REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E094 OF 2025
MAATHAI BONIFACE NDIRANGU ...….… ………………PETITIONER
-VERSUS-
THE CABINET SECRETARY, HEALTH …..……… ..1 ST RESPONDENT
THE INSURANCE REGULATORY AUTHORITY … 2 ND RESPONDENT
THE SOCIAL HEALTH AUTHORITY ……………… 3 RD RESPONDENT
THE ATTORNEY-GENERAL ………….…...………... 4 TH RESPONDENT
JUDGMENT
1. The Petition dated 20 th February 2025 seeks the following reliefs:
(1 A DECLARATION that the use of biometric for identification of patients for treatment at the health facilities has failed in numerous occasions leading to patients being deprived of emergency medical treatment as enshrined under Article 43 (2) of the Constitution of Kenya.
(2 A DECLARATION do issue that the use of technology fails and therefore reliance solely on technology for identification of patients for treatment without an alternative method of identification of patients poses risks and therefore not advisable in all situations, especially in critical emergency situations, as the same infringes on citizens’ rights as enshrined under Article 43 (1) (a) and 43 (2) of the Constitution of Kenya, 2010.
(3 An Order do issue to compel insurance companies and stakeholders to include the use of medical insurance cards as an alternative mode of identification to biometric as the same is simple, reliable and efficient.
(4 Any other Order do issue in the furtherance of justice and fairness.
(5 Costs of the suit.
2. The Petition is supported by the Petitioner’s affidavit sworn evenly with the Petition and is premised on the grounds on the face of it. Concurrently with the Petition, the Petitioner filed a Notice of Motion Application also dated 20 th February 2025 seeking the following ORDERS: –
(1 SPENT
(2 THAT pending the hearing and determination of this Application, this Honourable Court do issue Conservatory Orders for the implementation of the 2 nd Respondent's directives issued on the 13 th September 2024 by the 2 nd Respondent’s Commissioner within 14 days from the issuance of this Order and a report on the implementation be availed before this Honourable Court on the same.
(3 THAT pending the hearing and determination of this Petition, this Honourable Court do issue Conservatory Orders for the implementation of the 2 nd Respondent's directives issued on the 13 th September 2024 by the 2 nd Respondent’s Commissioner within 14 days from the issuance of this Order and a report on the implementation be availed before this Honourable Court on the same.
(4 THAT this Honourable Court do issue any other Orders in the furtherance of justice and fairness in the circumstances
(5 THAT costs of the Application be provided for.
3. The Application was premised on the grounds on the face of it and supported by the Petitioner’s sworn affidavit which was also dated 20 th February 2025.
4. On 12 th May 2025, the Petitioner again filed another Notice of Motion Application seeking the following prayers: -
(1 SPENT
(2 THAT this Honourable Court do allow the prayers in the Application dated 20 th February2025 in terms of Orders (2) and (3) and the Court do issue directions on the hearing of the Petition.
(3 Costs of the Application be provided for.
5. In summary, the Petitioner claims that the Social Health Authority (SHA), the 3 rd Respondent herein relies excessively on technology-based identification methods by use of biometric One-Time-Password OTP systems for accessing medical services.
6. It is alleged that failures in technology, including data breaches and data entry errors, have hindered access to healthcare, violating the constitutional right to health under Article 43(1)(a) of the Constitution .
7. The Petitioner contends that the 2 nd and 3 rd Respondents failed to provide a reliable and simple mode of identification such as medical cards to supplement technology-based systems and asserts that the 2 nd Respondent is responsible for ensuring effective regulation of insurance and reinsurance to prevent infringement of policyholders’ rights under Article 43 of the Constitution .
8. In response to the Applications and the Petition, the 2 nd Respondent filed a Replying Affidavit sworn by the Commissioner, Godfrey Kiptum dated 8 th August 2025 in which he deposed that the 3 rd Respondent the Social Health Authority is not an insurance company or intermediary and therefore, does not fall under their regulatory jurisdiction as defined by the Insurance Act and the court cannot issue orders against them regarding SHA’s operations.
9. It is deponed that the Social Health Authority Act already established a Dispute Resolution Tribunal to handle complaints related to social health insurance and therefore, filing a constitutional petition without first utilizing this Tribunal violates the legal doctrine of exhaustion of remedies.
10. It is contended that the Petitioner previously raised the exact same complaints regarding the Teachers Service Commission Medical Scheme managed by Minet Insurance Brokers in a different court case - ELRC No. E829 of 2022 – in which the 2 nd Respondent already intervened, engaged with the parties and issued specific directives to Minet on 13 th September, 2024.
11. The 2 nd Respondent pleads that those directives ordered Minet to provide alternative identification methods when SMS One-Time Pins (OTPs) fails, communicate promptly when hospitals are removed from the approved panels, stop denying medication/treatment for terminal illnesses due to delays in approval, enforce contract terms with medical facilities and sensitize teachers about the scheme and improve pre-authorization processes.
12. The 2 nd Respondent avers that the Petitioner is wrongly confusing issues regarding their private Group Life Insurance managed by Minet, which the IRA regulates with the public Social Health Insurance managed by the SHA, which the IRA does not regulate.
13. It is asserted that private health insurance is governed by private contracts between parties, and is not a constitutional guarantee under Article 43 of the Constitution which deals with economic and social rights.
14. It is argued that the Petition is legally defective as it fails to provide specific details on how constitutional rights were violated, failing the well-known Anarita Karimi Njeru legal test. That the petition also violates the procedure Rules under the Constitution, The Mutunga Rules and does not actually raise valid constitutional issues. It is urged that the Court should dismiss the Petition entirely and order the Petitioner to pay the legal costs.
15. On their part, the 1 st , 3 rd and 4 th Respondents jointly filed Grounds of Opposition dated 12 th June 2025 opposing the Petition and its attendant Applications on several grounds inter alia, that the Petition is scandalous vexatious, is couched in general terms and does not disclose a cause of action.
