JUDGMENT
1. This judgment addresses Consolidated Petition Nos. E004 of 2025, E017 of 2025, and 17 of 2025, with Petition No. E004 of 2025 as the lead file. All three petitions mainly challenge the creation and operation of the Kenya National Public Health Institute (KNPHI), the division of health functions under the Constitution, public participation, intergovernmental consultation, and public service staffing. KNPHI was established under the Kenya National Public Health Institute Order, Legal Notice No. 14 of 2022. (Kenya National Public Health Institute Order, n.d.)
The 1st and 2nd Petitioners' Case
2. Kisii Petition No. E004 of 2025 was filed by Dr Magare-Gikenyi B. and Eliud Karanja Matindi, who are the 1st and 2nd petitioners herein . They challenge the creation and operation of KNPHI through Legal Notice No. 14 of 2022.
3. The 1st and 2nd Petitioners argue that KNPHI was set up irregularly, illegally, and unconstitutionally because there was no public participation before the Legal Notice was issued. They say Article 10 of the Constitution requires public participation whenever State organs make or implement public policy decisions.
4. They also claim that KNPHI unlawfully takes over county health functions. They refer to Articles 6, 185, 186, and 187 of the Constitution and the Fourth Schedule, arguing that the national government should handle health policy, while counties are responsible for county health functions , such as primary health care, public health implementation, county facilities, and related services.
5. The Petitioners say that if any county health function was to be moved to the national government, Article 187 requires an agreement between both levels of government and the transfer of necessary resources. They state there is no evidence that counties have transferred their public health or primary health care functions to the national government.
6. They also object to the creation of a taskforce on 23rd October 2024 by the Head of Public Service to operationalise KNPHI. They claim the taskforce was not properly gazetted and that its mandate is based on an unconstitutional Legal Notice. They further argue that KNPHI's appointment structure allows non-competitive, non-merit-based appointments for the chairperson, board members, Director-General, secretary, and staff, which goes against grain of Articles 232 and 233 of the Constitution.
7. The petition is supported by the affidavit sworn by Dr Magare-Gikenyi J. Benjamin. He states that he is a Kenyan citizen, a medical doctor, a consultant trauma and general surgeon, a parent and a citizen interested in the rule of law and constitutionalism. He adopts the averments in the petition and application as part of his affidavit evidence.
8. Dr Magare-Gikenyi attached Legal Notice No. 14 of 2022, the Cabinet Memorandum on forming KNPHI, and the letter creating the taskforce for KNPHI's operationalisation. He says that unless the Court intervenes, the alleged illegalities will continue and undermine the Constitution and the rule of law.
9. The 1st and 2nd Petitioners ask for declarations that Legal Notice No. 14 of 2022 and the creation of KNPHI are unconstitutional, null, and void. They also seek orders to quash the Legal Notice and the taskforce or its recommendations, to prohibit the implementation of the KNPHI Order, and to compel the Respondents to start a new constitutional process with public participation and respect for devolution.
The 3rd Petitioner's Case
10. Constitutional Petition No. E017 of 2025 was initially filed by the Kenya National Union of Medical Laboratory Officers as Nairobi Employment and Labour Relations Petition No. E099 of 2025. It was filed against the Cabinet Secretary, Ministry of Health, KNPHI, the Public Service Commission and the Honourable Attorney General, with the Council of Governors, the Kenya Medical Laboratory Technicians and Technologists Board and the Intergovernmental Relations Technical Committee as interested parties.
11. The 3rd Petitioner challenges the establishment and operationalisation of KNPHI under Legal Notice No. 14 of 2022. It argues that KNPHI was created and launched without proper public participation, without consultation with county governments, and in a manner that unlawfully transfers staff, assets, and functions from the Ministry of Health, particularly the Division of National Laboratory Services/National Public Health Laboratories.
12. The 3rd Petitioner's main contention is that laboratory services, disease surveillance, public health functions and primary health care are substantially devolved functions. It argues that the national government could not transfer those functions to KNPHI without complying with Articles 186, 187 and 189 of the Constitution and without engaging county governments through lawful intergovernmental processes.
13. The petition also raises labour and public service issues. It states that the affected laboratory officers are Public Service Commission employees serving under the Ministry of Health and that KNPHI's Acting Director-General had no power to issue appointment, transition or deployment letters. The 3rd Petitioner states that such powers lie with the Public Service Commission and the authorised officer in the Ministry, namely the Principal Secretary.
14. The petition is supported by the affidavit sworn by Pius Nyakundi, the Secretary-General of the Union. He traces the background of KNPHI from the 2020 CDC/IANPHI stakeholder workshop, Legal Notice No. 14 of 2022, the 2023 CDC-Ministry engagement, the October/November 2024 taskforce, the February 2025 taskforce report, the March 2025 staff transition letters, the April 2025 Cabinet Secretary directive and the May 2025 launch of KNPHI.
15. The affidavit emphasises the role of national reference laboratories, including HIV, TB, malaria, microbiology, food safety, virology/influenza and oncology/biochemistry laboratories. It states that these laboratories provide diagnostic, referral, policy, and surveillance support to counties and health facilities, and that transferring them to KNPHI would risk weakening established health systems.
16. The 3rd Petitioner further alleges that KNPHI is not operationally ready because it lacks approved organisational structures, staff establishment plans and human resource policies. It also objects to the creation of a Biomedical Testing and Analytical Services directorate and alleges that a person not licensed under the Medical Laboratory Technicians and Technologists Act was appointed as Laboratory Manager.
17. The annexures include the US Embassy article on the NPHI workshop, Ministry of Health material on public health laboratories, Legal Notice No. 14 of 2022, the taskforce report, transition and appointment letters, PSC-related correspondence, the KNPHI organogram, protest letters by the Union, launch material and a media report on the KNPHI launch. The taskforce report identifies 456 staff for transition to KNPHI, including 85 from National Public Health Laboratories, and recommends vesting staff and assets, separating payroll, approving human resource instruments, and establishing budgetary and pension arrangements.
