Kenyan Court of Appeal Lifts SHIF Implementation Orders

The Court of Appeal has lifted the orders of the High Court that restrained the implementation of the Social Health Insurance (SHIF) Act, 2023.

This is in addition to the Primary Health Care Act, 2023, and the Digital Health Act, 2023.

“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,” the ruling reads in part.

“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.”

The Social Health Insurance (SHIF) Act of 2023 is a framework for the management of social health insurance and the creation of the related Social Health Authority, for improving health outcomes and financial protection in line with the right to health and universal health coverage, for realigning healthcare systems, for providing access to health care services to all, and for promoting strategic purchasing of healthcare services.

The act requires Kenyans to contribute 2.75% of their gross income to the Social Health Insurance Fund.

The act also provides for the establishment of the Primary Healthcare Fund and the Chronic and Critical Illness Fund.

Court of Appeal Judges Patrick Kiage, Pauline Nyamweya, and Ngenye Macharia, however, singled out three provisions of the Social Health Insurance Act that will remain suspended pending the hearing and determination of the applicant’s appeal in Civil Appeal No. E984 of 2023:

• Section 26(5) makes registration and contribution a precondition for dealing with or accessing public services from the national and county governments or their entities
• Section 27(4) provides that a person shall only access healthcare services where their contributions to the Social Health Insurance Fund are up-to-date and active
• Section 47(3) obligates every Kenyan to be uniquely identified for purposes of the provision of health services.

Court of Appeal Grants Parties Time to File Submissions on Suspended Sections

The Court of Appeal has granted the parties in the case seven days to file written submissions on the three sections of the Social Health Insurance Act that remain suspended. 

The Registrar of the Appellate Court will then allocate a hearing date before March 31, 2024.

Health Cabinet Secretary Susan Nakhumicha moved to the Court of Appeal, arguing that the High Court order had resulted in many Kenyans being denied medical care against the provisions of the Constitution. 

Through Senior Counsel Fred Ngatia, the Health Cabinet Secretary said the court orders had disenfranchised many Kenyans who were now unable to access medical care since the enactment of the Social Health Insurance Act, 2023 repealed the NHIF Act, imploring the court not to allow legal wars to deny Kenyans a Constitutional right.

The Attorney General, through his lawyer, also pleaded with the court, saying many patients were hurting and that while the court’s decision was being waited upon, the existing orders would be lifted.

The Kenya Medical Practitioners and Dentists Union (KMPDU) argues that the government has gone ahead with the implementation of the Social Health Insurance Fund Act 2023, the Primary Health Care Act 2023, and the Digital Health Act 2023 without engaging stakeholders to resolve the contentious issues.