Luco Njagi & 21 others v Ministry of Health & 2 others [2015] eKLR 49. NHIF has filed an affidavit sworn by its Chief Executive Officer, Simeon Ole Kirgotty, on 3rd June 2013 as well as submissions dated 17th September 2013. Oral submissions were made on its behalf by its Learned Counsel, Mr. Kashindi. In his affidavit, Mr. Kirgotty avers that the NHIF model is anchored on the social principle of solidarity whereby the rich support the poor, the healthy support the sick and the young support the old; and that in the provision of benefits to contributors, their spouses and dependants, it gives priority to ensuring the widest possible enjoyment of the right to health and healthcare services having regard to prevailing circumstances, including budgetary limitations, increasing cost of healthcare and scarce resources. 50. According to the 3rd respondent, it currently has an active membership of 3.8 million members in formal employment who contribute to the fund on a graduated scale, depending on their monthly salary, starting from Kshs 30/=, with the highest contributing Kshs 320/=. Self employed members contribute Kshs 160/= as provided in Legal Notice No 185 of 2003. It therefore provides health financing based on contributions received from its members. 51. Mr. Kirgotty avers that recent analysis by the International Finance Corporation and Deloitte Consulting indicate that its rates are too low considering medical inflation and consumer price index and in order to provide better benefits and coverage that relates to the current medical costs, they ought to be increased. The 3rd respondent contends that pursuant to Legal Notice No 107 and 108 of 2010, the rates were revised with an intention to enhance collections so as to introduce comprehensive healthcare for members, but that initiatives to implement the new revised rates have been curtailed by unending litigation from stakeholders. 52. Mr Kingotty names some of the pending litigation, against NHIF, about seven cases in all, as including Industrial Court Cause No 887 of 2010, Central Organization of Trade Unions (K) –vs- NHIF seeking to restrain the implementation of the new rates; Misc App No 306 of 2010, Central Organization of Trade Unions –vs- NHIF in which an order was issued restraining the implementation of the new rates; and J.R Misc App No 262 of 2010, Samuel Kerosi Ondieki –vs- The Attorney General and NHIF in which the applicant seeks an order to declare Legal Notice No 108 of 2010 unconstitutional. 53. It is its submission that having been restrained from implementing the new rates, it continues to do the best it can with limited resources against an ever increasing medical inflation and consumer pricing index, while its current contribution rates have remained unchanged since 1990. 54. The 3rd respondent avers with regard to payment of benefits that section 27 of the NHIF Act requires it, in consultation with the Minister for Health, to make regulations prescribing the amount of benefits and the period within which such benefits shall be payable which are in form of medical packages enjoyed by members, their spouses, children and dependants. It states that the law further requires the benefits to be made to “declared hospitals” only, meaning hospitals that are accredited by it in accordance with its Accreditation Policy and Accreditation Manual for Health Facilities; and further, that the NHIF Act provides that the maximum rate of benefit payable in respect of hospital and medical treatment is to a contributor paying standard, special or voluntary contribution. 55. The 3rd respondent submits further that since it operates as an insurance fund, paying amounts in excess of those already considered and approved by the Board, based on actuarial advice would, in fact, jeopardize and compromise the integrity of the fund and it may ultimately result in NHIIF not being able to meet its mandate. It is also its contention that the petitioners have not http://www.kenyalaw.org - Page 10/18