https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8996

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E094 OF 2025** **MAATHAI BONIFACE NDIRANGU ...….… ………………PETITIONER** **-VERSUS-** **THE CABINET SECRETARY, HEALTH …..……… ..1ST RESPONDENT** **THE INSURANCE REGULATORY AUTHORITY … 2ND RESPONDENT** **THE SOCIAL HEALTH AUTHORITY ……………… 3RD RESPONDENT** **THE ATTORNEY-GENERAL ………….…...………... 4TH RESPONDENT** **JUDGMENT** 1. The Petition dated 20th February 2025 seeks the following reliefs: 2. ***A DECLARATION that the use of biometric for identification of patients for treatment at the health facilities has failed in numerous occasions leading to patients being deprived of emergency medical treatment as enshrined under Article 43 (2) of the Constitution of Kenya.*** 3. ***A DECLARATION do issue that the use of technology fails and therefore reliance solely on technology for identification of patients for treatment without an alternative method of identification of patients poses risks and therefore not advisable in all situations, especially in critical emergency situations, as the same infringes on citizens’ rights as enshrined under Article 43 (1) (a) and 43 (2) of the Constitution of Kenya, 2010.*** 4. ***An Order do issue to compel insurance companies and stakeholders to include the use of medical insurance cards as an alternative mode of identification to biometric as the same is simple, reliable and efficient.*** 5. ***Any other Order do issue in the furtherance of justice and fairness.*** 6. ***Costs of the suit.*** 7. The Petition is supported by the Petitioner’s affidavit sworn evenly with the Petition and is premised on the grounds on the face of it. Concurrently with the Petition, the Petitioner filed a Notice of Motion Application also dated 20th February 2025 seeking the following ORDERS: – 8. ***SPENT*** 9. ***THAT pending the hearing and determination of this Application, this Honourable Court do issue Conservatory Orders for the implementation of the 2nd Respondent's directives issued on the 13th September 2024 by the 2nd Respondent’s Commissioner within 14 days from the issuance of this Order and a report on the implementation be availed before this Honourable Court on the same.*** 10. ***THAT pending the hearing and determination of this Petition, this Honourable Court do issue Conservatory Orders for the implementation of the 2nd Respondent's directives issued on the 13th September 2024 by the 2nd Respondent’s Commissioner within 14 days from the issuance of this Order and a report on the implementation be availed before this Honourable Court on the same.*** 11. ***THAT this Honourable Court do issue any other Orders in the furtherance of justice and fairness in the circumstances*** 12. ***THAT costs of the Application be provided for.*** 13. The Application was premised on the grounds on the face of it and supported by the Petitioner’s sworn affidavit which was also dated 20th February 2025. 14. On 12th May 2025, the Petitioner again filed another Notice of Motion Application seeking the following prayers: - 15. ***SPENT*** 16. ***THAT this Honourable Court do allow the prayers in the Application dated 20th February2025 in terms of Orders (2) and (3) and the Court do issue directions on the hearing of the Petition.*** 17. ***Costs of the Application be provided for.*** 18. In summary, the Petitioner claims that the Social Health Authority (SHA), the 3rd Respondent herein relies excessively on technology-based identification methods by use of biometric One-Time-Password OTP systems for accessing medical services. 19. It is alleged that failures in technology, including data breaches and data entry errors, have hindered access to healthcare, violating the constitutional right to health under ***Article 43(1)(a) of the Constitution***. 20. The Petitioner contends that the 2nd and 3rd Respondents failed to provide a reliable and simple mode of identification such as medical cards to supplement technology-based systems and asserts that the 2nd Respondent is responsible for ensuring effective regulation of insurance and reinsurance to prevent infringement of policyholders’ rights under ***Article 43*** ***of the Constitution***. 21. In response to the Applications and the Petition, **the 2nd Respondent** filed **a Replying Affidavit** sworn by the Commissioner, Godfrey Kiptum **dated 8th August 2025** in which he deposed that the 3rd Respondent the Social Health Authority is not an insurance company or intermediary and therefore, does not fall under their regulatory jurisdiction as defined by the Insurance Act and the court cannot issue orders against them regarding SHA’s operations. 22. It is deponed that the Social Health Authority Act already established a **Dispute Resolution Tribunal** to handle complaints related to social health insurance and therefore, filing a constitutional petition without first utilizing this Tribunal violates the legal doctrine of exhaustion of remedies. 23. It is contended that the Petitioner previously raised the exact same complaints regarding the Teachers Service Commission Medical Scheme managed by Minet Insurance Brokers in a different court case -***ELRC No. E829 of 2022*** – in which the 2nd Respondent already intervened, engaged with the parties and issued specific directives to Minet on 13th September, 2024. 24. The 2nd Respondent pleads that those directives ordered Minet to provide alternative identification methods when SMS One-Time Pins (OTPs) fails, communicate promptly when hospitals are removed from the approved panels, stop denying medication/treatment for terminal illnesses due to delays in approval, enforce contract terms with medical facilities and sensitize teachers about the scheme and improve pre-authorization processes. 25. The 2nd Respondent avers that the Petitioner is wrongly confusing issues regarding their private Group Life Insurance managed by Minet, which the IRA regulates with the public Social Health Insurance managed by the SHA, which the IRA does not regulate. 26. It is asserted that private health insurance is governed by private contracts between parties, and is not a constitutional guarantee under ***Article 43 of the Constitution*** which deals with economic and social rights. 27. It is argued that the Petition is legally defective as it fails to provide specific details on how constitutional rights were violated, failing the well-known ***Anarita Karimi Njeru*** legal test. That the petition also violates the procedure Rules under the Constitution, **The Mutunga Rules** and does not actually raise valid constitutional issues. It is urged that the Court should dismiss the Petition entirely and order the Petitioner to pay the legal costs. 28. On their part, the 1st, 3rd and 4th Respondents jointly filed Grounds of Opposition dated 12th June 2025 opposing the Petition and its attendant Applications on several grounds *inter alia,* that the Petition is scandalous vexatious, is couched in general terms and does not disclose a cause of action. 