18. The 3rd Petitioner seeks declarations that only the Public Service Commission can appoint, deploy or confirm persons in the public service; that KNPHI appointment and deployment letters are unconstitutional and void; that its members' labour rights under Article 41 were violated; that the right to health under Article 43 was threatened by disruption of reference laboratory services; that Legal Notice No. 14 of 2022 is invalid for lack of public participation; and that the establishment and operationalisation of KNPHI violates Articles 186 and 189 by interfering with devolved health functions.
19. The 3rd Petitioner also seeks declarations that the taskforce was unlawful because it was not properly legally established and that the Health Act, rather than the State Corporations Act, was the proper statutory basis for such a health institution. It further seeks certiorari to quash the appointment and deployment letters, all appointments made by KNPHI, Legal Notice No. 14 of 2022 and the February 2025 taskforce report, together with costs.
The 4th Petitioner's Case
20. Petition No. 17 of 2025 was originally filed in the High Court of Kenya at Milimani as Constitutional and Human Rights Petition No. E147 of 2022 by the Association of Public Health Officers of Kenya against the Cabinet Secretary for Health, KNPHI and the Honourable Attorney General. It challenges the establishment of KNPHI through Legal Notice No. 14 of 2022, titled the Kenya National Public Health Institute Order.
21. The 4th Petitioner argues that Legal Notice No. 14 of 2022 is unconstitutional and unlawful because it allegedly takes over county health functions contrary to Articles 6, 185, 186, 187 and the Fourth Schedule of the Constitution; was made without public participation contrary to Articles 10 and 118; interferes with the right to the highest attainable standard of health under Article 43; creates administrative action that is unlawful, unreasonable or procedurally unfair under Article 47; purports, through subsidiary legislation, to amend or override the Public Health Act, Cap. 242 and the Health Act, 2017; and duplicates or overlaps existing statutory health functions, thereby creating institutional conflict.
22. The petition is supported by the affidavit sworn by Mohamed Bagajo Duba, the General Secretary of the Association of Public Health Officers of Kenya. He states that KNPHI was established on or about 21st January 2022 through Legal Notice No. 14 of 2022. He states that its functions include outbreak detection, emergency response, surveillance, emergency operation centres and management of public health functions.
23. Mr Duba contends that those functions fall within county health services, especially preventive, promotive and surveillance-related public health functions. He relies on a task force report that is said to have identified weaknesses in the creation of KNPHI, including devolution concerns, overlapping statutory functions, and a lack of public consultation. He also alleges imminent transition of staff and assets to KNPHI through a letter dated 25th February 2025.
24. The 4th Petitioner seeks declarations that KNPHI, as created by Legal Notice No. 14 of 2022, violates devolution and is unconstitutional, null and void; that KNPHI was created without public participation; and that the Legal Notice is inconsistent with the Health Act, 2017 and the Public Health Act, Cap. 242. It also seeks an order of certiorari quashing Legal Notice No. 14 of 2022 and related recommendations, costs and any other appropriate relief.
Responses and Positions of the Parties
25. The Honourable Attorney General appeared for the 1st, 2nd, 3rd, 4th, 5th, 7th and 8th Respondents. .
26. The 1st, 2nd, 3rd, 4th, 5th and 8th Respondents oppose the petitions. Their case is that KNPHI is a lawful State corporation created under section 3(1) of the State Corporations Act, with a national-level mandate of coordination, technical support, surveillance, preparedness and response to public health threats.
27. They submit that health policy is a national government function under Part 1 of the Fourth Schedule to the Constitution; that public health emergencies, cross-border disease surveillance, national reference laboratory coordination and epidemic preparedness cannot effectively be handled by isolated county systems; and that KNPHI complements, rather than supplants, county health services.
28. The Public Service Commission, sued as the 7th Respondent, takes the position that KNPHI is a public body within the Commission's mandate. It states that the Institute became known to the Commission through a request for review and approval of human resource instruments, including an interim organisational structure, staff establishment, grading structure, qualification matrix, career guidelines and human resource policies.
29. The Commission further states that any staff transition into KNPHI must comply with Article 234 of the Constitution, the Public Service Commission Act and the Public Service Commission Regulations, 2020.
30. The 2nd Interested Party, the Intergovernmental Relations Technical Committee, raises a jurisdictional objection. It argues that the dispute touches on the allocation of functions between the national and county governments and that the Petitioners ought to have invoked the mechanisms under Article 189 of the Constitution and section 31 of the Intergovernmental Relations Act before approaching this Court. It further contends that no specific constitutional violation has been pleaded against it.
31. The 6th Respondent and the 1st Interested Party did not participate in these proceedings.
32. I have considered the consolidated petitions, affidavits, grounds of opposition, written submissions, bundles of authorities and the applicable constitutional and statutory framework.
Issues for Determination
33. The issues that arise for determination are:
(a) whether this Court has jurisdiction in view of the doctrine of exhaustion under Article 189 of the Constitution and section 31 of the Intergovernmental Relations Act;
(b) whether this Court has jurisdiction to determine the employment and labour relations issues raised in the consolidated petitions;
(c) whether the establishment and operationalisation of KNPHI through Legal Notice No. 14 of 2022 violates the constitutional allocation of health functions between the national and county governments under Articles 6, 185, 186 and 187 and the Fourth Schedule;
(d) whether the impugned Legal Notice and the process leading to it met the constitutional threshold of public participation and stakeholder engagement under Article 10 and the broader principles of openness and accountability;
(e) whether the petitions meet the threshold for constitutional petitions in Kenya; and
(f) whether the Petitioners are entitled to the reliefs sought and, if so, what orders should issue.
