[2023] KEHC 25144 (KLR)

GMMA (Minor suing through and next of friend TSA) v Crystal Cottage Hospital & Medical Clinic Limited t/a Crystal Hospital & Medical Clinic & another; Medical Practitioners and Dentists Council (Interested Party) (Constitutional Petition E031 of 2022) [2023] KEHC 25144 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25144 (KLR)

Republic of Kenya

In the High Court at Mombasa

Constitutional Petition E031 of 2022

OA Sewe, J

November 9, 2023

IN THE MATTER OF: THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: ARTICLES 2, 19(2), 20,46(1) (c), 48 AND 50 (1) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF: ARTICLES 22(1), (2), 23(1), (3)(a),(e), 258 (1) AND 259(1)(b) OF THE CONSTITUTION, 2010 AND IN THE MATTER OF: REGULATION OF MEDICAL BILLS AND ITS CONSTITUTIONALITY VIS A VIS THE PROVISION OF ARTICLES 46(1) (c) OF THE CONSTITUTION OF KENYA

Between

GMMA (Minor suing through and next of friend TSA)

Petitioner

and

Crystal Cottage Hospital & Medical Clinic Limited t/a Crystal Hospital & Medical Clinic

1st Respondent

National Hospital Insurance Fund Board

2nd Respondent

and

The Medical Practitioners And Dentists Council

Interested Party

Judgment

1. The petitioner, GMMA, is a minor aged 3 years. The Petition was therefore instituted on her behalf by her father and next friend, TSA against the two respondents, Crystal Cottage Hospital & Medical Clinic Limited T/A Crystal Cottage Hospital & Medical Clinic (the 1st respondent) and the National Hospital Insurance Fund Board (the 2nd respondent). It was averred the petitioner started vomiting on the 11th April 2022 at around 1600 hours; and that she was taken to Trans-Nzoia County Hospital where she was given an injection to stop the vomiting. She was thereafter tested for malaria but the test was negative. The minor was taken back home and put on some medication but the vomiting persisted.

2. Hence, on the 12th April 2022, the petitioner was taken to the 1st respondent’s clinic where, again tests were conducted which ruled out malaria. The doctor concerned formed the opinion that the minor could be suffering from a viral infection around the respiratory region and the minor was treated accordingly. The guardian paid the respondent’s charges and took the minor home. He averred further that, later at about 1330 hours on the 12th April 2022, the petitioner started shaking violently and was rushed back to the 1st respondent’s facility where she was admitted from 12th April 2022 to 14th April 2022. Upon discharge, the minor’s guardian was required to pay a bill of Kshs. 26,245/=, which he disputed, contending that the bill was exorbitant. He contended that the minor was in the facility for only one day and a half; and that in spite of his protestations he was prevailed upon to pay the bill. He therefore asserted that, by overcharging for its services, the 1st respondent violated Article 46 of the Constitution.

3. Accordingly, the petitioner prayed for the following reliefs against the respondents:(a)A declaration that Rule 4 of the Medical Practitioners and Dentists (Professional Fees) Rules, 2016 is unconstitutional in so far as it is inconsistent with Article 46 and Article 50 of the Constitution.(b)A declaration that the respondents have infringed the petitioner’s right as provided for under Article 46 of the Constitution.(c)An order of compensation to be assessed by the Court pursuant to grant of Prayers [a] and [b] above.(d)The costs of the Petition.(e)Any other order the Court may deem fit.

4. The application was premised on the affidavit of the petitioner’s guardian, sworn at Mombasa on the 25th July 2022. He reiterated the factual basis of the Petition as set out in the Petition. At paragraph 10 of the affidavit, the petitioner’s guardian stated that, in his opinion, the minor’s medical bill was inflated and exorbitant, given that the minor was at the facility for only one day and a half. He annexed to his affidavit copies of the minor’s Certificate of Birth, receipts and treatment notes as well as the contentious bill and a receipt evidencing payment. The petitioner also relied on the Discharge Summary, among other documents in support of the Petition.

5. At paragraphs 12 to 32 of the Supporting Affidavit, the petitioner set out the provisions of the Constitution deemed relevant to the Petition and how those provisions were infringed by the two respondents. Thus, at paragraph 28, the petitioner averred that the issue of medical bills being inflated by medical facilities has been so rampant that the Kenyan populace have had no option but to resort to fundraising efforts to settle some of the bills. The petitioner also relied on the provisions of the United Nations Guidelines for Consumer Protection (UNGCP), particularly in connection with protection of the economic interests of consumers.