29. It is contended that Integration of ICT in healthcare is supported and mandated by existing statutes and policies, including: ***Article 43(a) of the Constitution*** which guarantees the right to the highest attainable standard of health, including reproductive health care; ***Section 15 (1) (e), (r), (u) of the Health Act*** which assigns the Ministry of Health responsibilities including providing technical support aimed at health system strengthening, developing and expanding a National Health Information Management System, promoting appropriate health technologies to improve healthcare quality; and ***Section 105 of the Health Act*** which enjoins the Ministry of Health to facilitate the establishment and maintenance of a comprehensive integrated Health information system 30. The 1st ,2nd , and 3rd Respondents stress the irrefutable utility of IHITS in delivering timely, patient-centred, effective, accountable and inclusive healthcare service and asserts that **the Kenya Universal Health Coverage Policy (2020–2030)** acknowledges that prior to IHITS rollout, the healthcare information system was fragmented with multiple gaps 31. They assert that the claim that the biometric system used by Minet Kenya Insurance Brokers Limited is faulty, lacks supporting evidence and contradicts the requirements of ***Section 106 of the Evidence Act***. They further contend that the issue of ICT infrastructure functionality for Universal Healthcare is *sub judice* as it is currently under judicial consideration in Petition No. E513 of 2024. 32. The three respondents additionally contend that technological issues should not be escalated to being constitutional questions but should be resolved through administrative, contractual and legal remedies as recognized by the Supreme Court’s ruling in ***Odinga & 16 others v Ruto & 10 others; Law Society of Kenya & 4 others (Presidential Election Petition, 2022***), where the Court is said to have emphasised prompt remedial measures for emergent challenges rather than constitutional escalation. 33. In a rejoinder, the Petitioner filed a **Supplementary Affidavit dated 27th October 202**5 in response to the Grounds of Opposition and the Replying Affidavit. The Petitioner asserts that he is challenging systemic, administrative and technological failures within the healthcare insurance scheme for public school teachers under the MINET insurance scheme which amount to constitutional violations affecting a vulnerable group, public school teachers and their dependents and raises concerns about the impending transition to the Social Health Authority (SHA) under the new Public Service Medical Fund (PSMF). 34. He deposes that there are constitutional violations under Articles 28 on human dignity, Article 35 on access to information, Article 43 on the right to health and Article 47 on fair administrative action. 35. The Petitioner asserts that systemic failures in the MINET scheme have caused denial of medical services to teachers due to biometric verification failures, loss of registered contact numbers linked to insurance accounts, abrupt termination of contracts with healthcare providers and lapses in insurance coverage without interim solutions, citing real-life scenarios collected from affected teachers to illustrate the consequences of these failures. 36. It is pleaded that these denials resulted in pain, anxiety, trauma and worsening health conditions, violating rights to health, dignity and fair treatment. 37. The Petitioner decries overreliance on digital and biometric systems without fall-back mechanisms and states that there is lack of human support systems or accessible grievance redress channels. It is stated that there is no manual override for OTP-based verification which excludes users without phones or with lost contact details. 38. The 2nd Respondent the, Insurance Regulatory Authority’s claim that grievances should now be directed to the Social Health Authority Tribunal is challenged by the petition for reasons that violations occurred under MINET, before SHA and that the SHA Tribunal is not yet fully constituted or functional, thus it cannot offer effective remedies and that there is no evidence that alternative statutory mechanisms provide adequate constitutional remedies, referencing ***Article 22 of the Constitution*** and the ***Mumo Matemu*** decisions. 39. The petitioner further contends that the transition to SHA, effective 1st December 2025, poses continuing risks to constitutional rights because SHA currently lacks published operational guidelines to address biometric failures, insurance denials, emergency access, or vulnerable users without phones; clear complaints or redress mechanisms to handle digital exclusion, data privacy breaches, or wrongful denial of healthcare; a proper transition framework or ombudsperson oversight; and a human-rights aligned data protection regime for biometric health data. 40. The deponent petitioner emphasises the Government of Kenya’s constitutional obligation under ***Article 21(1)*** to protect rights, specifically the right to health under ***Article 43(1)(a) of the Constitution***. It is urged that failure to provide emergency access or manual verification options contravenes ***Article 10*** on inclusiveness, ***Article 27*** on Equality and Non-discrimination and ***Article 47*** on Fair administrative action. 41. The Petitioner asserts that the Court has jurisdiction under ***Article 165 (3) (b)*** to determine violations or threats to fundamental rights and urges the Court to grant the reliefs sought in the Petition; ensure future health schemes, including SHA, comply with constitutional standards on human dignity, non-discrimination, and responsiveness; and prevent recurrence of the injustices experienced under MINET. 42. The parties took directions before this Court (differently constituted before Hon. E.C. Mwita J.) to canvass the Petition by way of written submissions which were also to be highlighted before the Court. **The Petitioner’s Submissions** 1. The Petitioner’s Submissions are dated **22nd October 2025**. Learned Counsel for the Petitioner Dr. Khaminwa isolates five issues for determination and these issues are: 2. ***Whether the instant petition is a competent constitutional petition;*** 3. ***Whether the Respondents violated or threatened to violate the Petitioners constitutional rights under Articles 28, 35, 43(1)(a) and 47 of the Constitution;*** 4. ***Whether the implementation of a purely biometric/ICT-based healthcare access system without adequate safeguards constitutes unfair administrative action;*** 5. ***Whether the transition to the Social Health Authority, as currently framed, is constitutionally compliant; and*** 6. ***Whether the Respondents failed in their statutory and constitutional duties to regulate, protect and ensure access to healthcare.*** 7. On the first issue, it is submitted that the doctrines of exhaustion of remedies and *sub judice* do not bar access to the High Court since the cases of ***Justus Kariuki Mate v Martin Nyaga Wambora (2017) eKLR*** and ***Albert Chaurembo Mumbo & Others v Maurice Munyao (2019) eKLR*** established that constitutional questions and ineffective alternative remedies justify direct court action because the doctrine of exhaustion is not absolute by dint of ***Article 22 (1) of the Constitution*** which grants every person the right to institute court proceedings where a violation or threat of violation of the Bill of Rights is alleged and ***Article 23(1) of the Constitution*** which empowers the Court to grant appropriate reliefs, including declarations, injunctions and compensation for violations of fundamental rights. 