Luco Njagi & 21 others v Ministry of Health & 2 others [2015] eKLR Rights, including the right to health, but whatever arrangements they choose, they must be effective. 23. The petitioners ask the court to disregard the decision of the South African Constitutional Court in the case of Soobramoney –vs- Minister of Health Kwa Zulu Natal 1997 (12) BCLR 1696 with regard to the test the court should use in determining the state’s obligation on social economic rights. They ask the court to be guided by the decision in Minister of Health –vs- Treatment Action Campaign (TAC) (2002) 5 SA 721 (CC) as the reasoning in that case will promote the realization of the right to health in Kenya. They have also cited a decision from Argentine, Mariela Viceconte –vs- Ministry of Health and Social Welfare Case No 31.777/96, in which the court set a deadline for the state to meet its obligation to manufacture a vaccine for a haemorrhagic fever, and submit that the court should be guided by the said decision in this matter. The petitioners have also referred the court to the decision from Ecuador in the case of Mendoza and Ors –vs- Ministry of Public Health Resn No 0749-2003-RA (28 Jan 2004). They submit that the court in that case held that the Ministry of Health had failed in its obligations to protect the petitioners’ right to health, which forms part of the right to life, by suspending a HIV treatment programme. 24. They urge the court to interpret the provisions of Article 43 (1) of the Constitution in accordance with the provisions of Article 259 and submitted that the orders sought in this petition will, among other things, promote the purpose, values and principles in the Constitution. 25. While agreeing with the submissions made on behalf of the 1st- 21st petitioners, the 22nd petitioner specifically alleges discrimination against the elderly in his claim against the 3rd respondent. He was, at the time of filing the petition, 81 years of age. 26. Due to the congestion at Kenyatta Hospital which has subsidized charges for dialysis of Kshs 5,000/= per session, the 22nd petitioner contend that he is compelled to pay kshs 108,000 for the sessions at the Nairobi Hospital, as well as Kshs 50,000 for doctors’ charges and drugs. He argues that the 3rd respondent should pay for the dialysis sessions as well as the doctors’ fees and drugs but the respondent only pays for bed charges in the hospital in the region of Ksh 1,400/= per night. He argues that he finds it increasingly burdensome and difficult to pay for the medical charges as at 81 years old, he is now old and effectively out of the job market. 27. The 22nd petitioner submits that the 3rd respondent’s failure to pay for his life threatening dialysis treatment is a breach of his right to health care services and constitutes a denial of emergency medical treatment which is a violation of Article 43 of the Constitution. It is his case further that the 3rd respondent’s systematic exclusion of elderly persons like himself from medical cover arising from terminal diseases is to discriminate against the elderly and marginalized people contrary to Articles 10 (2) (b), 21 (3) and 27 (4) of the Constitution. 28. He argues that NHIF, in carrying out its statutory mandate, is bound by the Constitution and, in particular, by Articles 10 (2) (b), 20 (5) (b), 21 (3), 27 (4), 28, 43 (2) and 47 of the Constitution. It is also his contention that the failure by NHIF to cover the cost of his dialysis and related treatment has in effect breached his dignity contrary to Article 28 of the Constitution. 29. The petitioner submits that the 3rd respondent is tasked under Section 5 of the National Hospital Insurance Fund Act with the broad mandate of regulating the payment of benefits under the Act. It therefore has the statutory power to cover the payment of dialysis treatment which it has failed to do, and that such failure amounts to contravention of Articles 43 (2) and 47 of the Constitution. http://www.kenyalaw.org - Page 6/18