16. It is contended that Integration of ICT in healthcare is supported and mandated by existing statutes and policies, including: Article 43(a) of the Constitution which guarantees the right to the highest attainable standard of health, including reproductive health care; Section 15 (1) (e), (r), (u) of the Health Act which assigns the Ministry of Health responsibilities including providing technical support aimed at health system strengthening, developing and expanding a National Health Information Management System, promoting appropriate health technologies to improve healthcare quality; and Section 105 of the Health Act which enjoins the Ministry of Health to facilitate the establishment and maintenance of a comprehensive integrated Health information system
17. The 1 st ,2 nd , and 3 rd Respondents stress the irrefutable utility of IHITS in delivering timely, patient-centred, effective, accountable and inclusive healthcare service and asserts that the Kenya Universal Health Coverage Policy (2020–2030) acknowledges that prior to IHITS rollout, the healthcare information system was fragmented with multiple gaps
18. They assert that the claim that the biometric system used by Minet Kenya Insurance Brokers Limited is faulty, lacks supporting evidence and contradicts the requirements of Section 106 of the Evidence Act . They further contend that the issue of ICT infrastructure functionality for Universal Healthcare is sub judice as it is currently under judicial consideration in Petition No. E513 of 2024.
19. The three respondents additionally contend that technological issues should not be escalated to being constitutional questions but should be resolved through administrative, contractual and legal remedies as recognized by the Supreme Court’s ruling in Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Presidential Election Petition, 2022 ), where the Court is said to have emphasised prompt remedial measures for emergent challenges rather than constitutional escalation.
20. In a rejoinder, the Petitioner filed a Supplementary Affidavit dated 27 th October 202 5 in response to the Grounds of Opposition and the Replying Affidavit. The Petitioner asserts that he is challenging systemic, administrative and technological failures within the healthcare insurance scheme for public school teachers under the MINET insurance scheme which amount to constitutional violations affecting a vulnerable group, public school teachers and their dependents and raises concerns about the impending transition to the Social Health Authority (SHA) under the new Public Service Medical Fund (PSMF).
21. He deposes that there are constitutional violations under Articles 28 on human dignity, Article 35 on access to information, Article 43 on the right to health and Article 47 on fair administrative action.
22. The Petitioner asserts that systemic failures in the MINET scheme have caused denial of medical services to teachers due to biometric verification failures, loss of registered contact numbers linked to insurance accounts, abrupt termination of contracts with healthcare providers and lapses in insurance coverage without interim solutions, citing real-life scenarios collected from affected teachers to illustrate the consequences of these failures.
23. It is pleaded that these denials resulted in pain, anxiety, trauma and worsening health conditions, violating rights to health, dignity and fair treatment.
24. The Petitioner decries overreliance on digital and biometric systems without fall-back mechanisms and states that there is lack of human support systems or accessible grievance redress channels. It is stated that there is no manual override for OTP-based verification which excludes users without phones or with lost contact details.
25. The 2 nd Respondent the, Insurance Regulatory Authority’s claim that grievances should now be directed to the Social Health Authority Tribunal is challenged by the petition for reasons that violations occurred under MINET, before SHA and that the SHA Tribunal is not yet fully constituted or functional, thus it cannot offer effective remedies and that there is no evidence that alternative statutory mechanisms provide adequate constitutional remedies, referencing Article 22 of the Constitution and the Mumo Matemu decisions.
26. The petitioner further contends that the transition to SHA, effective 1 st December 2025, poses continuing risks to constitutional rights because SHA currently lacks published operational guidelines to address biometric failures, insurance denials, emergency access, or vulnerable users without phones; clear complaints or redress mechanisms to handle digital exclusion, data privacy breaches, or wrongful denial of healthcare; a proper transition framework or ombudsperson oversight; and a human-rights aligned data protection regime for biometric health data.
27. The deponent petitioner emphasises the Government of Kenya’s constitutional obligation under Article 21(1) to protect rights, specifically the right to health under Article 43(1)(a) of the Constitution . It is urged that failure to provide emergency access or manual verification options contravenes Article 10 on inclusiveness, Article 27 on Equality and Non-discrimination and Article 47 on Fair administrative action.
28. The Petitioner asserts that the Court has jurisdiction under Article 165 (3) (b) to determine violations or threats to fundamental rights and urges the Court to grant the reliefs sought in the Petition; ensure future health schemes, including SHA, comply with constitutional standards on human dignity, non-discrimination, and responsiveness; and prevent recurrence of the injustices experienced under MINET.
29. The parties took directions before this Court (differently constituted before Hon. E.C. Mwita J.) to canvass the Petition by way of written submissions which were also to be highlighted before the Court.
The Petitioner’s Submissions
30. The Petitioner’s Submissions are dated 22 nd October 2025 . Learned Counsel for the Petitioner Dr. Khaminwa isolates five issues for determination and these issues are:
i. Whether the instant petition is a competent constitutional petition;
ii. Whether the Respondents violated or threatened to violate the Petitioners constitutional rights under Articles 28, 35, 43(1)(a) and 47 of the Constitution;
iii. Whether the implementation of a purely biometric/ICT-based healthcare access system without adequate safeguards constitutes unfair administrative action;
iv. Whether the transition to the Social Health Authority, as currently framed, is constitutionally compliant; and
v. Whether the Respondents failed in their statutory and constitutional duties to regulate, protect and ensure access to healthcare.
31. On the first issue, it is submitted that the doctrines of exhaustion of remedies and sub judice do not bar access to the High Court since the cases of Justus Kariuki Mate v Martin Nyaga Wambora (2017) eKLR and Albert Chaurembo Mumbo & Others v Maurice Munyao (2019) eKLR established that constitutional questions and ineffective alternative remedies justify direct court action because the doctrine of exhaustion is not absolute by dint of Article 22 (1) of the Constitution which grants every person the right to institute court proceedings where a violation or threat of violation of the Bill of Rights is alleged and Article 23(1) of the Constitution which empowers the Court to grant appropriate reliefs, including declarations, injunctions and compensation for violations of fundamental rights.