Jurisdiction and Exhaustion
34. Jurisdiction is the foundation of any judicial proceedings. I will deal with the first two issues under this head. In Owners of the Motor Vessel Lillian S v Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi JA held that jurisdiction is everything and that a court without jurisdiction must down its tools.
35. Similarly, the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR held that a court's jurisdiction flows from the Constitution or statute.
36. The 2nd Interested Party relies on Article 189(3) and (4) of the Constitution and section 31 of the Intergovernmental Relations Act. Those provisions require the national and county governments, in a dispute between them, to make every reasonable effort to settle the dispute through the procedures provided under national legislation, including negotiation, mediation and arbitration.
37. The doctrine of exhaustion is an important principle. In Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR, the Court of Appeal stated that where a dispute resolution mechanism exists outside the courts, it should be exhausted before invoking the courts' jurisdiction.
38. The Supreme Court in Council of Governors v Attorney General & Others, Reference No. 2 of 2017, similarly affirmed the place of the intergovernmental dispute resolution framework in disputes between the two levels of government.
39. However, the dispute before this Court is not, in its strict legal character, an intergovernmental dispute between the national government and a county government. The Petitioners are citizens of Kenya, a union and a professional association. They invoke Articles 22 and 258 of the Constitution and allege violations of the Constitution, national values, the Bill of Rights, the devolution architecture and public service principles.
40. Although the Council of Governors is a party, it is not the petitioner invoking Article 189 against the national government. The pleadings seek constitutional review of an executive legal instrument. Such a dispute falls within Article 165(3)(d) of the Constitution.
41. Section 31 of the Intergovernmental Relations Act cannot be used to bar citizens or public interest litigants from approaching the High Court where the complaint is that a public instrument is unconstitutional. To hold otherwise would unduly narrow Articles 22, 23, 165 and 258 of the Constitution and shield executive action from constitutional scrutiny merely because the subject matter touches on functional relations between the two levels of government.
42. I therefore find that this Court has jurisdiction to determine the constitutional questions raised in the petitions. The objection based on exhaustion fails.
Employment Matters
43. Petitions E017 of 2025 and 17 of 2025 also raise issues on whether the recruitment, appointment, deployment or absorption of staff into KNPHI complies with Articles 73, 232 and 234 of the Constitution, the Public Service Commission Act and the Public Service Commission Regulations, 2020.
44. Those issues are, in substance, employment and labour relations matters. Article 165(5)(b) of the Constitution bars the High Court from exercising jurisdiction in matters reserved for courts of equal status established under Article 162(2) of the Constitution.
45. Accordingly, this Court lacks jurisdiction to determine the employment and labour relations aspects of the petitions. Those issues properly fall within the jurisdiction of the Employment and Labour Relations Court. That finding does not dispose of the petitions, since the predominant questions concern public participation, the alleged usurpation of county functions and the constitutional allocation of health functions. Since the Public Service Commission is the employer of all civil servants and the petition touches on alleged violations by it, this court will apply the doctrine of avoidance and not determine the issues touching on it.
Constitutional Allocation of Health Functions
46. On the issue of health function, the starting point is the Fourth Schedule to the Constitution. Part 1 assigns health policy to the national government. Part 2 assigns county health services to county governments, including county health facilities and pharmacies, ambulance services, the promotion of primary health care, the licensing and control of undertakings that sell food to the public, cemeteries, funeral parlours and crematoria, refuse removal, refuse dumps and solid waste disposal.(See
47. Article 6(2) provides that the governments at the national and county levels are interdependent and shall conduct their mutual relations on the basis of consultation and cooperation.
48. Article 186 provides for functions of the levels of government. Article 187 provides a mechanism for the transfer of functions between the two levels by agreement, subject to resource arrangements. Article 189 imposes upon each level of government the obligation to respect the functional and institutional integrity of the other and to liaise for the purposes of exchanging information, coordinating policies and administration, and enhancing capacity.
49. It is therefore not correct to say that all matters touching on health are county functions. Equally, it is not right to hold the view that, because health policy is a national function, the national government may, through subsidiary legislation, assume operational control over county health functions.
50. The Constitution deliberately separates, but also interlinks, the two levels of government. The national government formulates policy, sets norms and standards, coordinates national and cross-border public health responses, and ensures progressive realisation of the right to health under Article 43. County governments deliver county health services and promote primary health care at the local level.
51. The Health Act gives statutory expression to that constitutional arrangement. Section 15 assigns to the national government, through the Ministry responsible for health, the duty to develop health policies, laws, administrative procedures and programmes in consultation with county governments, health sector stakeholders and the public.
52. The same provision mandates the national government to offer technical support, put in place policy interventions to reduce the burden of communicable, non-communicable, emerging and re-emerging diseases, and coordinate, through established intergovernmental mechanisms, health aspects of disasters and emergencies.
53. Section 17 of the Health Act recognises the role of the Director-General in guarding against the introduction of infectious diseases, advising the two levels of government on national security matters relating to public health, and publishing information on infectious diseases and other health matters.
54. That statutory framework supports a national coordinating public health function. It does not, however, authorise disregard of devolution, public participation, the mandate of the Public Service Commission or intergovernmental consultation.
55. The question is therefore not whether a national public health institute is desirable. The question is whether the impugned Legal Notice created and operationalised the Institute in a constitutionally compliant manner.
56. The Respondents submit that KNPHI is complementary, facilitative and technically supportive. That may be so in conception. Disease outbreaks, antimicrobial resistance, biosecurity threats and cross-border health emergencies cannot be effectively managed by each county acting in isolation.
57. A national focal institution for disease surveillance, epidemic preparedness, reference laboratory coordination and emergency response is therefore constitutionally permissible.