8. Counsel submits on the exceptions to the doctrine of exhaustion and cites the cases of ***Speaker of the National Assembly v Karume [1992] eKLR, the Supreme Court in Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others [2019] eKLR*** and ***Krystalline Salt Ltd v KRA & 8 Others, Mombasa High Court Petition No. 159 of 2018*** in support of these arguments and argues further that the Insurance Regulatory Authority’s mandate excludes constitutional remedies that may accrue in cases of alleged violations of right to health under **Article 43(1)(a)** of the Constitution, violation of right to human dignity under **Article 28,** violation of right to fair administrative action under **Article 47** and violation of right to access information under **Article 35** of the constitution, making the High Court’s intervention necessary. 9. Counsel for the petitioner submits that the right to the highest attainable standard of health includes access to healthcare services and that the Kenyan teachers were denied healthcare due to expired biometric links, loss of OTP-linked phone numbers and expired insurance contracts without continuity. They cited the cases of ***Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981)*** by the Supreme Court of India on the right to life including access to medical care and the case of ***PAO v Attorney General (2020) eKLR*** which highlights that public health must be accessible in law and fact, beyond digital platforms. 10. Further submission is that the denial of health care due to biometric failures humiliates and degrades individuals against the set precedent in ***A.M.K. & Another v Attorney General* (2020) eKLR**, and ***Article 28 of the Constitution*** and asserts that degrading administrative hurdles violate this fundamental right. 11. It is also submitted that the biometric-only system lacks alternatives such as manual verification, rendering administrative actions procedurally unfair and unreasonable, contrary to the well-established principle in ***Dry Associates Ltd v Capital Markets Authority (2012)*** where the Court held that administrative actions must be lawful and fair. 12. On the final issue, it is submitted that the Respondents failed to issue timely information on insurance discontinuations, SHA transition, hospital listings, emergency contact and verification protocols contrary to the principle of access to information under ***Article 35 of the Constitution*** which is crucial for rights enforcement as held in ***Nairobi Law Monthly Co. Ltd v Kenya Electricity Generating Co. Ltd* (2013) *eKLR.*** 13. It is further submitted that the 2nd Respondent, the Insurance Regulatory Authority failed to ensure emergency treatment and alternative verification methods, while the Cabinet Secretary for Health and the Social Health Authority neglected oversight to prevent denial of emergency care and ensure guidance on biometric alternatives, contrary to the court’s decision in ***Satrose Ayuma & 11 others v Registered Trustees of Kenya Railways Staff Retirement Benefits Scheme & 3 others [2013] e KLR***, where the Court is said to have held that public bodies have a duty to protect rights even where services are outsourced. That further, the upcoming SHA rollout lacked published rules on data protection, fall-back mechanisms and public participation, thereby violating constitutional values under ***Article 10 of the Constitution*** on transparency, accountability and inclusivity. 14. The petitioner urges that the prayers sought be allowed because the Petition is not frivolous or an academic exercise, but raises genuine constitutional issues concerning digital exclusion, administrative rigidity and access to healthcare for public servants. **The 2nd Respondent’s Submissions** 1. The 2nd Respondent’s submissions are dated **11th November 2025**. Ms. Ndirangu, Learned Counsel for the 2nd Respondent identifies three main issues for the Court’s determination being: 2. ***Whether the Petition offends the principles of exhaustion of remedies;*** 3. ***Whether the Petition meets the threshold of a Constitutional Petition; and*** 4. ***Whether the Petition is contrary to the doctrine of Constitutional avoidance***. 5. On the first issue, it is submitted that the Petition largely alleges system-wide denial of emergency medical care due to the replacement of medical cards by OTP biometric authentication, managed by entities including MINET and the SHA. Counsel asserts that the 2nd Respondent is a statutory body established under ***Section 3 of the Insurance Act, Cap 487*** and mandated to regulate insurance and reinsurance businesses in Kenya and outlines is functions *inter alia*, the supervising and regulating of insurance and reinsurance businesses; licensing insurance-related entities; advising the government on insurance policies; and issuing supervisory guidelines and prudential standards amongst others. That the 3rd Respondent, SHA, is neither an insurance nor reinsurance company and thus falls outside the regulatory scope of the 2nd Respondent. 6. Counsel submits that the Petitioner had previously raised similar issues in a separate case, ***Employment and Labour Relations Court case Nairobi Cause No. E829 of 2022 Mathai Boniface Ndirangu v Teachers Service Commission & Minet Kenya Insurance Brokers Limited,*** relating to MINET and the Teachers Service Commission (TSC) medical insurance scheme where the 2ndRespondent intervened, conducted meetings and issued several directives on 13th September 2024 to MINET Insurance Brokers Limited to generally strengthen their healthcare and insurance systems by implementing backup identification methods, improve communication, expedite critical approvals, enforce facility compliance, regularly educate teachers on benefits and streamline pre-authorisation processes. That from this decision, the Petitioner did not appeal the said directive. 7. Counsel submits that ***Section 173 of the Insurance Act*** requires aggrieved persons to appeal decisions from the Commissioner to the Insurance Appeals Tribunal within one month while ***Section 9(2) of the Fair Administrative Action Ac*t** mandatesexhaustion of administrative remedies before the Court’s intervention. 8. Further, that the doctrine of exhaustion ensures administrative mechanisms are first utilised before judicial recourse as was held in the case of ***William Odhiambo Ramogi & 3 Others v Attorney General & 4 others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR*** and that the Petitioner herein failed to exhaust these remedies making the Petition premature and liable for dismissal. Counsel also cited the High Court’s Judicial Review decision by Chigiti J. in ***Old Mutual General Insurance Kenya Ltd vs. Insurance Regulatory Authority and Tropic Air Ltd. Judicial Review Miscellaneous Application E030 of 2024 [2025] KEHC 4570 (KLR)*** in support of their arguments. 9. Counsel for the 2nd Respondent also cites the case of ***Republic vs. Institute of Certified Public Secretaries of Kenya (Ex-Parte Mundia Njeru Geteru) (2010) eKLR*** and submits that the Petitioner’s conduct of relying on the 2nd Respondent’s decision without appeal and simultaneously alleging breaches, amounts to approbation and reprobation which is inconsistent legal behaviour. 10. Counsel also relied on the case of ***Kenya Human Rights Commission v Insurance Regulatory Authority; Association of Kenya Insurers (Interested Party) (Petition E002 of 2022) [2024] KEHC 16211 (KLR)*** where the High Court held that the Insurance Act has comprehensive in-built mechanisms for addressing complaints pertaining to matters of insurance, thus the invocation of the Constitution was unwarranted as the dispute was not constitutional. It is urged that the Court must down its tools as a consequence, as held by the Supreme Court in the case of ***Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR [36].