The Social Health Authority building in Nairobi.
The Labour Relations Court has declined a request by the Social Health Authority (SHA) to review and halt implementation of a verdict that quashed plans to reserve senior middle-level management job positions for officers of the defunct National Hospital Insurance Fund (NHIF).
The court dismissed the application after finding that SHA, together with the Ministry of Health and the Attorney-General, failed to provide reasons that would warrant a review of the contested verdict or issuance of a stay of execution.
Among the reasons provided was that the contested ruling had caused uncertainty regarding the fate of former NHIF staff who had already applied for various vacant positions.
Additionally, their absorption into SHA was said to be necessary to ensure a smooth transition and operationalisation of the corporation.
According to SHA Chief Executive Officer Dr. Mercy Mwangangi, NHIF employees were anxious about their employment.
However, Justice Byram Ongaya said SHA failed to establish any valid reason for a review of the court judgment, as they did not point out any error in the court’s findings.
“The applicant has not shown an error apparent on record, fresh evidence or manifest injustice that would justify the review as applied for. The applicant appears to urge that it is dissatisfied by the ruling and final orders given on May 29, 2025. As urged by the petitioner, such dissatisfaction does not justify a review but could entitle the applicant to appeal,” said Justice Ongaya.
The application concerned the court's decision to prohibit the SHA Board of Directors from proceeding with the planned recruitment of staff to positions such as Quality Assurance Officers, County Coordinators, Directors, Deputy Directors, Finance Officers and Accountants—among other vacancies—which had been exclusively reserved for former NHIF staff.
Judge Ongaya issued the order following a petition by Said Omar Abdille who challenged the recruitment on the grounds that it was unlawful and discriminatory.
The origin of the dispute was SHA’s decision to treat NHIF staff as internal candidates.
Mr Abdille argued that since NHIF had been wound up through the Social Health Insurance Act 2023, the SHA Board of Directors was mandated to recruit staff afresh and not automatically absorb NHIF employees or give them preferential internal recruitment.
The judge ruled in favour of the petitioner and found it was wrong for SHA to advertise the jobs and restrict applications to NHIF employees.
But while asking for a review and suspension of the judgment, SHA, through Principal Counsel Beatrice Akuno, argued that the court had failed to consider that some positions had already been filled and the successful candidates had assumed office at a time when no order was in place stopping the recruitment.
“The ruling has far-reaching implications on innocent third parties who successfully applied and were recruited to the positions of Directors and Deputy Directors in SHA, and on other shortlisted applicants for the advertised positions. The said parties were not given an opportunity to be heard or their interests considered by the court, thus being condemned unheard, contrary to Article 50 of the Constitution of Kenya,” said Dr Mwangangi in an affidavit.
She added that the judgment also failed to consider two previous rulings of the same court on the same issues relating to the transition and recruitment of staff to SHA.
Dr Mwangangi stated that SHA was in a quandary, as in one of the previous rulings the court found that it was within SHA’s statutory mandate to undertake recruitment of its staff, while in another ruling the court had suspended interviews or appointments to vacant positions.
In the present case, the court compelled SHA to advertise all vacancies through an open, fair, competitive, and transparent process in accordance with the law—devoid of restrictions and limitations.
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She added that the ruling had placed SHA in a difficult position operationally and managerially, and that the corporation required the services of former NHIF employees.
“It is prudent and in the interests of justice that this suit, together with the two others, be consolidated, the contradictory orders harmonised and the staff who had already been recruited and deployed be deemed to have been lawfully appointed. In addition, the consolidated case should be heard by a single judge,” said Dr Mwangangi.
However, Justice Ongaya said consolidation of the cases was not possible in circumstances where the current petition had already been conclusively determined.
“The instant petition was determined by the ruling delivered on May 29, 2025. The petition having been conclusively determined, it appears to the court that it would be misconceived for the applicant to seek consolidation with pending cases. Nothing is left of the instant petition to justify consolidation with the matters said to be pending before the court,” said Justice Ongaya.
He added that there were no conflicting or contradictory orders from the court regarding SHA recruitment. He said the orders in the instant case reinforced previous ones.
He also found that no staff of the defunct NHIF had been prejudiced within the implementation of the transitional provisions.
The judge said the correct position was that NHIF employees were entitled to serve as temporary staff of SHA until their employment status is determined through a lawful transition process.
“All staff of the defunct NHIF remain in the service of the applicant until the applicant undertakes and concludes the said competitive recruitment process.
"Similarly, service delivery for the applicant will not be prejudiced during the transition because all staff of the defunct NHIF are available to serve until competitively recruited and appointed staff are in place. It should otherwise be obvious that the staff purportedly recruited pursuant to the internal advertisement cannot rely on the illegal and unconstitutional process to justify the illegitimate recruitment and appointments,” said the judge.
He stated that any difficulty arising from the ruling could be addressed through an appropriate application for variation.
