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The High court has quashed a directive by the National Health Insurance Fund (NHIF) that sought to disregard affidavits commissioned by advocates as proof of marriage for spouses to benefit from the scheme.

Lawyers had moved to court to challenge the announcement made by NHIF had on February 22, last year, that it would only accept marriage certificates commissioned by magistrates.

NHIF had argued that some beneficiaries were listing their girlfriend’s and spouses as beneficiaries, hence frauding the scheme.

“The process of identification is necessary to avoid fraud or extending benefits to unqualified persons, resulting in loss of public funds,” NHIF had argued.

Justice John Mativo ruled that the directive by NHIF was irrational, unreasonable and lacked a legal basis and added that the fund had no powers to give such a direction. The judge also maintained that lawyers were judicial officers and tapped the powers given by the Constitution to administer and commission oaths.

The respondents have no legal mandate to prescribe which documents an advocate once appointed under the Act can commission. The impugned decision is not supported by the law. Differently stated, the respondents acted outside of their legal mandate,” ruled Justice Mativo.

“There is nothing to show that a reasonable body or person, faced with the same set of facts and circumstances and properly directing his mind to the law would have arrived at the same decision. In other words, applying the above tests of unreasonableness and irrationality,” the further judge added.

The Law Society of Kenya (LSK) had in their suit termed the directive selective, biased, saying it was not subjected to public participation and was informed by an error in the law.

Through lawyer Paul Ogendi, LSK also argued that there are not enough magistrates spread out across the country to effectively ensure citizens are able to have their affidavits commissioned and that the directive also imposed an unnecessary burden on magistrates who already have a duty to ensure that they deliver justice in the courtroom.

In April 2018,  judge John Mativo had issued a temporary order suspending the directive by NHIF after lawyers filed a suit to challenge it, pending the hearing and determination of the case.


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