High Court orders Health Ministry to set up Radiographers Board in three months

The High Court has ordered the Ministry of Health to constitute the Radiographers Board of Kenya within three months.

The court noted that the Ministry of Health had not operationalised the board more than a year after the Radiographers Act, 2022—which establishes the board and outlines its regulatory mandate—came into force.

In a judgment delivered on Thursday, Justice Lawrence Mugambi held that the Ministry’s inaction violated the Constitution, undermined the rule of law, and disregarded the authority of Parliament.

The orders followed a petition filed in October 2024 by the Society of Radiography, which, the High Court found, the Ministry had neglected its statutory duty under the Radiographers Act, 2022.

The petitioners argued that, although the Act expressly provides for the establishment of the Radiographers Board of Kenya, the board had not yet been constituted, leaving the profession without a legally mandated regulator.

"It is the Petitioners' case that the 2nd respondent's failure to establish the Radiographers Board of Kenya is a violation of the rule of law," the judge said.

Justice Mugambi noted that the board is legally authorised to, among other functions, approve qualifications, verify credentials, and oversee the training and regulation of radiographers.

He held that the continued absence of the board had created a regulatory vacuum in a critical health sector.

The court declined arguments by the Ministry and State that relied on historical regulatory arrangements, terming such reliance immaterial in light of the clear provisions of the Radiographers Act.

The judge observed that once Parliament enacted the law, its implementation could not be delayed or ignored based on past practices.

Of concern to the court was the failure to file any response or submissions to explain why the board had not been constituted.

Justice Mugambi described the omission as “glaring,” noting that no justification was offered for inaction despite the lapse of more than a year since the Act commenced.

The judge warned that overlooking a statutory obligation of this nature undermined the authority of Parliament and posed a direct threat to the doctrine of separation of powers.

He further held that executive inaction in implementing legislation amounted to arbitrariness and disregard for constitutionalism.

“The failure to constitute the Radiographers Board of Kenya is inexcusable and unconstitutional,” Justice Mugambi ruled, adding that such omission amounted to an infringement of constitutional and statutory obligations.

He found that the delay prejudiced the effective regulation of radiographers and posed a potential threat to proper oversight of training and professional standards.

The court declared that the Ministry’s failure to establish the board violated the Constitution and the law.

Consequently, Justice Mugambi issued an order of mandamus compelling the Health CS to constitute the Radiographers Board of Kenya within three months.