The Court of Appeal has suspended the orders of the High Court restraining the implementation of the Social Health Insurance (SHIF) Act, 2023.
In a verdict delivered on January 19, 2024, the Court also suspended the orders restraining the Digital Health Act, 2023 and the Primary Health Care Act, 2023.
“We hereby suspend the orders of the High Court restraining the implementation and or enforcement of The Social Health Insurance Act, 2023, The Primary Health Care Act, 2023 and The Digital Health Act, 2023,” read part of the ruling.
Justices Pauline Nyamweya, Patrick Kiage, and Grace Ngenye ruled that there is a real and present danger to the health rights of countless citizens owed to the suspension of the roll-out of the new health fund.
“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…,” reads the court verdict.
However, the verdict ruled that specific provisions of SHIF remain suspended pending the hearing and determination of the applicant’s appeal in Civil Appeal No. E984 of 2023.
Provisions suspended in Insurance Fund
The first provision is Section 27(4), which provides that a person shall only access healthcare services where their contributions to the SHIF are up to date and active.
Also, the verdict ruled that Section 26(5) will remain suspended.
The provision makes registration and contribution a precondition for dealing with or accessing public services.
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These are public services accessed from both the national and county governments or their entities.
The verdict further suspended Section 47(3), which obligates every Kenyan to be uniquely identified for purposes of provision of health services.
According to the verdict, the parties in the case have been granted seven days to file written submissions on the three Sections of SHIF that remain suspended.
“In order to ensure that Civil Appeal No. 2984 of 2023 is heard and determined in expedited fashion, we direct that the parties therein shall file and serve written submissions and bundles of authorities in accordance with the set timelines,” read part of the verdict.
The Registrar of the Appellate Court shall thereafter allocate a hearing date before 31st March 2024.
Nakhumicha moves to court
Health Cabinet Secretary Wafula Nakhumicha had moved to the Court of Appeal on January 10.
Nakhumicha through her lawyer Fred Ngatia argued that suspension of the fund would inflict suffering to Kenyans who would have otherwise benefited from SHIF.
In his submissions during the hearings made on Wednesday, January 10, Lawyer Ngatia had asked the judges to consider patients who were suffering due to the suspension of the program.
According to him, the suspension had plunged operations in the health sector into confusion.
“I urge you to kindly consider the thousands of patients who are suffering in the country as they seek treatment,” Ngatia said in the session.
Also represented in the court was Attorney General Justin Muturi who also argued in support of Nakhumicha’s position about the suspension.
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According to the AG, suspending the new insurance left a gap in the national health insurance program as the former National Health Insurance Fund (NHIF) had been retired.
However, the Court of Appeal declined to lift orders suspending the implementation of the SHIF.
The Court refused to issue any orders until Friday, January 19, when the court would give directions based on submissions made by parties in the case.
“We decline to issue any orders at this point on this appeal pending our ruling on the lengthy submission made by the parties,” Justice Kiage stated then.
