The High Court has temporarily stopped the operations of a controversial committee formed to probe over Sh33 billion in pending medical claims under the National Health Insurance Fund (NHIF), dealing a major blow to a reform initiative spearheaded by Health Cabinet Secretary Aden Duale.
In an order issued by Justice Reuben Nyakundi, the court issued conservatory measures suspending the NHIF Pending Medical Claims Verification Committee an ad hoc taskforce established by CS Duale through a March 28 Gazette Notice.
“Pending the hearing and determination of this Petition, a conservatory order is hereby issued suspending the operation of the committee… and restraining the committee from compiling any report, recommendations, or undertaking any actions,” Justice Nyakundi ruled.
The restraining order also bars Duale, the Ministry of Health, and any persons acting on their instructions from implementing the directives outlined in Gazette Notice No. 4069. All named respondents have been given seven days to respond to the petition.
The lawsuit was filed by Nakuru-based physician Dr. Magare Gikenyi alongside rights activists Eliud Matindi, Dishon Keroti Mogire, and Philomena Nyakundi. The petitioners argue that the formation of the 19-member taskforce bypassed legal channels and encroached upon constitutional mandates.
At the heart of their case is the contention that the committee’s assignment to audit NHIF medical claims spanning from July 2022 to September 2024, trespasses into the Auditor-General’s exclusive domain under Article 229 of the Constitution.
“The CS acted beyond his authority. Only the Auditor-General has the constitutional mandate to audit public funds,” the petitioners claim in court filings.
They accuse Duale of bypassing statutory procedures, noting that if such an audit were necessary, the law requires a formal request to the Auditor-General under Article 254(2) and the Public Audit Act.
Instead, the Cabinet Secretary handpicked members to carry out functions strictly reserved for an independent constitutional office.
The petitioners also raise red flags over the composition of the taskforce.
They argue that the appointment process lacked transparency and competitive merit, allegedly violating Article 232 on public service standards.
Further, they assert the appointees’ qualifications fall short of the standards required for public auditing roles.
They also question how the committee would handle patient data.
The petition warns of privacy breaches if non-state actors gain access to sensitive medical records without proper authorization or patient consent, an alleged violation of Article 31 of the Constitution and the Data Protection Act.
“Allowing unvetted outsiders to access NHIF’s confidential records is a fundamental violation of patients’ privacy rights,” the court was told.
In response, the Attorney General, on behalf of CS Duale and the Ministry, urged the court to dismiss the petition, arguing that no constitutional violations had occurred.
The state’s legal team defended the committee as a non-binding advisory body intended to support internal administrative reviews.
“This committee has no decision-making authority. It is a technical support team helping the Ministry improve performance and address irregularities,” the AG stated.
The Ministry insisted that the taskforce does not undermine the Auditor-General’s powers and that no evidence has been presented to show a breach of legal or constitutional norms. The government’s position is that Cabinet Secretaries are permitted to conduct internal reviews as part of their executive functions.
Further, the AG warned that halting the committee’s work could hinder urgent reforms in the health sector, delay accountability measures, and ultimately harm public service delivery.
“Government actions enjoy a presumption of legality. The petitioners’ claims are speculative and don’t meet the threshold for suspending executive action,” the state counsel added.