*** 11. Counsel defines the doctrine of Constitutional Avoidance as the principle that courts should avoid deciding constitutional questions if matters can be resolved on other grounds. It is submitted that courts have consistently held that parties must exhaust appropriate alternative forums before invoking constitutional jurisdiction. That the Petition herein is primarily a civil dispute with a private insurance broker elevated improperly to a constitutional claim. The cases of ***Mutyaene v KCB Bank Ltd & another (Petition No. 412 of 2020) [2023] KEHC 2205 (KLR), Nyambu v Munza & 4 others (2024) KEHC 12101*** and ***Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR) (29 May 1992)*** were cited in support of what constitutes a constitutional question. 12. Counsel for the 2nd Respondent submits that the Petition offends this doctrine because the Petitioner’s grievance relates to the Social Health Insurance system managed by the SHA, outside the 2nd Respondent’s regulatory mandate and asserts that the Petitioner has not demonstrated any violation of constitutional rights attributable to the 2nd Respondent. It is also contended that the Petition is a mischaracterisation of a regulatory issue as a constitutional infringement. 13. On the third issue of whether the Petition has met the legal threshold for constitutional petition, Counsel submits that it is insufficient to merely cite constitutional provisions since the Petition must specify the precise complaint, the constitutional provisions infringed and the manner of infringement as established in ***Anarita Karimi Njeru vs. The Republic (1979) eKLR*** and restated in ***Mumo Matemo vs. Trusted Society of Human Rights Alliance (2013) eKLR*.** 14. Further submission is that the Petitioner admits the 2nd Respondent’s regulatory mandate but misunderstands its scope in relation to the SHA. It is reiterated that SHA is not regulated under the Insurance Act and has its own dispute resolution tribunal. That the Petition herein conflates issues between private insurance regulation and social health insurance provision. 15. The 2nd Respondent emphasises that private health insurance contracts are commercial arrangements, not constitutional guarantees and that the Petition fails to specify how they infringed constitutional rights, failing the required legal threshold. 16. It is submitted that the 2nd Respondent is a regulator of the Insurance industry and their role must be distinguished from the role of a provider of insurance service as emphasized in the case of ***Banking Insurance and Finance Union v Insurance Regulatory Authority (Cause E161 of 2022) [2025] KEELRC 2982 (KLR) (22 October 2025) (Judgment)***. They urged that the Petition be dismissed with costs. **The Attorney General’s Submissions on behalf of the 1st, 3rd and 4th Respondents** 1. The Attorney-General’s submissions are **dated 28th October 2025,** opposing the Petition for three main legal reasons being: that it is a violation of the restraint and effective remedy principle under the doctrine of exhaustion of administrative remedies; that the Petition is *sub judice* and that the integration of Information and Communication Technology (ICT) in health provision is a factual and legal imperative, not raising constitutional claims. 2. On the first legal issue that the Petition militates against the restraint and effective remedy principle, Learned Deputy Chief State Counsel Mr. Kaumba submits that the 2nd Respondent, Insurance Regulatory Authority (IRA) is established under ***Section 3A of the Insurance Act*** and is responsible for supervising, regulating and controlling insurance and reinsurance businesses; ensuring a fair, safe and stable insurance sector; protecting the interests of policyholders and promoting insurance sector development. 3. That consequently, the 2nd Respondent IRA has enforcement powers, including investigations, inspections, directions and imposing civil/criminal sanctions and as such, appeals against IRA decisions are to be made to a designated Tribunal under ***Section 169(1) of the Insurance Act***. 4. It is submitted that the Petitioner had already lodged a complaint with the IRA on 16th October 2023, which was considered and directions were issued to Minet Insurance Brokers on 4th July 2024. That instead of appealing within the IRA framework or seeking further remedy on the alleged non-compliance, the Petitioner filed this Petition, bypassing the established statutory remedies and thereby violating the principle of restraint and effective remedy. 5. Counsel submits that the doctrine of exhaustion of administrative remedies mandates that courts should allow designated agencies to first resolve disputes as established by the Supreme Court in the cases of ***Justus Kariuki Mate & another v. Martin Nyaga Wambora & another (2017) eKLR*** and ***Nicholus v Attorney General & 7 others (2023) eKLR*** andcomparative jurisprudence from theSupreme Court of India in ***United Bank of India vs Satyawati Tondon & Others, 2010 8 SCC*** all which support judicial restraint where effective alternative remedies exist. That at the same time, there were exceptions to the doctrine of exhaustion where there is demonstrated hardship, which is not present in this case. 6. It is their submission that the Petition raises issues similar to those in a pending case before the ***Nairobi High Court, HCPET E513 of 2024*,** concerning procurement and the functionality of the Integrated Health Management System and that the doctrine of *sub judice* bars courts from hearing a matter that is already directly and substantially in issue in a pending suit between the same parties as codified under ***Section 6 of the Civil Procedure Act***. Counsel explains that the purpose of the doctrine is to prevent multiplicity of suits, avoid abuse of court process and prevent conflicting court orders as held by the Supreme Court of Kenya in ***Kenya National Commission on Human Rights v Attorney General & 16 others (2020) eKLR.*** 7. It is further submitted that the substance of the suit, not just its form, determines whether it is *sub judice* as held in ***Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR*** and states that given the Petitioner’s knowledge of the earlier pending case, filing this Petition amounts to an abuse of court process. They also cited the Court of Appeal’s decision in ***Gathariki v Cheko Plot Owners Association & another (2025) eKLR*** where it was held that multiplicity of actions on the same matter is an abuse of process and can warrant dismissal rather than just a stay.They urged that this Petition should be struck out for abuse of court process. 8. It is submitted on the third limb that the use of ICT, including the Integrated Healthcare Information Technology System (IHITS), is mandated and supported under the health policy and law where the ***Health Act*** at ***Sections 15 (1) (e), (r), and (u)***, charges the Ministry of Health with providing technical support to health systems, developing and expanding a national health information management system and promoting appropriate health technologies to improve healthcare quality. **The Kenya Universal Health Coverage Policy (2020–2030)** also acknowledges prior health information system fragmentation and highlights the necessity of integration to improve data quality, timeliness and decision-making. 