Luco Njagi & 21 others v Ministry of Health & 2 others [2015] eKLR members has been frustrated by litigation from various stakeholders. 73. So what do we have in the current case" Petitioners with an admittedly serious and debilitating condition, and whose long term prognosis, if they cannot get the renal dialysis that they require, is dire. Against this is an admittedly overburdened health care system that has to balance between the needs of the petitioners on the one hand and other, no less needy or deserving patients, on the other hand, and a public health insurance system that is contribution based and whose contributions have not been raised for the last quarter century. 74. Can it be said, in such circumstances, that the state has failed to meet its obligations to the petitioners with respect to their right to health" Can this court, in the present circumstances, order the state to meet the cost of dialysis for the petitioners in private hospitals, or direct the 3rd respondent to pay all the medical costs for the 22nd petitioner at private institutions out of its funds" 75. The facts of this case echo those that confronted the Constitutional Court of South Africa in the case of Soobramoney (supra), which emerge from the judgment of Chaskalson, P. In that case, the appellant was a 41 year old man with diabetes who also suffered from ischaemic heart disease and cerebro-vascular disease who had a stroke and whose kidneys also failed. At the time he filed his case, his condition was irreversible and he was at the final stages of chronic renal failure where his life could be prolonged by means of regular renal dialysis. He sought renal dialysis from the renal unit of the Addington state hospital in Durban, but the hospital could only provide dialysis treatment to a limited number of patients as the renal unit had 20 dialysis machines available, some of which were in poor condition. Each treatment took four hours, and a further two hours had to be allowed for the cleaning of a machine, before it could be used again for other treatment. As a result, the hospital was on most occasions unable to provide the appellant with the treatment he required. 76. The appellant therefore lodged his claim, alleging a violation of his right to emergency treatment guaranteed under section 27(3) of the South African Constitution, which is similar to our Article 43(2), violation of which is alleged by the 22nd petitioner, who argues that the 3rd respondent’s failure to pay for his life threatening dialysis treatment constitutes a denial of emergency medical treatment. 77. With regard to the appellant’s situation in that matter, the Court observed as follows: “The applicant suffers from chronic renal failure. To be kept alive by dialysis he would require such treatment two to three times a week. This is not an emergency which calls for immediate remedial treatment. It is an ongoing state of affairs resulting from a deterioration of the applicant’s renal function which is incurable. [22] The appellant’s demand to receive dialysis treatment at a state hospital must be determined in accordance with the provisions of sections 27(1) and (2) and not section 27(3). These sections entitle everyone to have access to health care services provided by the state “within its available resources”. 78. With regard to the question of the availability of resources in that case, the Court stated as follows: [11] What is apparent from these provisions is that the obligations imposed on the state by http://www.kenyalaw.org - Page 14/18