Duale explains why he hired private lawyers in SHA case despite court order

Health CS Aden Duale has admitted before court that the Ministry of Health engaged private lawyers to defend it in a petition challenging the legality of a two per cent HIMS utilisation fee deducted from healthcare providers’ SHA claims.

In a detailed replying affidavit filed before the High Court, Duale has defended the Ministry’s engagement of private law firm Kilukumi & Co Advocates amid contempt proceedings over allegations that they breached court orders regulating the hiring of external lawyers in the SHA fees lawsuit.

The CS denies deliberately disobeying the orders, saying the Ministry engaged the private law firm only after documenting its justification and securing approval from the Attorney General’s Office.

The disclosure comes amid a legal dispute in which Busia Senator Okiya Omtatah, Dr Magare Gikenyi and activist Eliud Karanja have challenged the Ministry’s engagement of the private law firm, arguing that it contravened conservatory orders issued by the High Court in Nakuru.

However, Duale maintains that the Ministry complied with the court orders and statutory requirements governing the engagement of external counsel by Government entities.

The CS accuses the petitioners of attempting to portray him, the Principal Secretary for Medical Services and the Attorney General as having deliberately disobeyed the Nakuru orders.

“Despite the Petitioners’ vain attempts to portray myself, the Principal Secretary, State Department for Medical Services, and the Honourable Attorney General as having acted in deliberate disobedience of the Orders issued by the Nakuru High Court, I wish to state categorically that we hold the Judiciary in the highest regard,” Duale says.

He says the Ministry and the Attorney General have acted in good faith and taken steps to comply with the orders.

“At all material times, the Ministry of Health and the Honourable Attorney General have acted in good faith and have taken deliberate and demonstrable steps to ensure compliance with the Orders issued by the Nakuru High Court,” he says.

Duale says the Attorney General’s Office had, in May, advised the Ministry on the requirements for engaging external lawyers following recommendations by the Public Investments Committee through the Auditor-General.

“Fundamentally, the Office drew the Ministry’s attention to Section 17 of the Office of the Attorney-General Act, which provides that, ‘No Ministry or Department shall engage a consultant to render legal services relating to the functions of the Attorney-General without the approval of the Attorney-General’,” Duale says.

The CS says the Attorney General further advised that National Government entities could only engage private advocates where there was proper justification and formal approval.

According to Duale, the Ministry subsequently documented its justification for hiring Kilukumi & Co Advocates and submitted a formal request to the Attorney General on August 14, 2026.

The request was considered by the Attorney General’s Office, which approved the engagement.

“The Office thus, vide the said letter, approved the Ministry’s engagement of the Firm of Messrs. Kilukumi & Co. Advocates in the present Petition,” Duale says.

The CS argues that the approval demonstrated that the Ministry had complied with the applicable legal requirements.

“It is therefore beyond dispute that the Ministry’s engagement of Counsel on Record in this matter followed the statutory requirements applicable to such engagement and, strictly observed the parameters set by the Nakuru High Court concerning the engagement of external Counsel,” he says.

Duale says the contempt application is an attempt to turn a lawful engagement of lawyers into alleged disobedience of court orders.

“The Petitioners’ evident attempt to derail the substantive Petition through the present Application is not only misconceived but amounts to a collateral attack on a duly authorized engagement of Counsel,” he says.

Duale has asked the High Court to dismiss the contempt application with costs and allow the substantive petition challenging SHA’s two per cent HIMS system utilisation fee to proceed.

The petition challenges what the petitioners describe as the illegal and unconstitutional levy of a two per cent HIMS system utilisation fee and deductions from pre-authorised SHA claim amounts.

They argue that the deductions are unlawful and amount to unconstitutional double taxation.