9. That ***The Digital Health Act*** at ***Section 15,*** establishes a comprehensive integrated health information system for data collection, analysis, and sharing related to health while **The Health Act** under **Section 105,** enjoins the Ministry of Health to facilitate the establishment and maintenance of such an integrated health information system. 10. Counsel submits that therefore, the use of OTP identification technology instead of medical cards aligns with statutory objectives and policy goals to modernise and streamline healthcare delivery. That accordingly, the Petition does not raise valid constitutional claims because the ICT integration is a lawful and necessary government policy. **Analysis and Determination** 1. I have considered all the material placed before the court by all the parties and their submissions for and against the reliefs sought. I find the following issues are ripe for determination: 2. ***Whether this Court has jurisdiction to determine the matter*** 3. ***Sub Judice Rule*** 4. ***Doctrine of Exhaustion*** 5. ***Doctrine of Constitutional Avoidance*** 6. ***Doctrine of non-justiciability /ripeness*** 7. ***Whether the Petition is merited and whether the reliefs sought ought to be granted.*** 8. **Whether this Court has jurisdiction to determine the matter** 9. The Petition herein raises constitutional concerns related to access to emergency medical care and generally the technical challenges in implementing Social Health Insurance. It also anticipates further constitutional violations linked to the planned rollout of the Social Health Authority (SHA) scheduled for 1st December 2025 (now passed). 10. The two main issues raised by the Petitioner are the adoption by Minet Kenya Insurance Brokers Limited of a One-Time-Pin (OTP) identification system instead of medical cards, allegedly compromising emergency medical care, contrary to ***Article 43 of the Constitution*** on the right to health; and the potential technical technological challenges due to registration complexities and payment delays which are likely to hinder the efficient rollout of Social Health Insurance. 11. As a preliminary issue, this Court must first dispense with the issue of jurisdiction where the same has been questioned. In this case, the Respondents alluded to the issue of jurisdiction by raising questions *of sub judice* rule violation and failure to exhaust other dispute resolution mechanisms within the law amongst others. 12. The importance of addressing the issue of jurisdiction as a preliminary issue was spelled out by the Supreme Court in **Aviation & Allied Workers Union Kenya v Kenya Airways Ltd & 3 others (Application 50 of 2014) [2015] KESC 23 (KLR) (6 May 2015) (Ruling)** where itheld in this regard thus: ***“On the issue of jurisdiction, we stated in Aviation & Allied Workers Union Kenya v. Kenya Airways & Others; SC Application No. 50 of 2014, [2015] eKLR that where a court’s jurisdiction, is objected to by any party to the proceedings, such an objection must be dealt with as a preliminary issue, before the meritorious determination of any cause. We must therefore, evaluate whether Petition No. 4 of 2021 and consequently the instant application has met the set jurisdiction principles under Article 163(4)(a) of the Constitution.”*** 1. This principle was originating from the *locus classicus* **Owners of Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR)**, where the Court of Appeal stated as follows: ***“7. A question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court.”*** (emphasis added) 1. It is trite that without jurisdiction, a court of law cannot act. In **Owners of Motor Vessel “Lillian S” *(supra)*** Nyarangi JA had this to say concerning jurisdiction: ***“6. A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter was then obliged to decide the issue right away on the material before it. Jurisdiction was everything. Without it, a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction.”*** 1. On the source of jurisdiction, the Supreme Court in **Samuel Kamau** **Macharia & Another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling),** stated at para 68 that: - ***“68. A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”*** 1. Jurisdiction of the High Court to hear and determine constitutional petitions is derived from **Article 165** which states that: ***(3) Subject to clause (5), the High Court shall have—*** 1. ***unlimited original jurisdiction in criminal and civil matters;*** 2. ***jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened;*** 3. On enforcement of the Bill of Rights, **Article 23** provides that: ***23. Authority of courts to uphold and enforce the Bill of Rights*** ***(1) The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.*** 1. The High Court’s constitutional jurisdiction was well pronounced in the case of **Pharmaceutical Society of Kenya & another v Attorney General & 3 others [2021] KEHC 85 (KLR**), as follows: ***“The constitutional mandate to consider the constitutionality of legislation is vested in the High Court, and articles 2(4) and 165(3(d)(i) mandate this Court to invalidate any law, act or omission that is inconsistent with the Constitution. This is in harmony with the mandate of the courts to be the final custodian of the Constitution.”*** 1. The above authorities posit that the High Court is vested with the jurisdiction to determine constitutional violations. 2. In the present case, the Petitioner alleges violations of constitutional rights under ***Articles 28, 35, 43 (1) (a),*** and ***47 of the Constitution of Kenya, 2010.*** The 2nd Respondent submits that the Petition is premised on fundamentally flawed facts and is a misconception of the regulatory role of the Insurance Regulatory Authority; that it offends the principles of exhaustion of remedies under the Insurance Act and the Fair Administrative Action Act; it violates the doctrine of constitutional avoidance by elevating a civil/regulatory dispute to a constitutional claim without proper grounds; and that it fails to meet the threshold of a Constitutional Petition due to lack of specificity and improper attribution of constitutional breaches. 3. The Attorney-General argues that the Petitioner has failed to exhaust available statutory remedies by not appealing to the Insurance Regulatory Authority or Tribunal regarding their complaints; that the Petition is substantively and procedurally flawed because it duplicates a pending case, risking conflicting orders and abuse of court process; that the government’s policy and legal framework expressly support the integration of ICT in healthcare, including digital identification methods like OTP, to enhance service delivery; and that the Petition’s claims do not amount to a constitutional violation as the government is fulfilling its mandate to improve healthcare access and administration. The Attorney-General urges that the petition be dismissed or struck out on the grounds of non-compliance with the doctrine of exhaustion of remedies, offending the *sub judice* rule and thus an abuse of court process and lacking valid constitutional claims given the statutory backing for ICT integration. 4. The issues being raised on jurisdiction are on the rule of *sub judice*, doctrine of exhaustion, doctrine of constitutional avoidance and doctrine of non-justiciability. I will first consider what the rule of *sub judice* entails. 