6. The petitioner also took issue with the fact that, as matters stand currently, the 2nd respondent caters for medical bills of civil servants and yet only offers bed rebates in private hospitals for other members. Accordingly, the affiant averred at paragraph 37 of his affidavit that it is in the public interest that a decision be made on the issues raised herein so as to create an avenue where hospital bills can be contested, when necessary, and a fair determination made thereon.

7. In response to the Petition, the 1st respondent relied on the affidavit of one of its directors, Elizabeth W. Usagi, sworn on 12th September 2022. Thus, the 1st respondent averred that the Petition is not only poorly crafted and drawn, but is also frivolous and devoid of any issue worthy of constitutional consideration. The 1st respondent also accused the petitioner of material non-disclosure and misrepresentation of facts and law. Thus, at paragraph 9 of the affidavit, the 1st respondent confirmed that the child was taken to its facility and that two tests were conducted; and that one of them confirmed that the child was indeed suffering from malaria. At paragraph 10, it was averred that the petitioner was duly treated and discharged and a letter to that effect given to the guardian.

8. The 1st respondent further deposed that, at no time did the petitioner’s guardian protest or bring to its attention any complaint about the bill. It added that the amount payable, in cases of admission, is not dependent on the duration of the patient’s stay at the hospital, but rather by the services and nature of the treatment rendered to the patient. Thus, at paragraph 14, the 1st respondent averred that the bill was based on statutory charges issued and gazetted by the Cabinet Secretary for Health and the Medical Practitioners and Dentists (Professional Fees) Rules 2016, Legal Notice No. 13 of 2016. The 1st defendant added that, in any event, the petitioner did not itemize what she alleges to have been inflated or what, in particular, she contests in the impugned bill.

9. Further to the foregoing, the 1st respondent deposed that, at its very core, the Petition disputes payment of a hospital bill on the ground that it is exorbitant; which is not a constitutional issue. It therefore posited that the dispute ought to have been presented before another forum for settlement. Thus, the 1st respondent prayed for the dismissal of the Petition with costs.

10. In similar fashion, the 2nd respondent opposed the Petition vide the Replying Affidavit sworn on its behalf by Faith Kittony on 3rd March 2023. It was averred on behalf of the 2nd respondent that its mandate is to manage the National Health Insurance Fund (NHIF) with a view of providing affordable, reliable, and accessible medical insurance for all its members and their declared dependents. At paragraph 6 of the 2nd respondent’s affidavit, the 2nd respondent averred that it entered into a Category C contract with the 1st respondent for the provision of medical care; and that it was expressly agreed that:(a)The 1st respondent would inform the Fund’s members seeking its services of all the charges not covered or only partially covered by the Fund.(b)The 1st respondent would ensure that members consent beforehand to pay the portion of the medical bill not covered by the Fund.(c)For in-patient package (non-comprehensive), the 2nd respondent would only pay the 1st respondent a rebate of Kshs. 1,800/= per day.

11. Thus, it was the assertion of the 2nd respondent that the petitioner was eligible for medical care under Category C facilities of the National Scheme; namely, private hospitals with a pre-determined rate. Hence, in this instance, the petitioner was admitted for 2 days at the 1st respondent’s facility; and the Fund paid the 1st respondent Kshs. 3,600/= as the rebate due in accordance with Schedule 2. 3 of their contract. The petitioner’s guardian was therefore expected to pay the difference directly or by means of private medical insurance. The 2nd respondent further explained that since Category C facilities charge higher rates than government hospitals; and therefore not all their medical bills are covered by the Fund.

12. The Petition was urged by way of written submissions, pursuant to the directions given herein on 7th March 2023. The petitioner complied on 22nd March 2023 and raised the following issues for determination:(a)Whether the acts of the respondents’ amount to an infringement of the rights of the petitioner as provided for under Article 46 of the Constitution.(b)What measures ought to be put in place, if any, to protect the rights of health service consumers.

13. With reference to the 1st respondent’s affidavit, the petitioner submitted that it confirms the minor was treated at the 1st respondent’s facility; and that the bill was not explicit enough to enable the minor’s guardian know for what services or goods he was being charged. Thus, the petitioner submitted that a breakdown of costs of the services ought to have been given to enable her guardian make an informed decision on the applicable fees. As for the 2nd respondent, the petitioner was unhappy that it settled only a small portion of the bill despite the fact it routinely pays entire bills for individuals in the civil service whenever they seek services in the same Category C facilities.