58. The issue is whether the impugned process and instrument sufficiently demonstrate that the constitutional boundaries were respected. The Petitioners point to functions that, in their view, trespass into the field of promoting primary health care and implementing public health services. They also point to section 25 of the Order, which identifies divisions and functions to be transferred from the Ministry of Health to the Institute.
59. The Respondents insist that the functions are coordinative, technical and national in character. However, where a national body is given functions that affect county health services, the Constitution demands clear, demonstrable and structured consultation with county governments and affected stakeholders before the instrument is made and operationalised.
60. In Council of County Governors v Kenya Tissue and Transplant Authority & 2 Others; Senate (Interested Party) [2023] KEHC 21046 (KLR), the Court held that health policy is a national function, but that implementation of health policies which implicate county functions must be approached through consultation and cooperation.
61. The Court further emphasised that the Fourth Schedule is not to be read mechanically and that where emerging health areas cut across both levels of government, consultation and coordination are constitutionally indispensable.
62. I therefore find that the Constitution permits the national government to create a national coordinating mechanism for public health security, disease surveillance, outbreak preparedness and response.
63. However, where the mechanism created by KNPHI assumes, or appears to assume, operational functions assigned to counties, or transfers functions and assets without a demonstrable intergovernmental framework, the action offends Articles 6, 186, 187 and 189 of the Constitution.
64. Based on the evidence adduced herein, the establishment and operationalisation of KNPHI through Legal Notice No. 14 of 2022 did not sufficiently demonstrate a constitutionally compliant intergovernmental framework. To that extent, the Petitioners' complaint regarding the devolution of health functions is merited.
Public Participation and Stakeholder Engagement
65. Public participation is a binding national value under Article 10 of the Constitution. It applies whenever a State organ, State officer, public officer or any person applies or interprets the Constitution, enacts, applies or interprets any law, or makes or implements public policy decisions.
66. The establishment of KNPHI through a legal notice and its operationalisation by a taskforce were public acts with major implications for health governance, devolved functions and public finance. They triggered the duty to facilitate meaningful public participation and to engage targeted stakeholders.
67. In British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 5 Others [2019] eKLR, the Supreme Court held that public participation must be real and not illusory; it must be purposive and must afford the public a reasonable opportunity to know about the issue and to have an adequate say.
68. In Doctors for Life International v Speaker of the National Assembly & Others [2006] ZACC 11, the Constitutional Court of South Africa held that reasonable measures must be taken to ensure that the public has an opportunity to participate in the law-making process.
69. In Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR, the Court held that public participation must be qualitative and not merely quantitative.
70. The Respondents rely on the history of KNPHI as a unit, department and later directorate within the Ministry of Health, the COVID-19 experience, international best practice, the establishment of a multi-agency taskforce on 23rd October 2024, the taskforce report of 20th February 2025, and a high-level stakeholder engagement meeting held in March 2025 with County Executive Committee Members for Health and County Directors of Health.
71. Those matters may demonstrate administrative engagement in the operationalisation phase. They do not answer the core question: whether, before Legal Notice No. 14 of 2022 was issued, the public, county governments, affected professional bodies and health sector stakeholders were given adequate notice, information and opportunity to make representations on the creation, mandate, governance structure, intergovernmental linkages and impact of KNPHI.
72. A taskforce created in October 2024 and meetings held in March 2025 cannot retrospectively cure a constitutional defect in a Legal Notice made in January 2022.
73. The burden of proving that constitutionally sufficient public participation was undertaken lies, in the circumstances of this case, on the public authorities who made the impugned instrument and who are in possession of the relevant notices, minutes, attendance lists, memoranda, reports, stakeholder comments and decision records.
74. The material placed before the Court does not demonstrate a structured pre-gazettement public participation process specifically directed at the establishment of KNPHI through Legal Notice No. 14 of 2022.
75. Public participation is context-sensitive. It does not require that every citizen be heard. It also does not mean that the views received are binding on the decision maker. However, it requires evidence that reasonable notice was given, relevant information was made available, affected stakeholders and the public were afforded a meaningful opportunity to comment, and their views received due consideration before the decision was made.
76. I therefore find that the establishment of KNPHI through Legal Notice No. 14 of 2022 did not meet the constitutional threshold of public participation and targeted stakeholder engagement required by Article 10.
Constitutional Threshold
77. On whether the petitions meet the threshold set in Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the Petitioners pleaded violations of Articles 1, 2, 3(1), 6, 10, 19, 20, 21, 22, 23, 24, 27, 28, 41, 43, 47, 73, 75, 129, 130, 131, 132, 162, 165, 186, 187, 189, 190, 232, 236, 258, 259 and 260 of the Constitution.
78. They linked those provisions to the challenged Legal Notice, the alleged lack of public participation, the alleged encroachment on devolved health functions, public service values and the right to health. I am satisfied that the petitions meet the threshold for constitutional petitions in Kenya.
Appropriate Relief
79. Article 23 of the Constitution empowers this Court to grant appropriate relief, including declarations, conservatory orders, judicial review orders and any other relief necessary to enforce the Constitution.
80. Appropriate relief must be effective, proportionate and responsive to the violation established. It must also take into account the public interest and the need to avoid disruption to essential public services.
81. This Court has found that the objective of strengthening national public health coordination is legitimate and constitutionally permissible. It has also found that the impugned Legal Notice was made and is being operationalised without sufficient evidence of pre-gazettement public participation, targeted stakeholder engagement and a clear intergovernmental framework respecting county health functions.
