CORAM: Before Justice R. Nyakundi
RULING
(On the Certificate of Urgency dated 30th July 2026)
1. There has been placed before me, ex parte and under a Certificate of Urgency dated 30th July 2026, a Petition together with a Notice of Motion of even date. The Petitioners impugn the levying of a “2% HIMS System Utilization Fee” against claims payable by the 1st Respondent to health care providers, and seek, in the main, conservatory orders suspending the deduction pending the hearing and determination of the Petition.
2. The Motion is expressed to be brought under Articles 20, 21, 22, 23(3), 48, 50(1), 159(2)(d), 165, 258 and 259(1) of the Constitution and Rules 3, 4, 8, 10, 11, 13, 15, 18 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
3. I have considered the Certificate of Urgency, the Petition and the Motion. Before the Court can turn its mind to the question of urgency and to the interim relief sought, a threshold difficulty arises on the face of the record.
4. The Notice of Motion is not accompanied by a supporting affidavit properly filed with, and forming part of, the application. The body of the
Motion itself recites that it is “grounded on the annexed affidavit of Dr.
Magare Gikenyi J. Benjamin,” yet no such affidavit, duly sworn and with the documents relied upon exhibited and marked in accordance with the Oaths and Statutory Declarations Act, has been placed before me as part of the application.
5. That omission is not merely formal. An application of this nature is one founded on contested questions of fact — when and by whom the impugned fee was introduced, the legal instrument (if any) under which it is levied, the role of the 2nd Respondent, the sums so far deducted, and the prejudice said to flow from the deduction. Facts of that character must be deposed to on oath. Order 51 Rule 1 as read with Order 19 of the Civil Procedure Rules, 2010, and Rule 11 of the Mutunga Rules, contemplate that an application seeking interlocutory relief will be supported by affidavit evidence. Averments in a certificate of urgency, or grounds recited on the face of a motion, are not evidence.
6. The consequence is that the Court has no sworn material upon which to apply the settled test for conservatory relief laid down in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR and Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR — namely whether a prima facie case with a likelihood of success has been demonstrated, where the balance of convenience lies, and what the public interest demands. To grant orders of the breadth sought, against ten Respondents and affecting a national claims-payment system, on unsworn assertion alone, would be to act without an evidential foundation.
7. I am alive to Article 159(2)(d) of the Constitution and to Rule 3(8) of the Mutunga Rules, which enjoin this Court to administer justice without undue regard to procedural technicality. But the difficulty here is evidential rather than technical. The Court is not being asked to overlook a defect in form; it is being asked to make findings of fact where no evidence has been tendered. Article 159(2)(d) is not a licence to dispense with proof.
8. In the premises, the Court is unable at this stage to exercise its jurisdiction on the Certificate of Urgency or to consider the prayers sought ex parte. The proper course, and the one most consistent with the overriding objective in Rule 4 of the Mutunga Rules, is to afford the Petitioners the opportunity to regularise the application rather than to dismiss it.
9. Accordingly, I make the following orders:
(a) No orders are made on the prayers sought ex parte in the Notice of Motion dated 30th July 2026 at this stage.
(b) The Petitioners shall, within seven (7) days of the date hereof, file and serve a supporting affidavit in compliance with Order 19 of the Civil Procedure Rules, 2010 and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, duly sworn and with all documents relied upon annexed and properly exhibited.
(c) The Petitioners shall forthwith serve the Petition, the Notice of Motion, the Certificate of Urgency and this Ruling upon all the Respondents and Interested Parties, and shall file an affidavit of service.
(d) The matter shall be mentioned on 18th August 2026 to confirm compliance and to take further directions on the hearing of the Notice of Motion and of the Petition.
(e) Costs shall be in the cause.
10. It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 14TH DAY OF AUGUST, 2026.
RULING
(On the Certificate of Urgency dated 30th July 2026)
1. There has been placed before me, ex parte and under a Certificate of Urgency dated 30th July 2026, a Petition together with a Notice of Motion of even date. The Petitioners impugn the levying of a “2% HIMS System Utilization Fee” against claims payable by the 1st Respondent to health care providers, and seek, in the main, conservatory orders suspending the deduction pending the hearing and determination of the Petition.
2. The Motion is expressed to be brought under Articles 20, 21, 22, 23(3), 48, 50(1), 159(2)(d), 165, 258 and 259(1) of the Constitution and Rules 3, 4, 8, 10, 11, 13, 15, 18 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
3. I have considered the Certificate of Urgency, the Petition and the Motion. Before the Court can turn its mind to the question of urgency and to the interim relief sought, a threshold difficulty arises on the face of the record.
4. The Notice of Motion is not accompanied by a supporting affidavit properly filed with, and forming part of, the application. The body of the
Motion itself recites that it is “grounded on the annexed affidavit of Dr.
Magare Gikenyi J. Benjamin,” yet no such affidavit, duly sworn and with the documents relied upon exhibited and marked in accordance with the Oaths and Statutory Declarations Act, has been placed before me as part of the application.
5. That omission is not merely formal. An application of this nature is one founded on contested questions of fact — when and by whom the impugned fee was introduced, the legal instrument (if any) under which it is levied, the role of the 2nd Respondent, the sums so far deducted, and the prejudice said to flow from the deduction. Facts of that character must be deposed to on oath. Order 51 Rule 1 as read with Order 19 of the Civil Procedure Rules, 2010, and Rule 11 of the Mutunga Rules, contemplate that an application seeking interlocutory relief will be supported by affidavit evidence. Averments in a certificate of urgency, or grounds recited on the face of a motion, are not evidence.
6. The consequence is that the Court has no sworn material upon which to apply the settled test for conservatory relief laid down in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR and Centre for Rights Education and Awareness (CREAW) & 7 Others v Attorney General [2011] eKLR — namely whether a prima facie case with a likelihood of success has been demonstrated, where the balance of convenience lies, and what the public interest demands. To grant orders of the breadth sought, against ten Respondents and affecting a national claims-payment system, on unsworn assertion alone, would be to act without an evidential foundation.
7. I am alive to Article 159(2)(d) of the Constitution and to Rule 3(8) of the Mutunga Rules, which enjoin this Court to administer justice without undue regard to procedural technicality. But the difficulty here is evidential rather than technical. The Court is not being asked to overlook a defect in form; it is being asked to make findings of fact where no evidence has been tendered. Article 159(2)(d) is not a licence to dispense with proof.
8. In the premises, the Court is unable at this stage to exercise its jurisdiction on the Certificate of Urgency or to consider the prayers sought ex parte. The proper course, and the one most consistent with the overriding objective in Rule 4 of the Mutunga Rules, is to afford the Petitioners the opportunity to regularise the application rather than to dismiss it.
9. Accordingly, I make the following orders:
(a) No orders are made on the prayers sought ex parte in the Notice of Motion dated 30th July 2026 at this stage.
(b) The Petitioners shall, within seven (7) days of the date hereof, file and serve a supporting affidavit in compliance with Order 19 of the Civil Procedure Rules, 2010 and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, duly sworn and with all documents relied upon annexed and properly exhibited.
(c) The Petitioners shall forthwith serve the Petition, the Notice of Motion, the Certificate of Urgency and this Ruling upon all the Respondents and Interested Parties, and shall file an affidavit of service.
(d) The matter shall be mentioned on 18th August 2026 to confirm compliance and to take further directions on the hearing of the Notice of Motion and of the Petition.
(e) Costs shall be in the cause.
10. It is so ordered.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 14TH DAY OF AUGUST, 2026.