14. In respect of the 2nd issue, the petitioner argued in favour of a forum where the disputes as to billing by medical service providers can be heard and determined. In this regard, reference was made to Rule 4 of the Medical Practitioners and Dentists (Professional Fees) Rules and the fact that the said framework is limited to disputes over professional fees and does not extend to the thorny issue of exorbitant costs of medical services. Thus, the petitioner urged that the Petition be allowed and the orders prayed for granted.

15. On its part, the 1st respondent relied on its written submissions dated 12th April 2023 and reiterated its stance that at no time did the petitioner complain about the subject bill. It added that, although the petitioner was furnished with an itemized bill per Annexure “TSA 4” the petitioner did not point out any item which he deems to be exaggerated. Accordingly, the petitioner proposed the following issues for determination by the Court:(a)Jurisdiction and the laws applicable.(b)Whether the Petition meets the constitutional threshold.(c)Whether the 1st respondent has breached Article 46 of the Constitution.(d)Whether Article 50 has been breached by denying the petitioner a forum to challenge the bill.(e)Whether the petitioner is entitled to compensation.(f)Who should bear the costs.

16. The 1st respondent conceded that this Court has the jurisdiction to hear and determine this Petition and to this end, it relied on the provisions of Articles 2(1), 22(1), 23(1) and 165(3) of the Constitution. It however submitted that the United Nations Guidelines for Consumer Protection do not form part of the Laws of Kenya and are therefore inapplicable herein. The 1st respondent further submitted that the Petition does not meet the constitutional threshold in terms of specificity. It relied on Anarita Karimi Njeru v Republic [1979] eKLR, Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR and Mohamed Abduba Dida v Debate Media Limited & Another [2018] eKLR, among other authorities, to advance the argument that a person who alleges a violation of his constitutional rights and freedoms must plead such violations with a reasonable degree of precision to warrant consideration as such; which, in its view, the petitioner failed to do.

17. Further to the foregoing, the 1st respondent posited that the issues raised in this Petition fall squarely under the realm of contract law as opposed to violation of either Article 46 or 50 of the Constitution. In this regard, the 1st respondent cited High Court Petition No. 187 of 2012: Hon. Uhuru Kenyatta v The Nairobi Star Limited for the proposition that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be invoked at all. Accordingly, the Court was urged to find that the instant Petition is premature; granted that the petitioner did not exhaust the alternation remedies available to him before approaching the Court by way of Petition.

18. Thus, the 1st respondent was of the posturing that, the petitioner, having failed to prove any of the allegations of infringement to the requisite standard, is not entitled to any of the reliefs sought. Thus, the 1st respondent placed reliance on Joshua Kiprop Kisorio v Safaricom PLC & 4 Others, Abdinajib Adan Muhumed (Interested Party) [2021] eKLR and Christian Juma Wabwire v Attorney General [2019] eKLR in urging for the dismissal of the Petition with costs.

19. On its part, the 2nd respondent filed written submissions dated 18th April 2023 and thereby proposed the following three issues for determination:(a)Whether the petitioner’s rights as provided for under Article 46 of the Constitution of Kenya were infringed by the 2nd respondent.(b)Whether Rule 4 of the Medical Practitioners and Dentists (Professional Fees) Rules, 2016 is unconstitutional for being inconsistent with Article 46 and 50 of the Constitution.(c)Whether the petitioner is entitled to the reliefs sought in the Petition.

20. The 2nd respondent submitted on the burden of proof, as provided for in Sections 107, 108 and 109 of the Evidence Act, Chapter 80 of the Laws of Kenya. To buttress its submissions, the 2nd respondent relied on the cases of Harrison Njuguna v Inspector General National Police Service & 2 Others [2021] eKLR, Kiambu County Tenants Welfare Association v Attorney General & Another [2017] eKLR, Christian Juma Wabwire v Attorney General [2019] eKLR. Its basic argument was that a person who desires judgment in his or her favour must adduce cogent evidence in proof of its claim. According to the 2nd respondent, the petitioner’s guardian expected it to pay the entire bill charged by the 1st respondent without furnishing the basis of his assumption. The 2nd respondent then expounded on its statutory mandate, with a view of demonstrating that the petitioner’s guardian had the option of seeking medical services at any of the many institutions in which the entire bill is catered for by the Fund; but instead consciously elected to visit a Category C facility with the full knowledge of the applicable conditions.

