Luco Njagi & 21 others v Ministry of Health & 2 others [2015] eKLR income of more than Kshs1000/. The Case for the Petitioners 16. The petitioners’ case is set out in the two petitions and the affidavits in support, the first sworn by the 1st petitioner, Mr. L N on behalf of the 1st- 21st petitioner, and the second sworn by the 22nd petitioner, Mr. F N. Their respective cases and submissions were presented by their Counsel, Mr. Tanui and Mr. Kabaru. 17. The petitioners’ aver that they are all suffering from renal failure, and therefore require dialysis at least three times a week. Without dialysis, a person suffering from renal failure often dies. They state further that there are presently over 300 patients who rely on the dialysis machines at Kenyatta National Hospital which previously had 20 dialysis machines. However, only 6 are currently fully functioning as the rest have broken down and so the hospital is ill-equipped to cater for patients who need dialysis. As a result, few patients access the working dialysis machines as the hospital gives preference to in-patients. Walk-in patients, who include the petitioners, are often unable to access treatment at the hospital. 18. Aside from the unavailability of renal dialysis machines, the petitioners are also aggrieved by the cost of dialysis treatment which they term as prohibitive. They aver that Kenyatta National Hospital charges Kshs 5,050/= per visit, with NHIF meeting only Kshs 2,400.00 of this amount. They state therefore that as many of them are low income earners while others are unemployed, when they are unable to access the facilities at Kenyatta National Hospital, they must raise money to pay private medical service providers who charge Kshs 10,000.00 per session, which NHIF has declined to pay for them. It is their case that they cannot afford to pay the said amount at the private hospitals. 19. The petitioners contend that the 1st respondent has the primary obligation to protect and promote their right to health for such obligations are defined and guaranteed by international customary law, international human rights treaties, and the Constitution of Kenya. They contend further that the 1st respondent has the obligation to adopt appropriate legislative, administrative, budgetary, promotional and other measures to fully realize their right to health. They submit that it must, for instance, adopt a national health policy or a national health plan covering the public and private sectors that will ensure access to dialysis. 20. The petitioners argue that continually denying them dialysis treatment well knowing that the result is death is a blatant violation of Article 26 of the Constitution. They also argue that allowing inpatients at the Kenyatta National Hospital access to dialysis treatment and denying walk in patients such access is open discrimination contrary to Article 27 (5) of the Constitution. They also allege violation of Article 28 on the right to human dignity, contending that denial of dialysis treatment to a kidney failure patient is subjecting the person to inhumane treatment. 21. The petitioners submit that they are entitled to adequate health care services to the highest attainable standards and it is their contention therefore that if the 1st and 2nd respondents do not have adequate resources to buy renal dialysis equipment, they should make appropriate financial arrangements to pay for and/or subsidize payment for treatment at private medical institutions where the dialysis machines are easily available. 22. The petitioners rely on General Comment No. 9 of the United Nations Committee on Economic, Social and Cultural Rights which they submit emphasizes that it is up to states how they give effect to the rights contained in the International Covenant on Economic, Social and Cultural http://www.kenyalaw.org - Page 5/18