32. Counsel submits on the exceptions to the doctrine of exhaustion and cites the cases of Speaker of the National Assembly v Karume [1992] eKLR, the Supreme Court in Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others [2019] eKLR and Krystalline Salt Ltd v KRA & 8 Others, Mombasa High Court Petition No. 159 of 2018 in support of these arguments and argues further that the Insurance Regulatory Authority’s mandate excludes constitutional remedies that may accrue in cases of alleged violations of right to health under Article 43(1)(a) of the Constitution, violation of right to human dignity under Article 28, violation of right to fair administrative action under Article 47 and violation of right to access information under Article 35 of the constitution, making the High Court’s intervention necessary.
33. Counsel for the petitioner submits that the right to the highest attainable standard of health includes access to healthcare services and that the Kenyan teachers were denied healthcare due to expired biometric links, loss of OTP-linked phone numbers and expired insurance contracts without continuity. They cited the cases of Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981) by the Supreme Court of India on the right to life including access to medical care and the case of PAO v Attorney General (2020) eKLR which highlights that public health must be accessible in law and fact, beyond digital platforms.
34. Further submission is that the denial of health care due to biometric failures humiliates and degrades individuals against the set precedent in A.M.K. & Another v Attorney General (2020) eKLR , and Article 28 of the Constitution and asserts that degrading administrative hurdles violate this fundamental right.
35. It is also submitted that the biometric-only system lacks alternatives such as manual verification, rendering administrative actions procedurally unfair and unreasonable, contrary to the well-established principle in Dry Associates Ltd v Capital Markets Authority (2012) where the Court held that administrative actions must be lawful and fair.
36. On the final issue, it is submitted that the Respondents failed to issue timely information on insurance discontinuations, SHA transition, hospital listings, emergency contact and verification protocols contrary to the principle of access to information under Article 35 of the Constitution which is crucial for rights enforcement as held in Nairobi Law Monthly Co. Ltd v Kenya Electricity Generating Co. Ltd (2013) eKLR.
37. It is further submitted that the 2 nd Respondent, the Insurance Regulatory Authority failed to ensure emergency treatment and alternative verification methods, while the Cabinet Secretary for Health and the Social Health Authority neglected oversight to prevent denial of emergency care and ensure guidance on biometric alternatives, contrary to the court’s decision in Satrose Ayuma & 11 others v Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme & 3 others [2013] e KLR , where the Court is said to have held that public bodies have a duty to protect rights even where services are outsourced. That further, the upcoming SHA rollout lacked published rules on data protection, fall-back mechanisms and public participation, thereby violating constitutional values under Article 10 of the Constitution on transparency, accountability and inclusivity.
38. The petitioner urges that the prayers sought be allowed because the Petition is not frivolous or an academic exercise, but raises genuine constitutional issues concerning digital exclusion, administrative rigidity and access to healthcare for public servants.
The 2 nd Respondent’s Submissions
39. The 2 nd Respondent’s submissions are dated 11 th November 2025 . Ms. Ndirangu, Learned Counsel for the 2 nd Respondent identifies three main issues for the Court’s determination being:
i. Whether the Petition offends the principles of exhaustion of remedies;
ii. Whether the Petition meets the threshold of a Constitutional Petition; and
iii. Whether the Petition is contrary to the doctrine of Constitutional avoidance .
40. On the first issue, it is submitted that the Petition largely alleges system-wide denial of emergency medical care due to the replacement of medical cards by OTP biometric authentication, managed by entities including MINET and the SHA. Counsel asserts that the 2 nd Respondent is a statutory body established under Section 3 of the Insurance Act, Cap 487 and mandated to regulate insurance and reinsurance businesses in Kenya and outlines is functions inter alia , the supervising and regulating of insurance and reinsurance businesses; licensing insurance-related entities; advising the government on insurance policies; and issuing supervisory guidelines and prudential standards amongst others. That the 3 rd Respondent, SHA, is neither an insurance nor reinsurance company and thus falls outside the regulatory scope of the 2 nd Respondent.
41. Counsel submits that the Petitioner had previously raised similar issues in a separate case, Employment and Labour Relations Court case Nairobi Cause No. E829 of 2022 Mathai Boniface Ndirangu v Teachers Service Commission & Minet Kenya Insurance Brokers Limited, relating to MINET and the Teachers Service Commission (TSC) medical insurance scheme where the 2 nd Respondent intervened, conducted meetings and issued several directives on 13 th September 2024 to MINET Insurance Brokers Limited to generally strengthen their healthcare and insurance systems by implementing backup identification methods, improve communication, expedite critical approvals, enforce facility compliance, regularly educate teachers on benefits and streamline pre-authorisation processes. That from this decision, the Petitioner did not appeal the said directive.
42. Counsel submits that Section 173 of the Insurance Act requires aggrieved persons to appeal decisions from the Commissioner to the Insurance Appeals Tribunal within one month while Section 9(2) of the Fair Administrative Action Ac t mandates exhaustion of administrative remedies before the Court’s intervention.
43. Further, that the doctrine of exhaustion ensures administrative mechanisms are first utilised before judicial recourse as was held in the case of William Odhiambo Ramogi & 3 Others v Attorney General & 4 others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR and that the Petitioner herein failed to exhaust these remedies making the Petition premature and liable for dismissal. Counsel also cited the High Court’s Judicial Review decision by Chigiti J. in Old Mutual General Insurance Kenya Ltd vs. Insurance Regulatory Authority and Tropic Air Ltd. Judicial Review Miscellaneous Application E030 of 2024 [2025] KEHC 4570 (KLR) in support of their arguments.
44. Counsel for the 2 nd Respondent also cites the case of Republic vs. Institute of Certified Public Secretaries of Kenya (Ex-Parte Mundia Njeru Geteru) (2010) eKLR and submits that the Petitioner’s conduct of relying on the 2 nd Respondent’s decision without appeal and simultaneously alleging breaches, amounts to approbation and reprobation which is inconsistent legal behaviour.
45. Counsel also relied on the case of Kenya Human Rights Commission v Insurance Regulatory Authority; Association of Kenya Insurers (Interested Party) (Petition E002 of 2022) [2024] KEHC 16211 (KLR) where the High Court held that the Insurance Act has comprehensive in-built mechanisms for addressing complaints pertaining to matters of insurance, thus the invocation of the Constitution was unwarranted as the dispute was not constitutional. It is urged that the Court must down its tools as a consequence, as held by the Supreme Court in the case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR [36].
