Federation of Kenya Employers v National Health Insurance Fund Management Board & 4 others; Saratuki & another (Interested Parties) (Petition E066 of 2022) [2022] KEELRC 4141 (KLR)
The bottom line
#Kenya's Employment Court escalated the FKE challenge to the NHIF (Amendment) Act, 2022 to a bench of at least three judges.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition and the application for conservatory orders dated April 21, 2022 raise substantial questions of law under Article 165(3)(b) and (d) of the Constitution
- 2.Whether the petition should be referred to the Chief Justice for assignment of an uneven number of judges, being not less than three, to hear and determine the matters
Key legal issues
#Whether the petition raises substantial questions of law under Article 165(3)(b) and (d) warranting empanelment of a bench of not less than three judges
The court certified the matter as raising substantial questions of law and referred it to the Chief Justice for empanelment of an uneven bench of not less than three judges.
The court applied Article 165(4) of the Constitution and section 21(2) of the ELRC Act, drawing on County Government of Meru v EACC, Okiya Omtatah Okoiti v Anne Waiguru and Republic v PSC Ex parte Havi. It found that the challenge to the constitutionality of the National Hospital Insurance Fund (Amendment) Act, 2022 - lack of public participation, right to property, legitimate expectation and fair administrative action - affects employers and employees across all 47 counties, transcends the particular case and bears significantly on the public interest. Although certification is an exception rather than the rule, the unique circumstances and important questions of law warranted an enlarged bench.
Legal principles established
#- Whether a matter raises a substantial question of law for certification under Article 165(4) is a discretionary determination made on a case-by-case basis, and the categories of relevant factors are not closed.
- A grant of a certificate under Article 165(4) is an exception rather than the rule, and a substantial question of law need not necessarily be novel or complex.
- The substantial question of law must arise strictly under Article 165(3)(b) and (d) and must be specifically set out in, or necessarily implied from, the pleadings.
Court orders
#- 1.The court certified that the matter raises a substantial question of law warranting reference to the Chief Justice under Article 165(4) of the Constitution
- 2.The matter was referred to the Hon. the Chief Justice for assignment of an uneven number of judges, being not less than three, to hear and determine the petition
- 3.Costs to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165(4) of the Constitution read with section 21(2) of the Employment and Labour Relations Court Act, 2011
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, I hereby certify that this matter raises a substantial question of law to warrant reference of the same to the Chief Justice as required under Article 165(4) of the Constitution.
Accordingly this matter is hereby referred to the Hon. The Chief Justice for the said purpose.
The costs will be in the cause. It is so ordered.
The grant of a certificate under Article 165(4) of the Constitution is an exception rather than the rule.
Issues in the judgment
#The judgment refers to the impugned statute inconsistently as the 'National Insurance Fund (Amendment) Act, 2022' and the 'National Hospital Insurance Fund (Amendment) Act, 2022' (assented 10th January, 2022).
The judgment records that respondents filed grounds of opposition without affidavit verification contrary to Rule 17(9), an irregularity noted but not acted upon.
Full names of the 1st, 2nd, 4th and 5th respondents are not given in the excerpt of the judgment supplied.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Federation of Kenya Employers v National Health Insurance Fund Management Board & 4 others; Saratuki & another (Interested Parties) (Petition E066 of 2022) [2022] KEELRC 4141 (KLR)", Case Analysis (2022). Petition dated April 21, 2022; Notice of Application dated May 26, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4141/eng@2022-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.