By The Weekly Vision Team
Former Naivasha MP John Mututho, who has been embroiled in a legal tussle with the National Hospital Security Fund Board, can now breathe a sigh of relief after High Court Judge J.W.W. Mong’are ruled in his favor and ordered that his company, Jomec Ltd., be paid for services rendered to NHIF, the ruling was delivered on November 6, 2023.
Mr. Mututho is the Managing Director of Jomec Ltd., and he went to court on May 2, 2023, seeking orders that the Arbitral Award by the Sole Arbitrator, Mr. James Muruthi Kihara, dated March 3, 2022, be recognized as binding and adopted as a judgment of the court. JOMEC Ltd. was, through Legal Notice Number 96 of 2017, gazetted to offer medical and specialized rehabilitative care and treatment for drug and substance abuse patients by NHIF to NHIF beneficiaries.
Subsequently, the parties entered into five separate contracts for these services. Under the said contracts, JOMEC would treat the patient and bill NHIF on a rolling basis, and NHIF was expected to settle the invoices as per the terms of the said contracts. However, over time, NHIF declined to settle some claims, and in 2019, a dispute arose, and the same was referred to arbitration in line with the provisions of the contracts thereto.
Upon conclusion of the exercise, the report was produced and handed over to the sole arbitrator, who proceeded to make a determination of the claim in favor of JOMEC with an award of Kshs. 182,056,000.00. In their application filed on May 31, 2022, NHIF urges the court to find that the award by the arbitrator is against public policy in that it goes against the tenets of the NHIF Act, the statute that establishes and sets out the operations of the NHIF Board.
NHIF further argues that the arbitral tribunal, in its determination, failed to consider that the contractual relationship created by the five contracts was subservient to the NHIF Act, which mandated the NHIF Board to investigate and inspect claims presented to it by its service providers before approving payments to the same. In its grounds supporting the said application, NHIF objected to the engagement by the arbitral tribunal of CPA Joseph Ndambiri Mugo.
The response to this application by JOMEC was by way of a replying affidavit sworn by John Michael Njenga Mututho on September 15, 2022. JOMEC argued that the application was frivolous, vague, speculative, misconceived, and an abuse of the court process.
JOMEC further argued that despite the NHIF arguing that the award was contra-statute, the NHIF did not cite any specific provisions of the NHIF Act that were contravened by the award or the arbitrator in making the award.
The judge noted, “I am therefore persuaded that the final award as issued by Mr. James Muruthi Kihara, served upon the applicant on March 3, 2022, is neither contra-statute as argued nor does it offend public policy as alleged by the applicant. I find therefore that the application filed by NHIF on August 31, 2022, is without merit, and I will dismiss the same”.