46. Counsel defines the doctrine of Constitutional Avoidance as the principle that courts should avoid deciding constitutional questions if matters can be resolved on other grounds. It is submitted that courts have consistently held that parties must exhaust appropriate alternative forums before invoking constitutional jurisdiction. That the Petition herein is primarily a civil dispute with a private insurance broker elevated improperly to a constitutional claim. The cases of Mutyaene v KCB Bank Ltd & another (Petition No. 412 of 2020) [2023] KEHC 2205 (KLR), Nyambu v Munza & 4 others (2024) KEHC 12101 and Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992) were cited in support of what constitutes a constitutional question.
47. Counsel for the 2 nd Respondent submits that the Petition offends this doctrine because the Petitioner’s grievance relates to the Social Health Insurance system managed by the SHA, outside the 2 nd Respondent’s regulatory mandate and asserts that the Petitioner has not demonstrated any violation of constitutional rights attributable to the 2 nd Respondent. It is also contended that the Petition is a mischaracterisation of a regulatory issue as a constitutional infringement.
48. On the third issue of whether the Petition has met the legal threshold for constitutional petition, Counsel submits that it is insufficient to merely cite constitutional provisions since the Petition must specify the precise complaint, the constitutional provisions infringed and the manner of infringement as established in Anarita Karimi Njeru vs. The Republic (1979) eKLR and restated in Mumo Matemo vs. Trusted Society of Human Rights Alliance (2013) eKLR .
49. Further submission is that the Petitioner admits the 2 nd Respondent’s regulatory mandate but misunderstands its scope in relation to the SHA. It is reiterated that SHA is not regulated under the Insurance Act and has its own dispute resolution tribunal. That the Petition herein conflates issues between private insurance regulation and social health insurance provision.
50. The 2 nd Respondent emphasises that private health insurance contracts are commercial arrangements, not constitutional guarantees and that the Petition fails to specify how they infringed constitutional rights, failing the required legal threshold.
51. It is submitted that the 2 nd Respondent is a regulator of the Insurance industry and their role must be distinguished from the role of a provider of insurance service as emphasized in the case of Banking Insurance and Finance Union v Insurance Regulatory Authority (Cause E161 of 2022) [2025] KEELRC 2982 (KLR) (22 October 2025) (Judgment) . They urged that the Petition be dismissed with costs.
The Attorney General’s Submissions on behalf of the 1 st , 3 rd and 4 th Respondents
52. The Attorney-General’s submissions are dated 28 th October 2025, opposing the Petition for three main legal reasons being: that it is a violation of the restraint and effective remedy principle under the doctrine of exhaustion of administrative remedies; that the Petition is sub judice and that the integration of Information and Communication Technology (ICT) in health provision is a factual and legal imperative, not raising constitutional claims.
53. On the first legal issue that the Petition militates against the restraint and effective remedy principle, Learned Deputy Chief State Counsel Mr. Kaumba submits that the 2 nd Respondent, Insurance Regulatory Authority (IRA) is established under Section 3A of the Insurance Act and is responsible for supervising, regulating and controlling insurance and reinsurance businesses; ensuring a fair, safe and stable insurance sector; protecting the interests of policyholders and promoting insurance sector development.
54. That consequently, the 2 nd Respondent IRA has enforcement powers, including investigations, inspections, directions and imposing civil/criminal sanctions and as such, appeals against IRA decisions are to be made to a designated Tribunal under Section 169(1) of the Insurance Act .
55. It is submitted that the Petitioner had already lodged a complaint with the IRA on 16 th October 2023, which was considered and directions were issued to Minet Insurance Brokers on 4 th July 2024. That instead of appealing within the IRA framework or seeking further remedy on the alleged non-compliance, the Petitioner filed this Petition, bypassing the established statutory remedies and thereby violating the principle of restraint and effective remedy.
56. Counsel submits that the doctrine of exhaustion of administrative remedies mandates that courts should allow designated agencies to first resolve disputes as established by the Supreme Court in the cases of Justus Kariuki Mate & another v. Martin Nyaga Wambora & another (2017) eKLR and Nicholus v Attorney General & 7 others (2023) eKLR and comparative jurisprudence from the Supreme Court of India in United Bank of India vs Satyawati Tondon & Others, 2010 8 SCC all which support judicial restraint where effective alternative remedies exist. That at the same time, there were exceptions to the doctrine of exhaustion where there is demonstrated hardship, which is not present in this case.
57. It is their submission that the Petition raises issues similar to those in a pending case before the Nairobi High Court, HCPET E513 of 2024 , concerning procurement and the functionality of the Integrated Health Management System and that the doctrine of sub judice bars courts from hearing a matter that is already directly and substantially in issue in a pending suit between the same parties as codified under Section 6 of the Civil Procedure Act . Counsel explains that the purpose of the doctrine is to prevent multiplicity of suits, avoid abuse of court process and prevent conflicting court orders as held by the Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General & 16 others (2020) eKLR.
58. It is further submitted that the substance of the suit, not just its form, determines whether it is sub judice as held in Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR and states that given the Petitioner’s knowledge of the earlier pending case, filing this Petition amounts to an abuse of court process. They also cited the Court of Appeal’s decision in Gathariki v Cheko Plot Owners Association & another (2025) eKLR where it was held that multiplicity of actions on the same matter is an abuse of process and can warrant dismissal rather than just a stay. They urged that this Petition should be struck out for abuse of court process.
