Lawyers have opposed a directive by the National Health Insurance Fund to disregard affidavits commissioned by advocates as proof of marriage for spouses to be covered in the scheme.
They have filed a petition at the High Court, saying that by only accepting affidavits from magistrates, the directive is introducing unnecessary costs and difficulties to the public.
The Law Society of Kenya has sued the NHIF board and its chief executive officer, claiming the move impedes access to justice and denies advocates a right to livelihood.
Through lawyer Paul Ogendi, the lawyers say the directive is selective and biased and had not been subjected to public participation.
“Advocates just like other commissioners of oath make a living from exercising their powers as commissioners of oath and therefore are equally entitled to obtain fees from the same as provided for in the Oaths and Statutory declaration Act,” said Mr Ogendi.
He accused the NHIF of breaching rules of natural justice by failing to give lawyers a fair hearing before issuing the directive two months ago.
Advocates who commission affidavits either do it freely or charge between Sh500 and Sh5,000 while those by magistrates are usually charged at a standard rate of Sh75 and the amount is paid to a bank. The affidavits are usually stamped at registries in courts and then taken to magistrates for signing.
While introducing the changes in February, NHIF said it was seeking to ensure men do not present girlfriends, mistresses or even relatives in the place of their spouses for the insurance coverage.
According to NHIF’s chief executive Geoffrey Mwangi, such an affidavit is not needed during registration but only when one wants to change the list of beneficiaries.
In the documents filed in court, LSK alleged that the country does not have enough magistrates to cover all applications.
LSK also alleges that the requirement imposes an unnecessary burden upon magistrates who already have a duty to ensure that they deliver justice in the courtroom.
“The directive is unfair and an abuse of NHIF board’s discretionary powers as well as an impediment to justice,” said Mr Ogendi.
LSK now wants the directive quashed and that NHIF be compelled to accept documents commissioned by advocates as lawful.