internal audit, Robert Ingarisa (director of funds and finance management), Ibrahim Mohamed Alio (director of corporate services), and Hazel Koitaba (director of provider and beneficiary management) for a five-year term starting April 10 this year. In addition, the authority appointed Reuben Mutwiri, Phyllis Nyakiba, Halima Gurai, Martin Ayoo, Margaret Nyambura, Irene Akinyi, Fransisca Wavinya, Douglas Odhiambo, Andrew Kipkurui as deputy directors on permanent and pensionable terms.

Blow to ex-NHIF workers as court blocks automatic absorption by SHA

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