59. It is submitted on the third limb that the use of ICT, including the Integrated Healthcare Information Technology System (IHITS), is mandated and supported under the health policy and law where the Health Act at Sections 15 (1) (e), (r), and (u) , charges the Ministry of Health with providing technical support to health systems, developing and expanding a national health information management system and promoting appropriate health technologies to improve healthcare quality. The Kenya Universal Health Coverage Policy (2020–2030) also acknowledges prior health information system fragmentation and highlights the necessi
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E094 OF 2025
MAATHAI BONIFACE NDIRANGU ...….… ………………PETITIONER
-VERSUS-
THE CABINET SECRETARY, HEALTH …..……… ..1 ST RESPONDENT
THE INSURANCE REGULATORY AUTHORITY … 2 ND RESPONDENT
THE SOCIAL HEALTH AUTHORITY ……………… 3 RD RESPONDENT
THE ATTORNEY-GENERAL ………….…...………... 4 TH RESPONDENT
JUDGMENT
1. The Petition dated 20 th February 2025 seeks the following reliefs:
(1 A DECLARATION that the use of biometric for identification of patients for treatment at the health facilities has failed in numerous occasions leading to patients being deprived of emergency medical treatment as enshrined under Article 43 (2) of the Constitution of Kenya.
(2 A DECLARATION do issue that the use of technology fails and therefore reliance solely on technology for identification of patients for treatment without an alternative method of identification of patients poses risks and therefore not advisable in all situations, especially in critical emergency situations, as the same infringes on citizens’ rights as enshrined under Article 43 (1) (a) and 43 (2) of the Constitution of Kenya, 2010.
(3 An Order do issue to compel insurance companies and stakeholders to include the use of medical insurance cards as an alternative mode of identification to biometric as the same is simple, reliable and efficient.
(4 Any other Order do issue in the furtherance of justice and fairness.
(5 Costs of the suit.
2. The Petition is supported by the Petitioner’s affidavit sworn evenly with the Petition and is premised on the grounds on the face of it. Concurrently with the Petition, the Petitioner filed a Notice of Motion Application also dated 20 th February 2025 seeking the following ORDERS: –
(1 SPENT
(2 THAT pending the hearing and determination of this Application, this Honourable Court do issue Conservatory Orders for the implementation of the 2 nd Respondent's directives issued on the 13 th September 2024 by the 2 nd Respondent’s Commissioner within 14 days from the issuance of this Order and a report on the implementation be availed before this Honourable Court on the same.
(3 THAT pending the hearing and determination of this Petition, this Honourable Court do issue Conservatory Orders for the implementation of the 2 nd Respondent's directives issued on the 13 th September 2024 by the 2 nd Respondent’s Commissioner within 14 days from the issuance of this Order and a report on the implementation be availed before this Honourable Court on the same.
(4 THAT this Honourable Court do issue any other Orders in the furtherance of justice and fairness in the circumstances
(5 THAT costs of the Application be provided for.
3. The Application was premised on the grounds on the face of it and supported by the Petitioner’s sworn affidavit which was also dated 20 th February 2025.
4. On 12 th May 2025, the Petitioner again filed another Notice of Motion Application seeking the following prayers: -
(1 SPENT
(2 THAT this Honourable Court do allow the prayers in the Application dated 20 th February2025 in terms of Orders (2) and (3) and the Court do issue directions on the hearing of the Petition.
(3 Costs of the Application be provided for.
5. In summary, the Petitioner claims that the Social Health Authority (SHA), the 3 rd Respondent herein relies excessively on technology-based identification methods by use of biometric One-Time-Password OTP systems for accessing medical services.
6. It is alleged that failures in technology, including data breaches and data entry errors, have hindered access to healthcare, violating the constitutional right to health under Article 43(1)(a) of the Constitution .
7. The Petitioner contends that the 2 nd and 3 rd Respondents failed to provide a reliable and simple mode of identification such as medical cards to supplement technology-based systems and asserts that the 2 nd Respondent is responsible for ensuring effective regulation of insurance and reinsurance to prevent infringement of policyholders’ rights under Article 43 of the Constitution .
8. In response to the Applications and the Petition, the 2 nd Respondent filed a Replying Affidavit sworn by the Commissioner, Godfrey Kiptum dated 8 th August 2025 in which he deposed that the 3 rd Respondent the Social Health Authority is not an insurance company or intermediary and therefore, does not fall under their regulatory jurisdiction as defined by the Insurance Act and the court cannot issue orders against them regarding SHA’s operations.
9. It is deponed that the Social Health Authority Act already established a Dispute Resolution Tribunal to handle complaints related to social health insurance and therefore, filing a constitutional petition without first utilizing this Tribunal violates the legal doctrine of exhaustion of remedies.
10. It is contended that the Petitioner previously raised the exact same complaints regarding the Teachers Service Commission Medical Scheme managed by Minet Insurance Brokers in a different court case - ELRC No. E829 of 2022 – in which the 2 nd Respondent already intervened, engaged with the parties and issued specific directives to Minet on 13 th September, 2024.
11. The 2 nd Respondent pleads that those directives ordered Minet to provide alternative identification methods when SMS One-Time Pins (OTPs) fails, communicate promptly when hospitals are removed from the approved panels, stop denying medication/treatment for terminal illnesses due to delays in approval, enforce contract terms with medical facilities and sensitize teachers about the scheme and improve pre-authorization processes.
12. The 2 nd Respondent avers that the Petitioner is wrongly confusing issues regarding their private Group Life Insurance managed by Minet, which the IRA regulates with the public Social Health Insurance managed by the SHA, which the IRA does not regulate.
13. It is asserted that private health insurance is governed by private contracts between parties, and is not a constitutional guarantee under Article 43 of the Constitution which deals with economic and social rights.
14. It is argued that the Petition is legally defective as it fails to provide specific details on how constitutional rights were violated, failing the well-known Anarita Karimi Njeru legal test. That the petition also violates the procedure Rules under the Constitution, The Mutunga Rules and does not actually raise valid constitutional issues. It is urged that the Court should dismiss the Petition entirely and order the Petitioner to pay the legal costs.
15. On their part, the 1 st , 3 rd and 4 th Respondents jointly filed Grounds of Opposition dated 12 th June 2025 opposing the Petition and its attendant Applications on several grounds inter alia, that the Petition is scandalous vexatious, is couched in general terms and does not disclose a cause of action.