5. The concept of sub judice in Latin means “***under Judgement.”*** It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, the subsequent court stays the proceeding and such order can be made at any stage. 6. **Section 6 of the Civil Procedure Act** provides as hereunder: ***“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”*** 1. The Supreme Court of Kenya in **Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)** **[2020] eKLR** aptly pronounced itself on the subject of sub judice as follows: ***“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives***.” 1. There are however, three essential conditions for bringing in the operation of the doctrine of res *sub judice*. These are: ***(1) The matter in issue in the subsequent suit is directly and substantially in issue in the previously instituted suit;*** ***(2) The parties in the both suits are the same, either directly or indirectly and;*** ***(3) The court in which the first suit is instituted, is a court of having jurisdiction or competent to grant the relief claimed in the subsequently instituted suit.*** 1. The rationale for this principle was restated in **Kampala High Court Civil Suit No. 450 Of 1993 - Nyanza Garage vs. Attorney General** in which the Court held that***:*** ***“In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.”*** 1. In **Barclays Bank Of Kenya Ltd vs. Elizabeth Agidza & 2 Others [2012] eKLR** the court held that: ***“….if the controversy in the subsequent suit can be conveniently and properly adjudicated upon in the previous suit, by virtue of the enactment of Sections 1A and 1B of the Civil Procedure Act, Section 6 will still apply. This is so because the overriding objective of the Civil Procedure Act is for expeditious and proportionate resolution of civil disputes between parties...”*** 1. Similarly, in**Thika Min Hydro Co. Ltd vs. Josphat Karu Ndwiga [2013] eKLR**, the Court opined that: ***“It is not the form in which the suit is framed that determines whether it is sub judice. Rather it is the substance of the suit and looking at the pleading in both cases.”*** 1. In determining whether or not *sub judice* applies, it is the substance of the claim that ought to be looked at rather than the prayers sought. The substance of the present cause must be the one that is wholly identical to the earlier cause of action. 2. Thus, for the doctrine of sub judice to be successfully raised, there must be two or more suits filed concurrently or consecutively over the same matter, the issues in question must be between the same parties or their representatives and the facts leading to the said issues must be directly and substantially the same. 3. The basic rationale for this rule of sub judice is to guard against a multiplicity of suits and to ensure fair and effective administrative of justice so as to avoid scenarios where courts of concurrent jurisdiction would be embarrassed by rendering conflicting determinations or parties being unduly burdened and prejudiced by the same issues in different courts or abuse of court process. 4. The 2nd Respondent contends that the issues being raised herein were similar to those in ***ELRC No. E829 of 2022, Boniface Mathai Ndirangu and 11 Others v Teachers Service Commission & Minet Kenya Insurance Brokers Ltd***. Although this Court does not have purview of the said proceedings or pleadings in the above cited case, I note from the Petitioner’s letter to the 2nd Respondent dated 20th November 2023 that a Ruling was delivered on 27th July 2023 in which the Court struck out the suit for want of jurisdiction since the complainants had not exhausted the available dispute resolution mechanisms under the Insurance Act. This in itself renders the threshold for *sub judice* rule inexistent. 5. However, in the submissions by the 1st, 3rd and 4th Respondents, Counsel submitted that there is a pending suit in ***Nairobi HCPET E513 of 2024*** which was filed first in time. The pleadings of the said suit have again not been annexed for this Court to make a determination on whether it meets the parameters of the *sub judice* rule. Consequently, I dismiss this argument and ground of opposition. 6. On the second issue of **doctrine of exhaustion**, it is well-established that courts must decline to determine matters which can be resolved on a preliminary basis by other alternative forums or constitutional and statutory mechanisms, in line with **Article 159 of the Constitution**. The Supreme Court’s decision in **Waity vs. Independent Electoral & Boundaries Commission and Three Others [2019] KESC 54 (KLR)** enunciated this principle as follows: ***“[63] Where the Constitution or the law, consciously confers jurisdiction to resolve a dispute, on an organ other than a court of law, it is imperative that such dispute resolution mechanism, be exhausted before approaching the latter. Were it not so parties would bide their time, overlooking the recognized forums, and later springing a complaint at the courts. Such a scenario would be a clear recipe for forum shopping, an undertaking that must never be allowed to fester in the administration of justice. We are fortified in this regard, by the persuasive authority by the Court of Appeal, in Geoffrey Muthinja Kabiru & 2 Others; [2015] eKLR; wherein the Appellate Court observed:*** ***“It is imperative that where a dispute resolution mechanism exists outside the Courts, the same be exhausted before the jurisdiction of the Courts be invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews...The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”*** 1. In the earlier case of **Speaker of National Assembly v Karume [1992] KLR 21**, the Court of Appeal pronounced \*itself as follows regarding the doctrine of exhaustion of remedies: ***“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”*** 1. Similarly, the High Court at Mombasa in **Constitutional Petition No. 159 of 2018 consolidated with constitutional petition No. 201 of 2019 William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) (2020) eKLR** stated as follows: ***52.The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. This encourages alternative dispute resolution mechanisms in line with article 159 of the Constitution and was aptly elucidated by the High Court in R v Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others [2017] eKLR, where the court opined thus:*** ***42.This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:*** ***‘Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.’*** ***43.While this case was decided before the Constitution of Kenya 2010 was promulgated, many cases in the post-2010 era have found the reasoning sound and provided justification and rationale for the doctrine under the 2010 Constitution. We can do no better in this regard than cite another Court of Appeal decision which provides the constitutional rationale and basis for the doctrine. This is Geoffrey Muthiga Kabiru & 2 others v Samuel Munga Henry & 1756 others [2015] eKLR, where the Court of Appeal stated that:*** ***‘It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts. The ex parte applicants argue that this accords with article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution’”.