Kinyua v Attorney General; National Health Insurance Fund & 3 others (Interested Parties) (Petition E001 of 2023) [2023] KEELRC 1144 (KLR)
The bottom line
#A Kenyan court dismissed a challenge to the removal of NHIF board members because the petitioner had no evidence proving the removals were unconstitutional.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the petitioner in public interest litigation
The petitioner had the necessary standing, having alleged unconstitutional revocation of appointments under the NHIF Act and acting in the public interest
The respondent argued the dispute was private in nature and that Article 22(2)(c) could not be used to sue for named public officers without instructions. The Court held that because the appointments and revocations were made under the NHIF Act, the allegations engaged the Constitution, and Article 258(1) entitled the petitioner to sue. Acting in the public interest was established, so no bar to standing arose.
Whether the dispute concerns an employment relationship, given the Rift Valley Water Services Board authority
The dispute relates to employer-employee relationship because the 2nd to 4th interested parties were public/state officers under the NHIF Act and State Corporations Act, distinguishable from company directors under the Companies Act
The Court of Appeal in Rift Valley Water Services Board held company directors are not employees, so the Employment Act did not apply. The Court distinguished that holding as confined to directors under the Companies Act. Guided by Narok County Government v Birir, it held public officers are servants of the people and due process under Article 236 applies, so state officers are engaged in employment under constitutional and statutory frameworks.
Whether the revocation of the 2nd to 4th interested parties' appointments violated Articles 10, 41, 47, 50 and 236
No violation was established; the petition failed
The petitioner proved only the appointment and revocation by Gazette Notices. The pleaded procedural improprieties and substantive grounds were not supported by affidavit or other evidence. The affected interested parties were served but chose not to participate, which reinforced the conclusion that the allegations were vacuous. A court cannot presume violations without material facts and evidence.
Legal principles established
#- Every person may institute proceedings claiming a contravention of the Constitution under Article 258(1), and a petitioner alleging unconstitutional revocation of appointments under a statute can establish public interest standing
- A board member or director in the public service, being a public or state officer, is distinguishable from a director of a company registered under the Companies Act; the pleasure doctrine has been replaced by due process under Article 236
- Alleged constitutional violations must be established by supporting material facts and evidence; a court will not make presumptive findings in favour of violations
Court orders
#- 1.Judgment entered for the respondent against the petitioner for the dismissal of the petition
- 2.Each party to bear own costs of the proceedings
- Jurisdiction invoked
- Articles 22(1) & (2), 23 and 258 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Jane Atieno (suing on her own behalf and on behalf of the estate of the late Joseph Ochieng) v Kenya Commercial Bank Limited & 2 others[2010] KEHC 948 (KLR)22 Jul 2021followed
Cite this brief
#Cite this brief
Caselaw, "Kinyua v Attorney General; National Health Insurance Fund & 3 others (Interested Parties) (Petition E001 of 2023) [2023] KEELRC 1144 (KLR)", Case Analysis (2023). Petition dated 05.01.2023 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1144/eng@2023-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.