Luco Njagi & 21 others v Ministry of Health & 2 others [2015] eKLR “In applying any right under Article 43, if the State claims that it does not have the resources to implement the right, a court, tribunal or other authority shall be guided by the following principlesa. It is the responsibility of the State to show that the resources are not available; b. In allocating resources, the State shall give priority to ensuring the widest possible enjoyment of the right or fundamental freedom having regard to prevailing circumstances, including the vulnerability of particular groups or individuals; and c. The court, tribunal or other authority may not interfere with a decision by a State organ concerning the allocation of available resources, solely on the basis that it would have reached a different conclusion. 67. It is thus undisputed that the state has the primary obligation to ensure that the petitioners and other citizens enjoy the highest attainable standard of health. The state has a duty to make the necessary budgetary allocation, as well as to take the necessary legislative and policy measures, to ensure that the right to health is realized. 68. The petitioners argue that they are not able to realize their right to health as they do not have access to essential haemodialysis at the Kenyatta National Hospital as it is ill-equipped to cater for all the patients who need dialysis. They assert that the failure by the respondents to have sufficient machines in operation or to provide dialysis at a low cost, or in the case of the 3rd respondent, to include the cost of dialysis in the amount it meets in private institutions, have resulted in a violation of their right to health. They want an order to compel the respondents to meet the cost of access to such treatment at private institutions. An order is also sought by the 22nd petitioner to compel the 3rd respondent to meet all his medical costs for dialysis, including doctors’ charges, from the health insurance fund. The respondents contend that they have done the best they can with the available resources, and are still doing their best to improve the situation, and have not therefore violated the petitioners’ right to health. 69. The question that the court must determine is whether, in the circumstances of this case, there has been a violation of the petitioners’ right to health, and whether it can grant the orders that they seek. 70. In explaining the steps that it has taken to meet its obligations with regard to the petitioners’ right to health, the state has averred that dialysis is highly resource intensive, particularly on consumables, and that it requires, inter alia, enormous labour and specially trained human resources with specific expertise in the area to man the Renal Unit twenty-four hours every day. It states that the cost of a single dialysis machine is about Kshs 1.6 million while the consumables per patient per session costs about Kshs 4,500/=. The cost of dialysis in private hospitals is Kshs 9,000/=. 71. The respondents submit that the government contributes 30% of the healthcare budget, while the citizen meets the rest. The respondents have also made averments to the effect that they are trying to address the current problems with regard to renal dialysis by, among other things, establishing a kidney transplant programme at the Renal Unit, and committing to buying additional machines for the Renal Unit at the rate of 3 to 5 new dialysis machines each year. 72. The 3rd respondent has submitted that it has made attempts to increase its rates so that it can raise the level of benefits available, but that its attempts to increase the level of contribution by http://www.kenyalaw.org - Page 13/18