*** 1. I have considered the issues as outlined in the present Petition. The Petitioner submits that the Petition is competent and raises justiciable constitutional issues, that the biometric-only system for healthcare access is constitutionally flawed due to lack of safeguards, alternative verification and public information. He decries that the State and regulatory bodies have failed to protect public-school teachers’ rights to health, dignity, fair administrative action and information and asserts that urgent judicial intervention is necessary to compel reforms ensuring inclusive, fair and constitutionally compliant healthcare access systems. 2. In other words, the Petitioner is aggrieved by the adoption of OTP identification system as the only identification system, instead of medical cards, which according to him, directly compromised emergency medical care and highlights technical challenges that have impeded the effective rollout of Social Health Insurance. He asserts that all these issues violate the right to health care under ***Article 43 of the Constitution***. 3. Indeed, the Petition is crafted around issues of constitutional violations which by law cannot be canvassed and determined by a tribunal which is inferior to the High Court and in this case, is the Insurance Appeals Tribunal in Kenya. Those are issues which can only be raised and addressed by the High Court because tribunals are only empowered to determine issues within the scope defined by their enabling statutes. 4. From this line of reasoning, the avenue of other dispute resolution mechanisms following the tenets of the exhaustion doctrine in respect of constitutional violations cannot apply. However, the question for this Court is whether the grounds of the Petition and the final orders sought are raising valid and pure constitutional violations for this Court to assume jurisdiction over the same or whether they raise issues that could have been resolved in other legally established fora before approaching this constitutional court. This question will be answered fully after addressing the third limb of the **doctrine of constitutional avoidance** which is closely related to the exhaustion doctrine. 5. As I discuss that limb, I am alive to the constitutional command in Article 50(1) that guarantees every person the right to have any 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**. 6. The Constitution of Kenya, 2010 borrowed this Article from the Constitution of South Africa, 1996 (the Constitution) which makes provision for ***“disputes that can be resolved by the application of law” to be resolved, in appropriate circumstances, by an independent and impartial tribunal (ss 33 and 34 of the Constitution).*** For this reason, the place of independent and impartial tribunals is entrenched in Kenya’s constitutional text just as it is I the case of South Africa. Consequently, superior courts cannot be regarded as the only means to review administrative action and access courts. 7. That said, it is now a well-settled principle of law that not every grievance ought to be construed as a constitutional violation and therefore worthy of redress by a constitutional court. Courts are replete with decisions which prescribe that constitutional litigation must only be reserved for genuine violations of the Constitution or the Bill of Rights under ***Chapter 4 of the Constitution***. 8. This Court therefore proceeds to determine whether the issues raised by the Petitioner can effectively be resolved through other statutory mechanisms other than pleading constitutional violations and seeking constitutional remedies. The Supreme Court in **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR** succinctly held in this regard as follows: ***“The principle of constitutional avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis. It is a sound judicial practice for courts to decide cases on non-constitutional grounds if that course is available. The principle of constitutional avoidance entails that a court will not determine a constitutional issue when a matter may properly be decided on another basis. It is a sound judicial practice for courts to decide cases on non-constitutional grounds if that course is available. Likewise, in Speaker of the National Assembly v James Njenga Karume [1992] eKLR, the Court of Appeal stated that where a clear procedure is prescribed by law for redress of a grievance, that procedure must be strictly followed before resorting to constitutional remedies.”*** 1. Similarly, the Indian Supreme Court expressed itself as follows in **Re: Application by Bahaduri 1986 LRC (CONSTI) at page 307** thus: - ***“The Courts have said time and again that where infringement of rights are alleged which can be founded in a claim under substantive law, the proper course is to bring the claim under such law and not under the Constitution. This case highlights the un-wisdom of ignoring that advise ...The Constitution sets out to declare in general terms the fundamental concepts of justice and right that should guide and inform the law and the actions of many. While an infringement of the Constitution might in certain cases give rise to the redress provided for at Section 14, yet, as has been proclaimed by the highest Court in the land, it is not a general substitute for the normal procedures for invoking judicial control of administrative action.”*** 1. In **John Harun Mwau v Peter Gastrow & 3 others [2014] eKLR,** it was held that: ***“***[***The Constitution***](https://new.kenyalaw.org/akn/ke/act/2010/constitution)***should not be turned into a general substitute for the normal procedures for adjudicating civil or criminal disputes.”*** 1. Additionally, in **Bernard Murage v Fine Serve Africa Ltd & 3 others [2015] eKLR**, Muriithi J held that: - ***“Not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, that route must be pursued first.”*** 1. I have considered the crux of the Petition from the attendant pleadings and the reliefs sought, particularly the annexures attached to the pleadings. In the letter dated 16th October 2023 written by the Petitioner to the 2nd Respondent, the Petitioner through his counsel raised the same issues before the Regulator, IRA, which issues have also been raised in this Petition. I note that there is also a response on record dated 13th September 2024 from the 2nd Respondent’s Director ,Market Conduct Ms. Ann Chelagat in which they acknowledge the issues raised and where they issue specific directives to the Insurance Broker Minet Kenya after a tripartite meeting held between the Petitioner, the broker - Minet and the Regulator IRA, the 2nd Respondent. 2. I have carefully considered the contents of the said response and I note that the Regulator/2nd Respondent addressed the issues raised by the Petitioner which are identical to those forming the basis of the present Petition. The contents of the said directives from the said letter are reproduced here below: 3. ***Provide a redundant option by implementing an alternative identification method in case of OTP failure.*** 4. ***Ensure prompt communication to teachers regarding the removal of hospitals from the approved panel.*** 5. ***Establish efficient processes to ensure that no teacher is denied medication for terminal illness, expediting approvals to prevent delays in essential treatment.*** 6. ***Enforce adherence to contract terms by medical facilities.*** 7. ***Regularly sensitize teachers in liaison with TSC on the benefits of the scheme and submit sensitization reports to the Authority on a semi-annual basis.*** 8. ***Enhance the pre-authorization and approval processes to eliminate delays and ensure compliance to set timelines****.