21. On whether Rule 4 of the Medical Practitioners and Dentists (Professional Fees) Rules 2016 is unconstitutional for being inconsistent with Articles 46 and 50 of the Constitution, the 2nd respondent relied on the presumption of constitutionality. To that end, the 2nd respondent relied on the cases of Samson Muriungi Mwirebua v Silas Kimathi Mutonga & Another [2019] eKLR and Kenya Human Rights Commission v Attorney General & Another [2018] eKLR. It contended that, to the extent that Rule 4 encourages arbitration, it is in accord with Article 159(2)(c) of the Constitution; and therefore that the petitioner’s prayer for the Rule to be declared unconstitutional is misconceived. Thus, the 2nd respondent urged for the dismissal of the Petition with costs.

22. The petitioner responded to the respondents’ written submissions on points of law, thereby reiterating the applicability of the United Nations Guidelines for Consumer Protection pursuant to Article 2(5) of the Constitution. The petitioner further submitted that this is the proper forum for agitating the subject grievance, and added that the other forums suggested by the 1st respondent have no jurisdiction to entertain disputes alleging violation of constitutional rights.

23. In the light of the foregoing, the factual basis of the Petition is not in dispute and has been well-captured in the parties’ affidavits and the written submissions filed herein. Thus, there is no dispute that on the 11th April 2022, the petitioner fell ill and was taken to Trans Nzoia County Hospital for treatment. As her condition continued to worsen, her guardian took her to the 1st respondent’s facility where the minor was admitted on the 12th April 2022. She was discharged from the facility on 14th April 2022 and a bill issued by the 2nd defendant for Kshs. 26,245/= for the services rendered. The petitioner’s guardian is aggrieved and contends that the bill was exorbitant, considering the duration of admission. He also took issue with the fact that the 2nd respondent contributed Kshs. 3,600/= only as bed rebate.

24. Thus, the petitioner’s Petition is hinged on two planks; the first being the alleged infringement of the minor’s rights under Article 46 of the Constitution. The second is the contention by the petitioner that Rule 4 of the Medical Practitioners and Dentists (Professional Fees) Rules, 2016 is unconstitutional for being inconsistent with Articles 46 and 40 of the Constitution. Accordingly, the issues for determination are:(a)Whether the petitioner’s rights as enshrined in Article 46 of the Constitution of Kenya were infringed by the 2nd respondent.(b)Whether Rule 4 of the Medical Practitioners and Dentists (Professional Fees) Rules, 2016 is unconstitutional for being inconsistent with Articles 46 and 50 of the Constitution.(c)Whether the petitioner is entitled to reliefs sought in the Petition.

25. However, before a consideration of the issues, it is imperative for the Court to address the technical objection raised by the respondents. Initially, the issue of jurisdiction was taken up by the 1st respondent by way of a Notice of Motion dated 12th September 2022. The contention. At the time, was that since the 1st respondent is based in Kitale, the Petition ought to have been filed before the High Court at Kitale. The application was however withdrawn on 7th March 2023. Thus, although the 1st respondent proposed the issue of jurisdiction as one of the issues for determination, it is plain from paragraphs 8 and 9 of its submissions that the issue was conceded on the basis of the provisions of Articles 2(1), 22(1), 23(1) and 165(3)(b) of the Constitution and therefore need no further consideration.

26. Thus, the only technical objection raised by the respondents to the Petition is whether it meets the constitutional threshold as to specificity. It is now a well-developed principle that in constitutional litigation, a party that alleges a violation of rights and fundamental freedoms must plead with reasonable precision the violation alleged, the manner of violation or infringement and the relevant provisions of the Constitution said to be violated or threatened with violation.

27. Accordingly, in the case of Anarita Karimi Njeru v Republic (supra) the Court of Appeal held:“…if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”

28. The principle was affirmed by the Court of Appeal in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR as hereunder:“(42)…the principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice, as they give fair notice to the other party. The principle in Anarita Karimi Njeru (supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extension of this principle. What Jessel, M.R said in 1876 in the case of Thorp v Holdsworth (1876) 3 Ch. D. 637 at 639 holds true today:““The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules…was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues, and thereby diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing.”(43)The petition before the High Court referred to Articles 1, 2, 3, 4, 10, 19, 20 and 73 of the Constitution in its title. However, the petition provided little or no particulars as to the allegations and the manner of the alleged infringements…(44)We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference…”

29. With the foregoing in mind, I have carefully perused the Petition. It is manifest that the petitioner provided the factual details of her claim as well as the provisions of the Constitution that were deemed applicable to her situation. In particular, the Petition sets out, at paragraphs 20, 21 and 22, the provisions of Articles 46, 48 and 50 of the Constitution, as well as the manner of infringement at paragraphs 36 of the Petition. It is noteworthy, however, that the facts as presented do not meet the applicable threshold. For instance, in respect of Article 46, the petitioner complained that the 1st respondent:“…failed to provide complete and accurate information regarding the goods and services, terms, conditions applicable, fees and finals costs to enable consumers take informed decisions resulting in a medical bill which the petitioner deems as inflated and exorbitant.”

