Advocates can commission affidavits of marriage for proof of marriage in accessing NHIF

A Summary of Justice Mativo’s judgement in Republic v National Hospital Insurance Fund Board of Management & Another Ex Parte Law Society of Kenya [2019] eKLR

The Law Society of Kenya (‘LSK’) filed an application seeking for:-

1. An order of Certiorari to quash the directive issued by the National Hospital Insurance Fund (‘NHIF’) Board of Management dated 22nd February, 2018 disregarding affidavits of marriage commissioned by Advocates; and
2. An order of Mandamus compelling the NHIF Board of Management (BoM) to accept affidavits of marriage commissioned by Advocates.

The LSK contested that:-

1. The directive issued by NHIF’s BoM violated Article 47 of the Constitution of Kenya as read with Sections 7(2) (a) (v) (c) (d) (e ) (f) (h) (k) (m) (n) of the Fair Administrative Action Act;
2. The impugned decision offends law and logic;
3. Sections 2(1) (3), 4(1), 8 and 12 of the Oaths and Statutory Declarations Acts grants all Commissioners for Oaths including qualified Advocates the power to administer oaths throughout the country without exceptions;
4. The impugned directive was tainted with bias because the NHIF’s BoM had chosen to selectively approve affidavits commissioned by a class of Commissioners of Oaths to the exclusion of others and the LSK was not consulted before issuing the impugned decision contrary to the principle of public participation enshrined in Article 10 of the Constitution;
5. The impugned directive failed to take into account relevant considerations i.e. members of the LSK had not conferred upon themselves the powers to commission Affidavits but such powers were conferred by statute upon appointment by the Chief Justice;
6. The NHIF BoM could not arrogate themselves the powers to amend statute to read according to its needs and desires and that Advocates, just like other Commissioners for Oaths make a living from exercising their powers as Commissioners for Oaths hence they are equally entitled to earn fees as provided by Section 4(2) of the Oaths and Statutory Declarations Act;
7. The directive was made in bad faith, was unfair and was made in abuse of the discretionary powers of the NHIF BoM and was an impediment to access to justice to citizens contrary to Article 48 of the Constitution because it imposes an unnecessary burden upon Magistrates who have a duty to ensure delivery of justice in court rooms; and
8. The directive was issued contrary to the rules of natural justice.

The NHIF BoM opposed the application on the grounds that it performs its mandate in a uniform and transparent manner in accordance with the laid down lawful requirements and that the process of identification is necessary to avoid fraud or extending benefits to unqualified persons leading to loss of public funds.

Judge Mativo in deciding the matter found that the directive was arrived at arbitrarily because the LSK was not granted reasonable opportunity to make representations.

The learned Judge held that an administrator must clearly state, in plain and straight – forward language, what the administrative action is that will be taken so that the person affected can understand what is likely to happen and respond adequately to the action.

The Honourable Judge also found that the NHIF BoM had acted outside their legal mandate because a proper construction of the impugned decision and the NHIF Act as read together with the clear provisions of the Oaths and Statutory Declarations Act show that the impugned decision is tainted with illegality and could not be read in a manner consistent with the enabling statute.

Judge Mativo also found that the impugned decision lacked legal basis, offended the law, defies logic and fell outside the range of possible justifiable outcomes a decision maker can arrive at and hence was unreasonable.

He also found that the impugned decision was in breach of the rules of natural justice i.e. impartiality and fair hearing.

The LSK was neither notified about the intended decision nor afforded an opportunity to be heard before making the decision, yet the decision directly affects its members.

The Honourable Judge also found that the directive was issued in bad faith because a decision maker must not seek to achieve a purpose other than the purpose for which the power to make the decision has been granted by Parliament.

Bad faith, the Honourable Judge explained that, could be derived from deliberate breach of due process or where the decision maker was influenced by irrelevant considerations.

Judge Mativo allowed the application by the LSK and granted an order of Certiorari to quash the directive issued by NHIF BoM dated 22nd February, 2018 disregarding marriage affidavits commissioned by Advocates and an order of Mandamus compelling the NHIF BoM to accept affidavits of marriage commissioned by Advocates.

Dr. Benjamin Musau

I am a Kenyan Advocate and the Managing Partner of B M Musau & Co., Advocates, a position I have held since 1999. My work encompasses regulatory reforms, reduction of administrative burdens, the structure of business entities, joint ventures, acquisitions, banking, foreign investment and other general corporate areas