* 9. From the above, it is clear that the Petitioner was well aware that the first forum for redress on the challenges emanating from the use of OTP identification system to access medical care from Minet Broker and its insurance companies under the TSC Medical Scheme were capable of being addressed by the 2nd Respondent, hence their complaint letter. 10. I observe that the 2nd Respondent did consider the Petitioner’s grievances, called for a tripartite meeting and addressed the complaints through the above directives. What remains is implementation of the directives or in the alternative, upon dissatisfaction or failure to ensure implementation of the directive, the Petitioner would have recourse before the **Insurance Appeals Tribunal** under **Section 173 of the Insurance Act**. 11. Accordingly, I am satisfied that the Petitioner’s grievances are matters that could have been addressed by the 2nd Respondent and ultimately by the **Insurance Appeals Tribunal** before approaching the High Court. This finding takes me back to the **doctrine of exhaustion**. The Insurance Act establishes the Insurance Regulatory Authority, IRA as the specialized body mandated to regulate and resolve disputes in the insurance sector. By bypassing the IRA and the Insurance **Appeals Tribunal,** the Petitioner undermined the principle of institutional competence and specialization. Courts have repeatedly held that constitutional Petitions should not be used to short‑circuit statutory processes (See **Speaker of the National Assembly v Njenga Karume [supra]**. 12. This Court opines that the Petitioner ought to have allowed the matter to be addressed within the statutory framework after lodging the grievance with the IRA and IRA in turn giving directives, before escalating to the constitutional court. Furthermore, the Petitioner’s grievance is essentially regulatory and contractual in nature, falling squarely within the IRA’s jurisdiction. Elevating the grievance into a constitutional petition amounts to constitutionalizing ordinary disputes, which the courts have cautioned against as demonstrated in the case of **Communications Commission of Kenya (*supra*)**. 13. In view of the above findings, I find it necessary to discuss the fourth limb of the jurisdictional issues being raised herein, that is the **ripeness doctrine**. This principle requires that a constitutional petition must present a live controversy that is ready for judicial determination. In **Attorney-General & 2 others v Ndii & 79 others; Prof. Rosalind Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) (Judgment) (with dissent)** the Supreme Court guided as follows on the issue of ripeness: ***“61. The doctrine of ripeness focused on when a dispute had matured into an existing substantial controversy deserving of judicial intervention. The doctrine of ripeness prevented a party from approaching a court before that party had been subject to prejudice, or the real threat of prejudice, as a result of the legislation or conduct challenged.*** ***63.Ripeness discouraged a court from deciding an issue too early. It therefore required a litigant to wait until an action was taken against which a judicial decision could be grounded and a court was able to issue a concrete relief. That approach shielded a court from dealing with hypothetical issues that had not crystalized.”*** 1. Similarly, in **County Assembly Forum & 6 others v Attorney General & 2 others; Senate of the Republic of Kenya (Interested Party) (Constitutional Petition E229, E225, E226, E249 & 14 of 2021 (Consolidated)) [2021] KEHC 304 (KLR) (Constitutional and Human Rights) (15 October 2021) (Judgment)** the High Court observed as follows: ***“171.The Ripeness doctrine is one facet of the larger principle of non-justiciability. It is a jurisdictional issue that bars a Court from considering a dispute whose resolution has not crystallized enough as to warrant Court’s intervention. Its operation is informed by the idea that there exist other fora with the capacity to resolve the dispute other than Court process.*** ***172.The operation of the doctrine was discussed by a multi-Judge Bench of the High Court in Nairobi Constitutional Petition No. 254 of 2019, Kiriro wa Ngugi & 19 Others v Attorney General & 2 others [2020] eKLR in the following manner: -*** ***107.The doctrine focuses on the time when a dispute is presented for adjudication. The Black’s Law Dictionary 10th Edition, [supra] at page 1524 defines ripeness as:*** ***The state of a dispute that has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made.*** ***108.Courts should therefore frown upon disputes that are hypothetical, premature or academic which have not fully matured into justiciable controversies….…*** ***In Wanjiru Gikonyo & 2 others v National Assembly of Kenya & 4 others Nairobi Constitutional Petition No. 453 of 2015 [2016] eKLR, Onguto J stated:*** ***(27) Effectively, the justiciability dogma prohibits the court from entertaining hypothetical or academic interest cases……. The Court is prevented from determining an issue when it is too early or is simply out of apprehension, hence the principle of ripeness. An issue before Court must be ripe, through a factual matrix for determination.”*** 1. In this case, the Petitioner has not exhausted the IRA and the Insurance Appeals Tribunal processes, meaning the dispute is premature. In the event that the directives by the 2nd Respondent were never complied with, it was incumbent upon the Petitioner to escalate the matter to the Tribunal upon expressing dissatisfaction of how the 2nd Respondent IRA handled his grievances. This was not done. Courts have consistently held that constitutional petitions filed before statutory remedies are pursued are not ripe for adjudication (see **International Centre for Policy and Conflict v Attorney General & Others [2013] eKLR**). I find that it was improper to on the part of the petitioner to by-pass the existing dispute resolution mechanisms provided for in the law, there being no evidence that the alternative statutory dispute resolution mechanisms are unavailable or are ineffective or inadequate. 2. The second Respondent IRA is the competent forum to address the regulatory and contractual issues raised with respect to the insurance services offered by the Broker, while the issues raised in respect of the use of technology in rolling out the universal health care system through the Integrated Healthcare Information Technology System are administrative in nature and are not yet ripe because they were based on the Petitioner’s apprehension that the technological system failures were likely to occur and violate the citizen’s right to heath care once SHA is rolled out on 1st December 2025 (now passed). Such grievances could be addressed by the administrative authorities before being clothed as constitutional violations for redress before a constitutional court. 3. In the end, I find that this petition was prematurely filed, that the petitioner failed to exhaust the available alternative dispute resolution mechanisms and that the doctrine of constitutional avoidance is applicable to the circumstances of this case. 4. Accordingly, the petition dated 20th February, 2025 is dismissed for want of jurisdiction with no orders as to costs. 5. This file is closed. **Dated, Signed and Delivered virtually at Nairobi this 18th Day of June, 2026** **R.E ABURILI** **JUDGE**