16. It is contended that Integration of ICT in healthcare is supported and mandated by existing statutes and policies, including: Article 43(a) of the Constitution which guarantees the right to the highest attainable standard of health, including reproductive health care; Section 15 (1) (e), (r), (u) of the Health Act which assigns the Ministry of Health responsibilities including providing technical support aimed at health system strengthening, developing and expanding a National Health Information Management System, promoting appropriate health technologies to improve healthcare quality; and Section 105 of the Health Act which enjoins the Ministry of Health to facilitate the establishment and maintenance of a comprehensive integrated Health information system
17. The 1 st ,2 nd , and 3 rd Respondents stress the irrefutable utility of IHITS in delivering timely, patient-centred, effective, accountable and inclusive healthcare service and asserts that the Kenya Universal Health Coverage Policy (2020–2030) acknowledges that prior to IHITS rollout, the healthcare information system was fragmented with multiple gaps
18. They assert that the claim that the biometric system used by Minet Kenya Insurance Brokers Limited is faulty, lacks supporting evidence and contradicts the requirements of Section 106 of the Evidence Act . They further contend that the issue of ICT infrastructure functionality for Universal Healthcare is sub judice as it is currently under judicial consideration in Petition No. E513 of 2024.
19. The three respondents additionally contend that technological issues should not be escalated to being constitutional questions but should be resolved through administrative, contractual and legal remedies as recognized by the Supreme Court’s ruling in Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Presidential Election Petition, 2022 ), where the Court is said to have emphasised prompt remedial measures for emergent challenges rather than constitutional escalation.
20. In a rejoinder, the Petitioner filed a Supplementary Affidavit dated 27 th October 202 5 in response to the Grounds of Opposition and the Replying Affidavit. The Petitioner asserts that he is challenging systemic, administrative and technological failures within the healthcare insurance scheme for public school teachers under the MINET insurance scheme which amount to constitutional violations affecting a vulnerable group, public school teachers and their dependents and raises concerns about the impending transition to the Social Health Authority (SHA) under the new Public Service Medical Fund (PSMF).
21. He deposes that there are constitutional violations under Articles 28 on human dignity, Article 35 on access to information, Article 43 on the right to health and Article 47 on fair administrative action.
22. The Petitioner asserts that systemic failures in the MINET scheme have caused denial of medical services to teachers due to biometric verification failures, loss of registered contact numbers linked to insurance accounts, abrupt termination of contracts with healthcare providers and lapses in insurance coverage without interim solutions, citing real-life scenarios collected from affected teachers to illustrate the consequences of these failures.
23. It is pleaded that these denials resulted in pain, anxiety, trauma and worsening health conditions, violating rights to health, dignity and fair treatment.
24. The Petitioner decries overreliance on digital and biometric systems without fall-back mechanisms and states that there is lack of human support systems or accessible grievance redress channels. It is stated that there is no manual override for OTP-based verification which excludes users without phones or with lost contact details.
25. The 2 nd Respondent the, Insurance Regulatory Authority’s claim that grievances should now be directed to the Social Health Authority Tribunal is challenged by the petition for reasons that violations occurred under MINET, before SHA and that the SHA Tribunal is not yet fully constituted or functional, thus it cannot offer effective remedies and that there is no evidence that alternative statutory mechanisms provide adequate constitutional remedies, referencing Article 22 of the Constitution and the Mumo Matemu decisions.
26. The petitioner further contends that the transition to SHA, effective 1 st December 2025, poses continuing risks to constitutional rights because SHA currently lacks published operational guidelines to address biometric failures, insurance denials, emergency access, or vulnerable users without phones; clear complaints or redress mechanisms to handle digital exclusion, data privacy breaches, or wrongful denial of healthcare; a proper transition framework or ombudsperson oversight; and a human-rights aligned data protection regime for biometric health data.
27. The deponent petitioner emphasises the Government of Kenya’s constitutional obligation under Article 21(1) to protect rights, specifically the right to health under Article 43(1)(a) of the Constitution . It is urged that failure to provide emergency access or manual verification options contravenes Article 10 on inclusiveness, Article 27 on Equality and Non-discrimination and Article 47 on Fair administrative action.
28. The Petitioner asserts that the Court has jurisdiction under Article 165 (3) (b) to determine violations or threats to fundamental rights and urges the Court to grant the reliefs sought in the Petition; ensure future health schemes, including SHA, comply with constitutional standards on human dignity, non-discrimination, and responsiveness; and prevent recurrence of the injustices experienced under MINET.
29. The parties took directions before this Court (differently constituted before Hon. E.C. Mwita J.) to canvass the Petition by way of written submissions which were also to be highlighted before the Court.
The Petitioner’s Submissions
30. The Petitioner’s Submissions are dated 22 nd October 2025 . Learned Counsel for the Petitioner Dr. Khaminwa isolates five issues for determination and these issues are:
i. Whether the instant petition is a competent constitutional petition;
ii. Whether the Respondents violated or threatened to violate the Petitioners constitutional rights under Articles 28, 35, 43(1)(a) and 47 of the Constitution;
iii. Whether the implementation of a purely biometric/ICT-based healthcare access system without adequate safeguards constitutes unfair administrative action;
iv. Whether the transition to the Social Health Authority, as currently framed, is constitutionally compliant; and
v. Whether the Respondents failed in their statutory and constitutional duties to regulate, protect and ensure access to healthcare.
31. On the first issue, it is submitted that the doctrines of exhaustion of remedies and sub judice do not bar access to the High Court since the cases of Justus Kariuki Mate v Martin Nyaga Wambora (2017) eKLR and Albert Chaurembo Mumbo & Others v Maurice Munyao (2019) eKLR established that constitutional questions and ineffective alternative remedies justify direct court action because the doctrine of exhaustion is not absolute by dint of Article 22 (1) of the Constitution which grants every person the right to institute court proceedings where a violation or threat of violation of the Bill of Rights is alleged and Article 23(1) of the Constitution which empowers the Court to grant appropriate reliefs, including declarations, injunctions and compensation for violations of fundamental rights.
