Court Lifts Suspension Of Ruto's Social Health Insurance Act Deductions
However, the following provisions of SHIF remain suspended pending the hearing and determination of the applicant’s appeal
Marvin Chege 
The Court of Appeal has lifted orders issued by the High Court which suspended the planned implementation of the Social Health Insurance Act 2023 and other related Acts by the Ministry of Health after three bills on the same were signed by President William Ruto.
In their verdict delivered on Friday, January 19, Justices Patrick Kiage, Pauline Nyamweya and Grace Ngenye ruled that owing to the suspension of the roll-out of the new health fund, there is "a real and present danger to the health rights of countless citizens who are not parties to the litigation pending before our courts."
"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 Page 2033 and The Digital Health Act, 2023, save for the following provisions of the Social Health Insurance Act that shall remain suspended pending the hearing and determination of the applicant's appeal," the ruling seen by Viral Tea read in part.
President William Ruto (right) holds the umbrella for Health CS Susan Nakhumicha while making their way to Syokimau, Machakos County on November 22, 2023. /PCS
However, the following provisions of SHIF remain suspended pending the hearing and determination of the applicant’s appeal in Civil Appeal No. E984 of 2023:
- 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) which 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) which obligates every Kenyan to be uniquely identified for purposes of the provision of health services.
The court was further 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 parties in the case have been granted 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 shall thereafter 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 be lifted.
The Act which includes the following bills: The Social Health Insurance, Primary Health Care Act, and the Digital and Digital Health Act, was suspended by the High Court until February 7, 2024.
Kenya Medical Practitioners, Pharmacists & Dentists Union (KMPDU) had moved to court to have the Act suspended as it poses a threat to the larger health industry.
The signing of the bills took place at State House during a publicised event held at its courtyard, a notable shift from the bill signing events which take place indoors in closed-door events. The publicising of the signing of the bills, which was also televised, carried a major significance given that it came a day before Mashujaa Day on Friday, October 20 in Kericho County.
President Ruto who spoke after the signing of the bills, remarked that the country has made a huge step towards transforming its healthcare system.
“Today we have made a significant step towards making healthcare universal for all Kenyans. I thank and commend the people of Kenya for actively shaping these laws through various public engagement platforms," stated Ruto.
It is perhaps the Social Health Insurance Bill that carried the most significance since this is the one that abolished the National Health Insurance Fund (NHIF) officially for the first time since 1966.
By revoking NHIF and replacing it, President Ruto seeks to attain Universal Health Coverage (UHC) as set out within his plan for a healthier nation espoused under the Bottom Up Economic Transformation Agenda (BETA).
In place of NHIF, Ruto created three funds namely Primary Health Care Fund, Social Health Insurance Fund, and Chronic Illness and Emergency Fund.
The Social Health Bill was to enable all Kenyans to access quality care, regardless of their financial status. Kenyans employed in the formal sector were to make a monthly contribution of 2.75 per cent of their salary capped at a minimum of Ksh300 and a maximum of Ksh5,000.
The SHI Act also stipulates that all non-Kenyans who reside in the country will be eligible for registration as members of the Fund. This applies to a non-Kenyan resident ordinarily residing in Kenya for a period exceeding 12 months.
