The Court of Appeal has overturned the High Court’s orders that temporarily halted the implementation of the Social Health Insurance Act, set to replace the NHIF Act.
In a ruling delivered on Friday, Justices Patrick Kiage, Pauline Nyamweya, and Grace Ngenye expressed concern about the suspension causing a “real and present danger to the health rights of countless citizens who are not parties to the litigation pending before our courts.”
The court stated, “We are persuaded that the confusion, the lacuna, and the risk and harm to citizens pending the hearing and determination of the appeal is a price too dear to pay, and it would have the effect of rendering the appeal nugatory.”
Consequently, the judges suspended the High Court’s orders restraining the implementation of The Social Health Insurance Act, 2023, The Primary Health Care Act, 2023, and The Digital Health Act, 2023.
However, the suspension doesn’t extend to Section 26(5), requiring registration and contribution for accessing public services, and Section 27(4), specifying that healthcare services are available only when contributions to the Social Health Insurance Fund are up to date. Additionally, Section 47(3), obligating unique identification for health services, remains suspended.
The involved parties have been given seven days to file written submissions on the three suspended sections. The Appellate Court Registrar will then allocate a hearing date before March 31, 2024.
Health Cabinet Secretary Susan Nakhumicha sought the Court of Appeal’s intervention, arguing that the High Court’s orders had deprived many Kenyans of medical care, violating constitutional provisions.
Senior Counsel Fred Ngatia, representing the Health Cabinet Secretary, emphasized that the court orders disenfranchised Kenyans, preventing them from accessing medical care since the Social Health Insurance Act, 2023, replaced the NHIF Act. He urged the court not to let legal disputes deny Kenyans their constitutional rights.
The Attorney General, through legal representation, appealed to lift the existing orders, emphasizing the urgency of the situation, as many patients were suffering while awaiting the court’s decision.
The Kenya Medical Practitioners and Dentists Union (KMPDU) argued in its case that the government implemented the Social Health Insurance Fund Act, 2023, the Primary Health Care Act, 2023, and the Digital Health Act, 2023, without engaging stakeholders to address the contentious issues.
