Luco Njagi & 21 others v Ministry of Health & 2 others [2015] eKLR sections 26 and 27 in regard to access to housing, health care, food, water and social security are dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources. Given this lack of resources and the significant demands on them that have already been referred to, an unqualified obligation to meet these needs would not presently be capable of being fulfilled. This is the context within which section 27(3) must be construed.” 79. In the case now before me, the petitioners all suffer from chronic renal failure, and as they aver, need dialysis two or three times a week. They ask the court to intervene and ask that their treatment be subsidized by the state at private institutions. In making this demand, they ask the court to interfere with matters of policy which, as the Constitution enjoins at Article 20(5), should be left to the state, as the court is not suited, and does not have the requisite information, to enable it make a determination as to the best use of scarce resources in the health sector vis a vis other equally critical, sectors. I agree in this regard with the sentiments expressed by the court in Soobramoney (supra) when it stated at paragraph 29 that: “…A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters. [30] Although the problem of scarce resources is particularly acute in South Africa this is not a peculiarly South African problem. It is a problem which hospital administrators and doctors have had to confront in other parts of the world, and in which they have had to take similar decisions. In his judgment in this case Combrinck J refers to decisions of the English courts in which it has been held to be undesirable for a court to make an order as to how scarce medical resources should be applied, and to the danger of making any order that the resources be used for a particular patient, which might have the effect of denying those resources to other patients to whom they might more advantageously be devoted.” 80. The Court went on to state as follows: “The dilemma confronting health authorities faced with such cases was described by Sir Thomas Bingham MR in a passage cited by Combrinck J from the judgment in R v Cambridge Health Authority, ex parte B: “I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make.” 81. The sentiments expressed above sound eerily familiar, seeming to describe the situation that Kenya’s health system is confronted with, and which gives rise to the petitioners’ claim now before me. 82. I believe the sentiments of the court set out above also respond to the petitioners’ claim of discrimination with regard to the availability of dialysis treatment. They have argued that allowing the admitted patients at the Kenyatta National Hospital access to dialysis treatment and denying http://www.kenyalaw.org - Page 15/18