Luco Njagi & 21 others v Ministry of Health & 2 others [2015] eKLR walk-in patients such access is open discrimination contrary to Article 27 (5) of the Constitution, while the 22nd petitioner argues that the 3rd respondent, by systematically excluding elderly persons such as himself from medical cover arising from terminal disease including dialysis treatment has in effect discriminated against the elderly and marginalized people from its medical cover contrary to Articles 10 (2) (b), 21 (3) and 27 (4) of the Constitution. 83. Article 20 (5) (b) imposes a duty on the state to channel its resources in respect of social economic rights while giving priority to ensuring the widest possible enjoyment of the right and having regard to prevailing circumstances, including the vulnerability of particular groups or individuals. In this case, it is the respondents, in the face of limited resources such as functioning haemodialysis machines at Kenyatta National Hospital Renal Unit, who are best placed to make that all important and difficult judgment call with regard to whom, between chronically ill renal patients such as the petitioners and the in-patients with acute renal failure, it should give priority in the provision of dialysis. 84. In addition, one must bear in mind the possible consequences of the orders that the petitioners are seeking in this matter. They ask that they should be provided with life-saving dialysis treatment, and if it is not available at state institutions, the state should subsidize the provision of such services at private institutions. The sad but inescapable truth about our circumstances, however, is that there are countless others facing similarly dire medical situations which compete with those of the petitioners. Who is to say that it is those with renal disease, who require dialysis, rather than those with cancers, for instance, who require radiotherapy, who should be given priority in the provision of resources" If the court orders that those who need renal dialysis should be treated at the state’s expense in private institutions, why not also those with equally serious illness for whom access to health care in public institutions is limited" This, in my view, is not the province of the court. 85. The court acknowledges that the petitioners are in a difficult and no doubt life-threatening situation, and that the state could and perhaps can do a lot better than it has done with regard to the provision of health care and ensuring access to citizens, thus realizing its obligation with regard to the right to health. Given, however, that the failure by the petitioners to access dialysis treatment as and when they want it and at a cost that they can afford arises from limited resources as has emerged from the pleadings, I am unable to find a violation of the rights of the petitioners under Articles 26, 27, 28 and 43 of the Constitution, and I am therefore unable to issue any of the orders that they seek. 86. The ideal situation is one in which the petitioners and the many other patients with renal failure access medical dialysis at a frequency that suits their health needs, and at a cost that they can afford, and that they do not have to be subjected to long queues and waiting times. It would also be ideal if the 3rd respondent had the capacity to cover all the medical expenses for its contributors. But we do not live in an ideal world, and the court must allow the policy makers to make appropriate decisions. 87. The petitioners have referred the court to decisions from Argentina and Ecuador in which the court made decisions, some with timelines, within which to take certain medical decisions. I think these decisions can be distinguished from the present circumstances. The Argentinian case of Mariela Viceconte –vs- Ministry of Health and Social Welfare (supra) related to the manufacture of a vaccine, while the Ecuadorian case of Mendoza and Ors –vs- Ministry of Public Health (supra) related to the re-starting of a HIV programme that had been terminated. http://www.kenyalaw.org - Page 16/18