82. An order quashing the Legal Notice with immediate effect may create uncertainty in disease surveillance, laboratory coordination, emergency preparedness and public health response, especially during the current regional outbreak of Ebola in East and Central Africa. Conversely, allowing the instrument to stand without conditions
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1. This judgment addresses Consolidated Petition Nos. E004 of 2025, E017 of 2025, and 17 of 2025, with Petition No. E004 of 2025 as the lead file. All three petitions mainly challenge the creation and operation of the Kenya National Public Health Institute (KNPHI), the division of health functions under the Constitution, public participation, intergovernmental consultation, and public service staffing. KNPHI was established under the Kenya National Public Health Institute Order, Legal Notice No. 14 of 2022. (Kenya National Public Health Institute Order, n.d.)
The 1st and 2nd Petitioners' Case
2. Kisii Petition No. E004 of 2025 was filed by Dr Magare-Gikenyi B. and Eliud Karanja Matindi, who are the 1st and 2nd petitioners herein . They challenge the creation and operation of KNPHI through Legal Notice No. 14 of 2022.
3. The 1st and 2nd Petitioners argue that KNPHI was set up irregularly, illegally, and unconstitutionally because there was no public participation before the Legal Notice was issued. They say Article 10 of the Constitution requires public participation whenever State organs make or implement public policy decisions.
4. They also claim that KNPHI unlawfully takes over county health functions. They refer to Articles 6, 185, 186, and 187 of the Constitution and the Fourth Schedule, arguing that the national government should handle health policy, while counties are responsible for county health functions , such as primary health care, public health implementation, county facilities, and related services.
5. The Petitioners say that if any county health function was to be moved to the national government, Article 187 requires an agreement between both levels of government and the transfer of necessary resources. They state there is no evidence that counties have transferred their public health or primary health care functions to the national government.
6. They also object to the creation of a taskforce on 23rd October 2024 by the Head of Public Service to operationalise KNPHI. They claim the taskforce was not properly gazetted and that its mandate is based on an unconstitutional Legal Notice. They further argue that KNPHI's appointment structure allows non-competitive, non-merit-based appointments for the chairperson, board members, Director-General, secretary, and staff, which goes against grain of Articles 232 and 233 of the Constitution.
7. The petition is supported by the affidavit sworn by Dr Magare-Gikenyi J. Benjamin. He states that he is a Kenyan citizen, a medical doctor, a consultant trauma and general surgeon, a parent and a citizen interested in the rule of law and constitutionalism. He adopts the averments in the petition and application as part of his affidavit evidence.
8. Dr Magare-Gikenyi attached Legal Notice No. 14 of 2022, the Cabinet Memorandum on forming KNPHI, and the letter creating the taskforce for KNPHI's operationalisation. He says that unless the Court intervenes, the alleged illegalities will continue and undermine the Constitution and the rule of law.
9. The 1st and 2nd Petitioners ask for declarations that Legal Notice No. 14 of 2022 and the creation of KNPHI are unconstitutional, null, and void. They also seek orders to quash the Legal Notice and the taskforce or its recommendations, to prohibit the implementation of the KNPHI Order, and to compel the Respondents to start a new constitutional process with public participation and respect for devolution.
The 3rd Petitioner's Case
10. Constitutional Petition No. E017 of 2025 was initially filed by the Kenya National Union of Medical Laboratory Officers as Nairobi Employment and Labour Relations Petition No. E099 of 2025. It was filed against the Cabinet Secretary, Ministry of Health, KNPHI, the Public Service Commission and the Honourable Attorney General, with the Council of Governors, the Kenya Medical Laboratory Technicians and Technologists Board and the Intergovernmental Relations Technical Committee as interested parties.
11. The 3rd Petitioner challenges the establishment and operationalisation of KNPHI under Legal Notice No. 14 of 2022. It argues that KNPHI was created and launched without proper public participation, without consultation with county governments, and in a manner that unlawfully transfers staff, assets, and functions from the Ministry of Health, particularly the Division of National Laboratory Services/National Public Health Laboratories.
12. The 3rd Petitioner's main contention is that laboratory services, disease surveillance, public health functions and primary health care are substantially devolved functions. It argues that the national government could not transfer those functions to KNPHI without complying with Articles 186, 187 and 189 of the Constitution and without engaging county governments through lawful intergovernmental processes.
13. The petition also raises labour and public service issues. It states that the affected laboratory officers are Public Service Commission employees serving under the Ministry of Health and that KNPHI's Acting Director-General had no power to issue appointment, transition or deployment letters. The 3rd Petitioner states that such powers lie with the Public Service Commission and the authorised officer in the Ministry, namely the Principal Secretary.
14. The petition is supported by the affidavit sworn by Pius Nyakundi, the Secretary-General of the Union. He traces the background of KNPHI from the 2020 CDC/IANPHI stakeholder workshop, Legal Notice No. 14 of 2022, the 2023 CDC-Ministry engagement, the October/November 2024 taskforce, the February 2025 taskforce report, the March 2025 staff transition letters, the April 2025 Cabinet Secretary directive and the May 2025 launch of KNPHI.
15. The affidavit emphasises the role of national reference laboratories, including HIV, TB, malaria, microbiology, food safety, virology/influenza and oncology/biochemistry laboratories. It states that these laboratories provide diagnostic, referral, policy, and surveillance support to counties and health facilities, and that transferring them to KNPHI would risk weakening established health systems.
16. The 3rd Petitioner further alleges that KNPHI is not operationally ready because it lacks approved organisational structures, staff establishment plans and human resource policies. It also objects to the creation of a Biomedical Testing and Analytical Services directorate and alleges that a person not licensed under the Medical Laboratory Technicians and Technologists Act was appointed as Laboratory Manager.
17. The annexures include the US Embassy article on the NPHI workshop, Ministry of Health material on public health laboratories, Legal Notice No. 14 of 2022, the taskforce report, transition and appointment letters, PSC-related correspondence, the KNPHI organogram, protest letters by the Union, launch material and a media report on the KNPHI launch. The taskforce report identifies 456 staff for transition to KNPHI, including 85 from National Public Health Laboratories, and recommends vesting staff and assets, separating payroll, approving human resource instruments, and establishing budgetary and pension arrangements.
