Abdile v Social Health Authority (SHA) & 3 others (Petition E078 of 2025) [2025] KEELRC 1552 (KLR)
The bottom line
#Kenya's Employment Court ruled that former NHIF staff have no automatic jobs at SHA — all vacancies must be openly advertised and competitively filled.
What this practically means
#Executive summary
#Key legal issues
#Effect of paragraph 6 of the First Schedule to the Social Health Insurance Act, 2023 on former NHIF staff
Former NHIF staff do not automatically transit to SHA; they are eligible to apply for advertised positions and, if suitably qualified, must be given priority in open competitive recruitment.
The First Schedule provides for competitive recruitment under paragraph 6(2), eligibility of former NHIF staff to apply under 6(3), priority for suitably qualified former staff under 6(4), and options to retire or be redeployed under 6(5). No provision supports automatic absorption or internal advertisement; recruitment must follow the Public Service Commission Act, 2017 procedures.
Constitutionality of the restrictive internal advertisement
The advertisement restricting eligibility to former NHIF staff violated Articles 27, 41, 47 and 232 of the Constitution on equality, fair labour practices, fair administrative action and merit-based public service recruitment.
Because NHIF was defunct, its former staff were never employees of SHA and could not be treated as internal candidates. Restricting recruitment to them locked out the public and offended fair competition, merit and equality of opportunity guaranteed by the Constitution and operationalised through the First Schedule and the Public Service Commission Act, 2017.
Applicable recruitment procedure
SHA must first establish an approved staff establishment, review qualifications of all former NHIF staff, then conduct open competitive recruitment per the Public Service Commission Act, 2017, giving priority to suitably qualified former NHIF staff who apply.
The SHI Act 2023 does not prescribe the process for the approved establishment or recruitment criteria, so Parts IV and VI of the Public Service Commission Act, 2017 apply, including section 37 requiring wide advertisement without discrimination. Former staff not appointed after competitive recruitment may retire or be redeployed once successful candidates assume duty.
Legal principles established
#- Staff of a defunct public body do not automatically transit to the successor body where the statute so provides; they may be given priority as suitably qualified applicants in open competitive recruitment.
- Once NHIF is defunct, its former staff cannot be treated as internal candidates of the successor authority.
Court orders
#- 1.Declaration that SHA's recruitment process restricting eligibility to former staff of the defunct NHIF violates Articles 27, 41, 47 and 232 of the Constitution
- 2.Declaration that former NHIF staff having not automatically transited as staff of SHA under paragraph 6 of the First Schedule of the Social Health Insurance Act, 2023 cannot be treated as internal applicants
- 3.Declaration that the recruitment limiting eligibility to former NHIF staff was discriminatory, unconstitutional and violated fair competition and equality of opportunity under Article 232
- 4.Order of prohibition restraining SHA from proceeding with the March 2025 recruitment process restricted to former NHIF staff
- 5.Order of mandamus compelling SHA to advertise all vacancies in its approved establishment through an open, fair, competitive and transparent process
- 6.Order of certiorari quashing any decisions made pursuant to the impugned internal advertisement
- 7.Each party to bear own costs of the application and petition
- Jurisdiction invoked
- Articles 22, 23, 41, 47 and 258 of the Constitution of Kenya, 2010; sections 3 and 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdile v Social Health Authority (SHA) & 3 others (Petition E078 of 2025) [2025] KEELRC 1552 (KLR)", Case Analysis (2025). Petition and Notice of Motion dated 28.04.2025 (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1552/eng@2025-05-29
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