32. Counsel submits on the exceptions to the doctrine of exhaustion and cites the cases of Speaker of the National Assembly v Karume [1992] eKLR, the Supreme Court in Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others [2019] eKLR and Krystalline Salt Ltd v KRA & 8 Others, Mombasa High Court Petition No. 159 of 2018 in support of these arguments and argues further that the Insurance Regulatory Authority’s mandate excludes constitutional remedies that may accrue in cases of alleged violations of right to health under Article 43(1)(a) of the Constitution, violation of right to human dignity under Article 28, violation of right to fair administrative action under Article 47 and violation of right to access information under Article 35 of the constitution, making the High Court’s intervention necessary.
33. Counsel for the petitioner submits that the right to the highest attainable standard of health includes access to healthcare services and that the Kenyan teachers were denied healthcare due to expired biometric links, loss of OTP-linked phone numbers and expired insurance contracts without continuity. They cited the cases of Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981) by the Supreme Court of India on the right to life including access to medical care and the case of PAO v Attorney General (2020) eKLR which highlights that public health must be accessible in law and fact, beyond digital platforms.
34. Further submission is that the denial of health care due to biometric failures humiliates and degrades individuals against the set precedent in A.M.K. & Another v Attorney General (2020) eKLR , and Article 28 of the Constitution and asserts that degrading administrative hurdles violate this fundamental right.
35. It is also submitted that the biometric-only system lacks alternatives such as manual verification, rendering administrative actions procedurally unfair and unreasonable, contrary to the well-established principle in Dry Associates Ltd v Capital Markets Authority (2012) where the Court held that administrative actions must be lawful and fair.
36. On the final issue, it is submitted that the Respondents failed to issue timely information on insurance discontinuations, SHA transition, hospital listings, emergency contact and verification protocols contrary to the principle of access to information under Article 35 of the Constitution which is crucial for rights enforcement as held in Nairobi Law Monthly Co. Ltd v Kenya Electricity Generating Co. Ltd (2013) eKLR.
37. It is further submitted that the 2 nd Respondent, the Insurance Regulatory Authority failed to ensure emergency treatment and alternative verification methods, while the Cabinet Secretary for Health and the Social Health Authority neglected oversight to prevent denial of emergency care and ensure guidance on biometric alternatives, contrary to the court’s decision in Satrose Ayuma & 11 others v Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme & 3 others [2013] e KLR , where the Court is said to have held that public bodies have a duty to protect rights even where services are outsourced. That further, the upcoming SHA rollout lacked published rules on data protection, fall-back mechanisms and public participation, thereby violating constitutional values under Article 10 of the Constitution on transparency, accountability and inclusivity.
38. The petitioner urges that the prayers sought be allowed because the Petition is not frivolous or an academic exercise, but raises genuine constitutional issues concerning digital exclusion, administrative rigidity and access to healthcare for public servants.
The 2 nd Respondent’s Submissions
39. The 2 nd Respondent’s submissions are dated 11 th November 2025 . Ms. Ndirangu, Learned Counsel for the 2 nd Respondent identifies three main issues for the Court’s determination being:
i. Whether the Petition offends the principles of exhaustion of remedies;
ii. Whether the Petition meets the threshold of a Constitutional Petition; and
iii. Whether the Petition is contrary to the doctrine of Constitutional avoidance .
40. On the first issue, it is submitted that the Petition largely alleges system-wide denial of emergency medical care due to the replacement of medical cards by OTP biometric authentication, managed by entities including MINET and the SHA. Counsel asserts that the 2 nd Respondent is a statutory body established under Section 3 of the Insurance Act, Cap 487 and mandated to regulate insurance and reinsurance businesses in Kenya and outlines is functions inter alia , the supervising and regulating of insurance and reinsurance businesses; licensing insurance-related entities; advising the government on insurance policies; and issuing supervisory guidelines and prudential standards amongst others. That the 3 rd Respondent, SHA, is neither an insurance nor reinsurance company and thus falls outside the regulatory scope of the 2 nd Respondent.
41. Counsel submits that the Petitioner had previously raised similar issues in a separate case, Employment and Labour Relations Court case Nairobi Cause No. E829 of 2022 Mathai Boniface Ndirangu v Teachers Service Commission & Minet Kenya Insurance Brokers Limited, relating to MINET and the Teachers Service Commission (TSC) medical insurance scheme where the 2 nd Respondent intervened, conducted meetings and issued several directives on 13 th September 2024 to MINET Insurance Brokers Limited to generally strengthen their healthcare and insurance systems by implementing backup identification methods, improve communication, expedite critical approvals, enforce facility compliance, regularly educate teachers on benefits and streamline pre-authorisation processes. That from this decision, the Petitioner did not appeal the said directive.
42. Counsel submits that Section 173 of the Insurance Act requires aggrieved persons to appeal decisions from the Commissioner to the Insurance Appeals Tribunal within one month while Section 9(2) of the Fair Administrative Action Ac t mandates exhaustion of administrative remedies before the Court’s intervention.
43. Further, that the doctrine of exhaustion ensures administrative mechanisms are first utilised before judicial recourse as was held in the case of William Odhiambo Ramogi & 3 Others v Attorney General & 4 others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR and that the Petitioner herein failed to exhaust these remedies making the Petition premature and liable for dismissal. Counsel also cited the High Court’s Judicial Review decision by Chigiti J. in Old Mutual General Insurance Kenya Ltd vs. Insurance Regulatory Authority and Tropic Air Ltd. Judicial Review Miscellaneous Application E030 of 2024 [2025] KEHC 4570 (KLR) in support of their arguments.
44. Counsel for the 2 nd Respondent also cites the case of Republic vs. Institute of Certified Public Secretaries of Kenya (Ex-Parte Mundia Njeru Geteru) (2010) eKLR and submits that the Petitioner’s conduct of relying on the 2 nd Respondent’s decision without appeal and simultaneously alleging breaches, amounts to approbation and reprobation which is inconsistent legal behaviour.
45. Counsel also relied on the case of Kenya Human Rights Commission v Insurance Regulatory Authority; Association of Kenya Insurers (Interested Party) (Petition E002 of 2022) [2024] KEHC 16211 (KLR) where the High Court held that the Insurance Act has comprehensive in-built mechanisms for addressing complaints pertaining to matters of insurance, thus the invocation of the Constitution was unwarranted as the dispute was not constitutional. It is urged that the Court must down its tools as a consequence, as held by the Supreme Court in the case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR [36].