18. The 3rd Petitioner seeks declarations that only the Public Service Commission can appoint, deploy or confirm persons in the public service; that KNPHI appointment and deployment letters are unconstitutional and void; that its members' labour rights under Article 41 were violated; that the right to health under Article 43 was threatened by disruption of reference laboratory services; that Legal Notice No. 14 of 2022 is invalid for lack of public participation; and that the establishment and operationalisation of KNPHI violates Articles 186 and 189 by interfering with devolved health functions.
19. The 3rd Petitioner also seeks declarations that the taskforce was unlawful because it was not properly legally established and that the Health Act, rather than the State Corporations Act, was the proper statutory basis for such a health institution. It further seeks certiorari to quash the appointment and deployment letters, all appointments made by KNPHI, Legal Notice No. 14 of 2022 and the February 2025 taskforce report, together with costs.
The 4th Petitioner's Case
20. Petition No. 17 of 2025 was originally filed in the High Court of Kenya at Milimani as Constitutional and Human Rights Petition No. E147 of 2022 by the Association of Public Health Officers of Kenya against the Cabinet Secretary for Health, KNPHI and the Honourable Attorney General. It challenges the establishment of KNPHI through Legal Notice No. 14 of 2022, titled the Kenya National Public Health Institute Order.
21. The 4th Petitioner argues that Legal Notice No. 14 of 2022 is unconstitutional and unlawful because it allegedly takes over county health functions contrary to Articles 6, 185, 186, 187 and the Fourth Schedule of the Constitution; was made without public participation contrary to Articles 10 and 118; interferes with the right to the highest attainable standard of health under Article 43; creates administrative action that is unlawful, unreasonable or procedurally unfair under Article 47; purports, through subsidiary legislation, to amend or override the Public Health Act, Cap. 242 and the Health Act, 2017; and duplicates or overlaps existing statutory health functions, thereby creating institutional conflict.
22. The petition is supported by the affidavit sworn by Mohamed Bagajo Duba, the General Secretary of the Association of Public Health Officers of Kenya. He states that KNPHI was established on or about 21st January 2022 through Legal Notice No. 14 of 2022. He states that its functions include outbreak detection, emergency response, surveillance, emergency operation centres and management of public health functions.
23. Mr Duba contends that those functions fall within county health services, especially preventive, promotive and surveillance-related public health functions. He relies on a task force report that is said to have identified weaknesses in the creation of KNPHI, including devolution concerns, overlapping statutory functions, and a lack of public consultation. He also alleges imminent transition of staff and assets to KNPHI through a letter dated 25th February 2025.
24. The 4th Petitioner seeks declarations that KNPHI, as created by Legal Notice No. 14 of 2022, violates devolution and is unconstitutional, null and void; that KNPHI was created without public participation; and that the Legal Notice is inconsistent with the Health Act, 2017 and the Public Health Act, Cap. 242. It also seeks an order of certiorari quashing Legal Notice No. 14 of 2022 and related recommendations, costs and any other appropriate relief.
Responses and Positions of the Parties
25. The Honourable Attorney General appeared for the 1st, 2nd, 3rd, 4th, 5th, 7th and 8th Respondents. .
26. The 1st, 2nd, 3rd, 4th, 5th and 8th Respondents oppose the petitions. Their case is that KNPHI is a lawful State corporation created under section 3(1) of the State Corporations Act, with a national-level mandate of coordination, technical support, surveillance, preparedness and response to public health threats.
27. They submit that health policy is a national government function under Part 1 of the Fourth Schedule to the Constitution; that public health emergencies, cross-border disease surveillance, national reference laboratory coordination and epidemic preparedness cannot effectively be handled by isolated county systems; and that KNPHI complements, rather than supplants, county health services.
28. The Public Service Commission, sued as the 7th Respondent, takes the position that KNPHI is a public body within the Commission's mandate. It states that the Institute became known to the Commission through a request for review and approval of human resource instruments, including an interim organisational structure, staff establishment, grading structure, qualification matrix, career guidelines and human resource policies.
29. The Commission further states that any staff transition into KNPHI must comply with Article 234 of the Constitution, the Public Service Commission Act and the Public Service Commission Regulations, 2020.
30. The 2nd Interested Party, the Intergovernmental Relations Technical Committee, raises a jurisdictional objection. It argues that the dispute touches on the allocation of functions between the national and county governments and that the Petitioners ought to have invoked the mechanisms under Article 189 of the Constitution and section 31 of the Intergovernmental Relations Act before approaching this Court. It further contends that no specific constitutional violation has been pleaded against it.
31. The 6th Respondent and the 1st Interested Party did not participate in these proceedings.
32. I have considered the consolidated petitions, affidavits, grounds of opposition, written submissions, bundles of authorities and the applicable constitutional and statutory framework.
Issues for Determination
33. The issues that arise for determination are:
(a) whether this Court has jurisdiction in view of the doctrine of exhaustion under Article 189 of the Constitution and section 31 of the Intergovernmental Relations Act;
(b) whether this Court has jurisdiction to determine the employment and labour relations issues raised in the consolidated petitions;
(c) whether the establishment and operationalisation of KNPHI through Legal Notice No. 14 of 2022 violates the constitutional allocation of health functions between the national and county governments under Articles 6, 185, 186 and 187 and the Fourth Schedule;
(d) whether the impugned Legal Notice and the process leading to it met the constitutional threshold of public participation and stakeholder engagement under Article 10 and the broader principles of openness and accountability;
(e) whether the petitions meet the threshold for constitutional petitions in Kenya; and
(f) whether the Petitioners are entitled to the reliefs sought and, if so, what orders should issue.
