Court allows State to roll-out new health scheme

Health Susan Nakhumicha. [Jonah Onyango, Standard]

The Court of Appeal has lifted orders barring the government from rolling out the implementation of the new Social Health Insurance Act.

Judges Patrick Kiage, Pauline Nyamweya, and GW. Ngenye Macharia in a ruling delivered Friday said the Appeal by Health Cabinet Secretary Susan Nakhumicha is arguable.

The judges noted that there is a real and present danger to the health rights of countless citizens who are not parties to the litigation pending before courts and were 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.

“For the avoidance of doubt, 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 the ruling in part.

The judges, however, said various provisions of the Social Health Insurance Act shall remain suspended pending the hearing and determination of the appeal by the CS.

The sections included Section 26(5) which 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 and Section 47(3) obligates every Kenyan to be uniquely identified for purposes of provision of health services.

The High Court in November 2023 issued a conservatory order stopping the implementation of the Act following a case filed by Joseph Enock Aura.

CS Nakhumicha appealed and pleaded with the court to lift the suspension. The CS noted that the conservatory orders created confusion and a vacuum in the health sector noting that NHIF had been suspended.

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The CS noted that there was a looming monumental crisis in the health sector and a regulatory vacuum negatively impacting some 17 million members of the National Health Insurance Act.

She noted that patients could not access health services something that was interfering with the government’s plan to implement the Universal Health Coverage programme.