30. As against the 2nd respondent, the particulars supplied by the petitioner were in:“…failing to settle the entire bill despite offering the same services to individuals in the Civil Service and only catering for bed rebates in the event of the minor admission in private hospitals such as the circumstances above is discriminatory as well as infringes on the Petitioner’s economic interest which is one of the tenets of consumer rights.”

31. Lastly, in respect of Article 50 of the Constitution, the petitioner contended that her right as a consumer has been infringed, denied, violated or infringed or threatened by:“absence of a forum where this dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”

32. The above mentioned paragraph are clearly deficient in terms of the exact manner of infringement when placed in the scale vis-à-vis the applicable provisions of the Constitution. Moreover, the petitioner impugned Rule 4 of the Medical Practitioners and Dentists (Professional Fees) Rules, for being inconsistent with the Constitution in that it only offers a forum for arbitration but not a mechanism for an effectual determination of a dispute on medical charges. Rule 4 provides:“The Board shall have powers to arbitrate any disputes on fees as shall arise between a practitioner and an institution or between a practitioner and a patient or a third party and the Board shall conduct the arbitration in such manner as it shall consider suitable for determination of the dispute.”

33. While acknowledging that that there is a dispute resolution mechanism in place to address such a complaint, the petitioner opted to approach the Court with the instant Petition without any attempt at such resolution. The factual basis of the petitioner’s position that the bill was unjustified has therefore not been fully disclosed to enable the Court ascertain the alleged breach. More importantly, since the Constitution itself champions alternative dispute resolution mechanisms at Article 159(2)(c) thereof, it cannot be the case that, arbitration, which is one of the alternative dispute resolution mechanisms provided for in Article 159(2)(c), should be considered ineffectual or unconstitutional; for, it is a cardinal principle of constitutional interpretation that that the entire Constitution has to be read as an integrated whole, such that no particular provision should destroy the other but each ought to sustain the other. (See Centre for Rights Education and Awareness & another v John Harun Mwau & 6 others [2012] eKLR)

34. Thus, roundly considered, the petitioner utterly failed to specify which aspect of the subject bill she is disputing. A copy of the bill was exhibited by the petitioner as Annexure TSA-4 and it does confirm that the bill was itemized. It was therefore imperative for the petitioner to specify which aspect of the bill is exorbitant and the basis for such posturing.

35. Similarly, regarding the allegation that the 2nd Respondent acted in breach of the Constitution by not covering the entire bill, it has been clearly explained that the 2nd respondent offers different schemes for different categories of its clients; and that each individual is left with the option of electing where to seek services from on the basis of his/her cover. In the circumstances, the petitioner was under obligation to provide specific details as to the breaches alleged against the 2nd respondent vis-à-vis its statutory mandate and the applicable provisions of the Constitution. This obligation has not been discharged.

36. Hence, it is clearly evident that the Petition falls far short of the required threshold for constitutional matters. Indeed, in the case of Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another [2016] eKLR, the Court of Appeal pointed out that:“Constitutional litigation is a serious matter that should not be sacrificed on the altar of all manner of frivolous litigation christened constitutional when they are not and would otherwise be adequately handled in other legally constituted forums. Constitutional litigation is not a panacea for all manner of litigation; we reiterate that the first port of call should always be suitable statutory underpinned forums for the resolution of such disputes.”

37. Similarly, in Harrison v Attorney General of Trinidad and Tobago [1980] AC 265 cited with approval in the Kenyan case of Alphonse Mwangemi Munga & 10 Others v African Safari Club Limited [2008] eKLR, it was held: -“The notion that whenever there is a failure by an organ of Government or a Public authority or public office to comply with the law this necessarily entails the contravention of some human rights or fundamental freedoms guaranteed to individuals by Chapter 1 of the Constitution (our Chapter V) is fallacious. The right to apply to the High Court…for redress when any human right or fundamental freedoms is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action. The mere allegation that a human right has been or is likely to be contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the section if it is apparent that the allegation is frivolous, vexatious or abuse of the process of court, as being made solely for the purpose of avoiding the necessity of applying the normal way for appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.”

38. In the result, it is my considered finding that the Petition falls short of the requisite threshold for constitutional petitions; and therefore it would be superfluous to engage in a merit consideration thereof. The same is hereby struck out with no order as to costs.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 9TH DAY OF NOVEMBER, 2023. OLGA SEWEJUDGE