Jurisdiction and Exhaustion
34. Jurisdiction is the foundation of any judicial proceedings. I will deal with the first two issues under this head. In Owners of the Motor Vessel Lillian S v Caltex Oil (Kenya) Ltd [1989] KLR 1, Nyarangi JA held that jurisdiction is everything and that a court without jurisdiction must down its tools.
35. Similarly, the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR held that a court's jurisdiction flows from the Constitution or statute.
36. The 2nd Interested Party relies on Article 189(3) and (4) of the Constitution and section 31 of the Intergovernmental Relations Act. Those provisions require the national and county governments, in a dispute between them, to make every reasonable effort to settle the dispute through the procedures provided under national legislation, including negotiation, mediation and arbitration.
37. The doctrine of exhaustion is an important principle. In Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR, the Court of Appeal stated that where a dispute resolution mechanism exists outside the courts, it should be exhausted before invoking the courts' jurisdiction.
38. The Supreme Court in Council of Governors v Attorney General & Others, Reference No. 2 of 2017, similarly affirmed the place of the intergovernmental dispute resolution framework in disputes between the two levels of government.
39. However, the dispute before this Court is not, in its strict legal character, an intergovernmental dispute between the national government and a county government. The Petitioners are citizens of Kenya, a union and a professional association. They invoke Articles 22 and 258 of the Constitution and allege violations of the Constitution, national values, the Bill of Rights, the devolution architecture and public service principles.
40. Although the Council of Governors is a party, it is not the petitioner invoking Article 189 against the national government. The pleadings seek constitutional review of an executive legal instrument. Such a dispute falls within Article 165(3)(d) of the Constitution.
41. Section 31 of the Intergovernmental Relations Act cannot be used to bar citizens or public interest litigants from approaching the High Court where the complaint is that a public instrument is unconstitutional. To hold otherwise would unduly narrow Articles 22, 23, 165 and 258 of the Constitution and shield executive action from constitutional scrutiny merely because the subject matter touches on functional relations between the two levels of government.
42. I therefore find that this Court has jurisdiction to determine the constitutional questions raised in the petitions. The objection based on exhaustion fails.
Employment Matters
43. Petitions E017 of 2025 and 17 of 2025 also raise issues on whether the recruitment, appointment, deployment or absorption of staff into KNPHI complies with Articles 73, 232 and 234 of the Constitution, the Public Service Commission Act and the Public Service Commission Regulations, 2020.
44. Those issues are, in substance, employment and labour relations matters. Article 165(5)(b) of the Constitution bars the High Court from exercising jurisdiction in matters reserved for courts of equal status established under Article 162(2) of the Constitution.
45. Accordingly, this Court lacks jurisdiction to determine the employment and labour relations aspects of the petitions. Those issues properly fall within the jurisdiction of the Employment and Labour Relations Court. That finding does not dispose of the petitions, since the predominant questions concern public participation, the alleged usurpation of county functions and the constitutional allocation of health functions. Since the Public Service Commission is the employer of all civil servants and the petition touches on alleged violations by it, this court will apply the doctrine of avoidance and not determine the issues touching on it.
Constitutional Allocation of Health Functions
46. On the issue of health function, the starting point is the Fourth Schedule to the Constitution. Part 1 assigns health policy to the national government. Part 2 assigns county health services to county governments, including county health facilities and pharmacies, ambulance services, the promotion of primary health care, the licensing and control of undertakings that sell food to the public, cemeteries, funeral parlours and crematoria, refuse removal, refuse dumps and solid waste disposal.(See
47. Article 6(2) provides that the governments at the national and county levels are interdependent and shall conduct their mutual relations on the basis of consultation and cooperation.
48. Article 186 provides for functions of the levels of government. Article 187 provides a mechanism for the transfer of functions between the two levels by agreement, subject to resource arrangements. Article 189 imposes upon each level of government the obligation to respect the functional and institutional integrity of the other and to liaise for the purposes of exchanging information, coordinating policies and administration, and enhancing capacity.
49. It is therefore not correct to say that all matters touching on health are county functions. Equally, it is not right to hold the view that, because health policy is a national function, the national government may, through subsidiary legislation, assume operational control over county health functions.
50. The Constitution deliberately separates, but also interlinks, the two levels of government. The national government formulates policy, sets norms and standards, coordinates national and cross-border public health responses, and ensures progressive realisation of the right to health under Article 43. County governments deliver county health services and promote primary health care at the local level.
51. The Health Act gives statutory expression to that constitutional arrangement. Section 15 assigns to the national government, through the Ministry responsible for health, the duty to develop health policies, laws, administrative procedures and programmes in consultation with county governments, health sector stakeholders and the public.
52. The same provision mandates the national government to offer technical support, put in place policy interventions to reduce the burden of communicable, non-communicable, emerging and re-emerging diseases, and coordinate, through established intergovernmental mechanisms, health aspects of disasters and emergencies.
53. Section 17 of the Health Act recognises the role of the Director-General in guarding against the introduction of infectious diseases, advising the two levels of government on national security matters relating to public health, and publishing information on infectious diseases and other health matters.
54. That statutory framework supports a national coordinating public health function. It does not, however, authorise disregard of devolution, public participation, the mandate of the Public Service Commission or intergovernmental consultation.
55. The question is therefore not whether a national public health institute is desirable. The question is whether the impugned Legal Notice created and operationalised the Institute in a constitutionally compliant manner.
56. The Respondents submit that KNPHI is complementary, facilitative and technically supportive. That may be so in conception. Disease outbreaks, antimicrobial resistance, biosecurity threats and cross-border health emergencies cannot be effectively managed by each county acting in isolation.
57. A national focal institution for disease surveillance, epidemic preparedness, reference laboratory coordination and emergency response is therefore constitutionally permissible.