46. Counsel defines the doctrine of Constitutional Avoidance as the principle that courts should avoid deciding constitutional questions if matters can be resolved on other grounds. It is submitted that courts have consistently held that parties must exhaust appropriate alternative forums before invoking constitutional jurisdiction. That the Petition herein is primarily a civil dispute with a private insurance broker elevated improperly to a constitutional claim. The cases of Mutyaene v KCB Bank Ltd & another (Petition No. 412 of 2020) [2023] KEHC 2205 (KLR), Nyambu v Munza & 4 others (2024) KEHC 12101 and Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992) were cited in support of what constitutes a constitutional question.
47. Counsel for the 2 nd Respondent submits that the Petition offends this doctrine because the Petitioner’s grievance relates to the Social Health Insurance system managed by the SHA, outside the 2 nd Respondent’s regulatory mandate and asserts that the Petitioner has not demonstrated any violation of constitutional rights attributable to the 2 nd Respondent. It is also contended that the Petition is a mischaracterisation of a regulatory issue as a constitutional infringement.
48. On the third issue of whether the Petition has met the legal threshold for constitutional petition, Counsel submits that it is insufficient to merely cite constitutional provisions since the Petition must specify the precise complaint, the constitutional provisions infringed and the manner of infringement as established in Anarita Karimi Njeru vs. The Republic (1979) eKLR and restated in Mumo Matemo vs. Trusted Society of Human Rights Alliance (2013) eKLR .
49. Further submission is that the Petitioner admits the 2 nd Respondent’s regulatory mandate but misunderstands its scope in relation to the SHA. It is reiterated that SHA is not regulated under the Insurance Act and has its own dispute resolution tribunal. That the Petition herein conflates issues between private insurance regulation and social health insurance provision.
50. The 2 nd Respondent emphasises that private health insurance contracts are commercial arrangements, not constitutional guarantees and that the Petition fails to specify how they infringed constitutional rights, failing the required legal threshold.
51. It is submitted that the 2 nd Respondent is a regulator of the Insurance industry and their role must be distinguished from the role of a provider of insurance service as emphasized in the case of Banking Insurance and Finance Union v Insurance Regulatory Authority (Cause E161 of 2022) [2025] KEELRC 2982 (KLR) (22 October 2025) (Judgment) . They urged that the Petition be dismissed with costs.
The Attorney General’s Submissions on behalf of the 1 st , 3 rd and 4 th Respondents
52. The Attorney-General’s submissions are dated 28 th October 2025, opposing the Petition for three main legal reasons being: that it is a violation of the restraint and effective remedy principle under the doctrine of exhaustion of administrative remedies; that the Petition is sub judice and that the integration of Information and Communication Technology (ICT) in health provision is a factual and legal imperative, not raising constitutional claims.
53. On the first legal issue that the Petition militates against the restraint and effective remedy principle, Learned Deputy Chief State Counsel Mr. Kaumba submits that the 2 nd Respondent, Insurance Regulatory Authority (IRA) is established under Section 3A of the Insurance Act and is responsible for supervising, regulating and controlling insurance and reinsurance businesses; ensuring a fair, safe and stable insurance sector; protecting the interests of policyholders and promoting insurance sector development.
54. That consequently, the 2 nd Respondent IRA has enforcement powers, including investigations, inspections, directions and imposing civil/criminal sanctions and as such, appeals against IRA decisions are to be made to a designated Tribunal under Section 169(1) of the Insurance Act .
55. It is submitted that the Petitioner had already lodged a complaint with the IRA on 16 th October 2023, which was considered and directions were issued to Minet Insurance Brokers on 4 th July 2024. That instead of appealing within the IRA framework or seeking further remedy on the alleged non-compliance, the Petitioner filed this Petition, bypassing the established statutory remedies and thereby violating the principle of restraint and effective remedy.
56. Counsel submits that the doctrine of exhaustion of administrative remedies mandates that courts should allow designated agencies to first resolve disputes as established by the Supreme Court in the cases of Justus Kariuki Mate & another v. Martin Nyaga Wambora & another (2017) eKLR and Nicholus v Attorney General & 7 others (2023) eKLR and comparative jurisprudence from the Supreme Court of India in United Bank of India vs Satyawati Tondon & Others, 2010 8 SCC all which support judicial restraint where effective alternative remedies exist. That at the same time, there were exceptions to the doctrine of exhaustion where there is demonstrated hardship, which is not present in this case.
57. It is their submission that the Petition raises issues similar to those in a pending case before the Nairobi High Court, HCPET E513 of 2024 , concerning procurement and the functionality of the Integrated Health Management System and that the doctrine of sub judice bars courts from hearing a matter that is already directly and substantially in issue in a pending suit between the same parties as codified under Section 6 of the Civil Procedure Act . Counsel explains that the purpose of the doctrine is to prevent multiplicity of suits, avoid abuse of court process and prevent conflicting court orders as held by the Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General & 16 others (2020) eKLR.
58. It is further submitted that the substance of the suit, not just its form, determines whether it is sub judice as held in Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR and states that given the Petitioner’s knowledge of the earlier pending case, filing this Petition amounts to an abuse of court process. They also cited the Court of Appeal’s decision in Gathariki v Cheko Plot Owners Association & another (2025) eKLR where it was held that multiplicity of actions on the same matter is an abuse of process and can warrant dismissal rather than just a stay. They urged that this Petition should be struck out for abuse of court process.
59. It is submitted on the third limb that the use of ICT, including the Integrated Healthcare Information Technology System (IHITS), is mandated and supported under the health policy and law where the Health Act at Sections 15 (1) (e), (r), and (u) , charges the Ministry of Health with providing technical support to health systems, developing and expanding a national health information management system and promoting appropriate health technologies to improve healthcare quality. The Kenya Universal Health Coverage Policy (2020–2030) also acknowledges prior health information system fragmentation and highlights the necessi
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