Why court has halted SHA's recruitment drive

The ruling marks a significant assertion of constitutional values in public employment, reinforcing the principles of merit, fairness, and equal opportunity.

The Employment and Labour Relations Court in Nairobi has issued conservatory orders temporarily halting the ongoing recruitment by the Social Health Authority, which restricts applications exclusively to former staff of the defunct National Health Insurance Fund (NHIF).

Justice Byram Ongaya delivered the landmark ruling on Thursday, putting a halt to what he termed as unconstitutional, discriminatory, “restrictive and opaque” hiring process that's in breach of fair administrative procedures.

The ruling, which follows a petition by Said Omar Abdile, underscores the constitutional requirement for fairness, transparency, and equal opportunity in public employment.

In March 2025, SHA published internal advertisements for various positions, including senior and middle management roles, on its website. 

The advertisement exclusively invited former NHIF staff to apply for several positions, including Directors, Deputy Directors, County Coordinators, and various officer-level roles.

On April 28, 2025, Abdille filed an application seeking conservatory orders to halt the recruitment and to compel SHA to re-advertise the positions through an open, competitive process.

Abdile, represented by Duwane and Wethow Advocates, argued that the limitation violated constitutional rights and the Social Health Insurance Act (SHI Act) of 2023.

He asked the court to find SHA’s recruitment process as unconstitutional, discriminatory and lacking transparency.

The petitioner cited Section 17 and Clause 6 of the Transitional Provisions of the Social Health Insurance Act, 2023, which require SHA to recruit staff afresh based on merit, integrity, and suitability, rather than through automatic absorption or preferential treatment of former NHIF staff.

Abdille further referenced documented allegations of corruption and inefficiency at the defunct NHIF, as highlighted in the Auditor-General’s Report for the year ended June 2023, to support the need for an open and competitive recruitment process.

The respondents, represented by the Attorney General and the Public Service Commission (PSC), countered the petition.

On May 17, 2025, the PSC filed grounds of objection, defending the restriction as legally mandated by the Social Health Insurance Act, 2023, specifically Paragraphs 6(3) and 6(4) of the First Schedule, which requires SHA to give priority to suitably qualified former NHIF staff during recruitment.

They argued that the internal advertisement was thus legally justified and necessary for a smooth transition from NHIF to SHA.

Justice Ongaya examined the relevant provisions of the Social Health Insurance Act, 2023, particularly Paragraph 6 of the First Schedule, which states that SHA must competitively recruit and appoint staff under Section 17 of the Act, subject to an approved staff establishment.

The Act further says that former NHIF staff are eligible to apply and may be considered if suitably qualified and that SHA is required to review the qualifications of all former NHIF staff and give them priority if they meet the requirements.

However, the court emphasised that the Act does not exempt SHA from the constitutional and statutory requirements of fairness, transparency, and equal opportunity in public recruitment.

Justice Ongaya cited Section 37 of the Public Service Commission Act, 2017, which mandates that public vacancies be advertised widely to ensure equal access and non-discrimination.

“The commission or authorised officer shall invite applications by advertising the vacancy in the commission's website, at least one daily newspaper of nationwide coverage, the radio and other modes of communication, so as to reach as wide a population of potential applicants as possible.”

The judge underscored that SHA, being a newly established statutory body under the SHI Act 2023, had no legal basis to treat former NHIF staff as “internal applicants.”

Justice Ongaya further held that the SHA was bound by paragraph 6(2) of the First Schedule to the SHI Act, which mandates competitive recruitment based on an approved staff establishment.

He emphasised that, “The staff do not enjoy automatic transition as staff of the 1st respondent” [SHA], and “there could be no ‘internal advertisement’ with respect to the defunct NHIF”.

Moreover, he said Article 232 of the constitution requires fair competition and merit-based appointments in public service.

The court found that SHA’s reliance on paragraph 6(4) of the First Schedule, which provides for priority consideration of suitably qualified former NHIF staff, could not override the obligation to conduct open and competitive recruitment.

The court also invoked Section 37 of the Public Service Commission Act, 2017, which mandates broad public advertisement of vacancies, reinforcing the requirement for openness and fairness.

The Judge clarified: “The effect appears to be that if such staff are qualified for any of the openly advertised vacancies and have opted to apply, then they will get appointment in priority... but not being staff of the defunct NHIF cannot mean exclusion of other qualified candidates.”

The judge noted that SHA had not demonstrated the existence of an approved staff establishment as required by the Act, nor had it provided evidence of compliance with the competitive recruitment process outlined in the Public Service Commission Act.

Justice Ongaya granted the petitioner’s request for conservatory orders, staying SHA’s recruitment process pending the hearing and determination of the petition.

The court directed SHA to re-advertise all positions through an open, competitive, fair, and transparent process, in accordance with the law and devoid of restrictions favoring former NHIF staff.

The court further ordered that costs of the application be provided for and reserved the right to issue further orders to meet the ends of justice.

The ruling marks a significant assertion of constitutional values in public employment, reinforcing the principles of merit, fairness, and equal opportunity.

The case now proceeds to a full hearing, with the fate of SHA’s recruitment process and the employment prospects of thousands of Kenyans hanging in the balance.