L.N. & 21 Others v. Ministry of Health, et al.

Petition No. 218 of 2013
Download Judgment: English

The Petitioners suffered from renal failure and required frequent renal dialysis treatments. Kenyatta National Hospital did not have an adequate number of machines to serve Petitioners’ needs, and would often choose to treat in-patients before Petitioners. Furthermore, the National Hospital Insurance Fund would not reimburse Petitioners for treatments sought at private hospitals.

Petitioners brought suit against the Government of Kenya, alleging that their inability to access mandatory treatment violated the Constitution of Kenya. Petitioners argued violations of Article 26(1), which provides that every person has a right to life, Article 43(1), which provides that every person has the right to health care services, Article 28, which provides that every person has inherent dignity that must be respected and protected, and Article 27(5), which provides that no person shall discriminate against another. Petitioners also contended that the denial of treatment violates the International Covenant on Economic, Social, and Cultural Rights, including the right to health.

The Ministry of Health argued that the right to health protected under Article 43 is subject to progressive realization under Article 21 of the Constitution. That is, the government has worked to realize economic and social rights, but it is constrained by a limited budget and the developing nature of the country. Kenyatta National Hospital submitted that the cost of each dialysis machine is significant, and that the demand for the machines continues to grow. The Hospital had committed to buying 3 to 5 new machines per year, but its resources were limited.

The National Hospital Insurance Fund (NHIF) argued that it could not cover the costs of patients seeking private medical care. The NHIF also encouraged the court to find for respondents to inhibit a floodgate of litigation from other patients who sought treatment in private hospitals.

The Court noted that based on Article 43 of the Constitution of Kenya, the state has the primary obligation to make sure that individuals receive the highest attainable standard of health. However, Article 20(5) provides that the state must only do so within its available resources. The state must show that the resources are not available to provide for the rights of every citizen.

Based on reasoning in Soobramooney v. Minister of Health Kwa Zulu Natal, a 1997 South African case concerning similar facts, the Court found that the issue was one of policy that was better left to the State. Invoking Article 20(5), the Court declined to make determinations about which patients should receive treatment or should be reimbursed for their private medical costs. The Court stated that the state had adequately shown that its resources were limited, and that it was doing its best to ensure that economic and social rights were enjoyed by the largest possible percentage of the population.


“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 that 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 to make a determination as to the best use of scarce resources in the health sector vis a vis other equally critical, sectors.” Para. 79.

“Article 20(5)(b) imposes a duty on the state to channel its resources in respect of social economic rights while giving priority to ensuring the widest possible enjoyment of the right and having regard to prevailing circumstances, including the vulnerability of particular groups or individuals. In this case, it is the respondents, in the face of limited resources such as functioning haemodialysis machines at Kenyatta National Hospital Renal Unit, who are best placed to make that all important and difficult judgment call with regard to whom, between chronically ill renal patients such as the petitioners and the in-patients with acute renal failure, it should give priority in the provision of dialysis.” Para. 83.

“The ideal situation is one in which the petitioners and the many other patients with renal failure access medical dialysis at a frequency that suits their health needs, and at a cost that they can afford, and that they do not have to be subjected to long queues and waiting times. It would also be ideal if the 3rd respondent [the National Hospital Insurance Fund] had the capacity to cover all the medical expenses for its contributors. But we do not live in an ideal world, and the court must allow the policy makers to make appropriate decisions.” Para. 86.