The Law Society of Kenya (LSK) has moved to court to challenge the decision by the National Hospital Insurance Fund (NHIF) to stop recognising affidavits commissioned by lawyers as proof of marriage.
LSK, in a suit filed at Nairobi’s Milimani Law Courts, argues that the NHIF’s February 22 directive rejecting affidavits commissioned by advocates as proof of marriage is unconstitutional.
The decision, the society says, denies its members the right to make a living by charging commissioning fees and that it is against public interest.
The NHIF had indicated that it will only recognise affidavits commissioned by magistrates as proof of marriage, a decision the LSK says will discriminate against millions of Kenyans who have documents commissioned by advocates.
There is a significant cost difference between affidavits commissioned by lawyers and those by magistrates that is especially critical to the majority of the low-income households who form the base of NHIF membership.
Most advocates commission affidavits at a cost of between Sh500 and Sh5,000 while magistrates charge a standard rate of Sh75 payable at the bank.
The affidavits are usually prepared and stamped in court registries and then taken to magistrates for signing.
LSK is seeking an order of declaration that “the NHIF’s stand that it shall only accept affidavits of proof of marriage commissioned by magistrates and reject those commissioned by advocates is unlawful and contrary to… Oaths and Statutory Declarations Act.”
The Oaths and Statutory Declarations Act provides that advocates upon making an application to the Chief Justice can serve in the capacity of a commissioner of oaths to commission any affidavit or statutory declarations.
LSK says advocates make a living from exercising their powers as commissioners of oath and are entitled to obtain fees.