58. The issue is whether the impugned process and instrument sufficiently demonstrate that the constitutional boundaries were respected. The Petitioners point to functions that, in their view, trespass into the field of promoting primary health care and implementing public health services. They also point to section 25 of the Order, which identifies divisions and functions to be transferred from the Ministry of Health to the Institute.
59. The Respondents insist that the functions are coordinative, technical and national in character. However, where a national body is given functions that affect county health services, the Constitution demands clear, demonstrable and structured consultation with county governments and affected stakeholders before the instrument is made and operationalised.
60. In Council of County Governors v Kenya Tissue and Transplant Authority & 2 Others; Senate (Interested Party) [2023] KEHC 21046 (KLR), the Court held that health policy is a national function, but that implementation of health policies which implicate county functions must be approached through consultation and cooperation.
61. The Court further emphasised that the Fourth Schedule is not to be read mechanically and that where emerging health areas cut across both levels of government, consultation and coordination are constitutionally indispensable.
62. I therefore find that the Constitution permits the national government to create a national coordinating mechanism for public health security, disease surveillance, outbreak preparedness and response.
63. However, where the mechanism created by KNPHI assumes, or appears to assume, operational functions assigned to counties, or transfers functions and assets without a demonstrable intergovernmental framework, the action offends Articles 6, 186, 187 and 189 of the Constitution.
64. Based on the evidence adduced herein, the establishment and operationalisation of KNPHI through Legal Notice No. 14 of 2022 did not sufficiently demonstrate a constitutionally compliant intergovernmental framework. To that extent, the Petitioners' complaint regarding the devolution of health functions is merited.
Public Participation and Stakeholder Engagement
65. Public participation is a binding national value under Article 10 of the Constitution. It applies whenever a State organ, State officer, public officer or any person applies or interprets the Constitution, enacts, applies or interprets any law, or makes or implements public policy decisions.
66. The establishment of KNPHI through a legal notice and its operationalisation by a taskforce were public acts with major implications for health governance, devolved functions and public finance. They triggered the duty to facilitate meaningful public participation and to engage targeted stakeholders.
67. In British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 5 Others [2019] eKLR, the Supreme Court held that public participation must be real and not illusory; it must be purposive and must afford the public a reasonable opportunity to know about the issue and to have an adequate say.
68. In Doctors for Life International v Speaker of the National Assembly & Others [2006] ZACC 11, the Constitutional Court of South Africa held that reasonable measures must be taken to ensure that the public has an opportunity to participate in the law-making process.
69. In Robert N. Gakuru & Others v Governor Kiambu County & 3 Others [2014] eKLR, the Court held that public participation must be qualitative and not merely quantitative.
70. The Respondents rely on the history of KNPHI as a unit, department and later directorate within the Ministry of Health, the COVID-19 experience, international best practice, the establishment of a multi-agency taskforce on 23rd October 2024, the taskforce report of 20th February 2025, and a high-level stakeholder engagement meeting held in March 2025 with County Executive Committee Members for Health and County Directors of Health.
71. Those matters may demonstrate administrative engagement in the operationalisation phase. They do not answer the core question: whether, before Legal Notice No. 14 of 2022 was issued, the public, county governments, affected professional bodies and health sector stakeholders were given adequate notice, information and opportunity to make representations on the creation, mandate, governance structure, intergovernmental linkages and impact of KNPHI.
72. A taskforce created in October 2024 and meetings held in March 2025 cannot retrospectively cure a constitutional defect in a Legal Notice made in January 2022.
73. The burden of proving that constitutionally sufficient public participation was undertaken lies, in the circumstances of this case, on the public authorities who made the impugned instrument and who are in possession of the relevant notices, minutes, attendance lists, memoranda, reports, stakeholder comments and decision records.
74. The material placed before the Court does not demonstrate a structured pre-gazettement public participation process specifically directed at the establishment of KNPHI through Legal Notice No. 14 of 2022.
75. Public participation is context-sensitive. It does not require that every citizen be heard. It also does not mean that the views received are binding on the decision maker. However, it requires evidence that reasonable notice was given, relevant information was made available, affected stakeholders and the public were afforded a meaningful opportunity to comment, and their views received due consideration before the decision was made.
76. I therefore find that the establishment of KNPHI through Legal Notice No. 14 of 2022 did not meet the constitutional threshold of public participation and targeted stakeholder engagement required by Article 10.
Constitutional Threshold
77. On whether the petitions meet the threshold set in Anarita Karimi Njeru v Republic [1979] eKLR and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, the Petitioners pleaded violations of Articles 1, 2, 3(1), 6, 10, 19, 20, 21, 22, 23, 24, 27, 28, 41, 43, 47, 73, 75, 129, 130, 131, 132, 162, 165, 186, 187, 189, 190, 232, 236, 258, 259 and 260 of the Constitution.
78. They linked those provisions to the challenged Legal Notice, the alleged lack of public participation, the alleged encroachment on devolved health functions, public service values and the right to health. I am satisfied that the petitions meet the threshold for constitutional petitions in Kenya.
Appropriate Relief
79. Article 23 of the Constitution empowers this Court to grant appropriate relief, including declarations, conservatory orders, judicial review orders and any other relief necessary to enforce the Constitution.
80. Appropriate relief must be effective, proportionate and responsive to the violation established. It must also take into account the public interest and the need to avoid disruption to essential public services.
81. This Court has found that the objective of strengthening national public health coordination is legitimate and constitutionally permissible. It has also found that the impugned Legal Notice was made and is being operationalised without sufficient evidence of pre-gazettement public participation, targeted stakeholder engagement and a clear intergovernmental framework respecting county health functions.
82. An order quashing the Legal Notice with immediate effect may create uncertainty in disease surveillance, laboratory coordination, emergency preparedness and public health response, especially during the current regional outbreak of Ebola in East and Central Africa. Conversely, allowing the instrument to stand without conditions
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