Court Of Appeal Declines To Lift Orders Barring Implementation Of SHIF

The Court of Appeal Wednesday declined to lift orders of the High Court that pronounced three health laws unconstitutional.
The laws would have given effect to, among other policies, a new health insurance scheme.

The court of appeal instead ruled that the matter will have to await a determination on the validity of the orders of the High Court, which had also stayed its orders for 45 days to give the government time to comply.

Attempts by the government to have High Court orders lifted were delayed further as President William Ruto’s health plan remains in limbo.

Court of Appeal judges Francis Tuiyot, Lydia Achode, and Abida Ali said there is a risk that should the Court of Appeal agree with the High Court’s judgment in its entirety, the public harm would be greater and more costly.

They noted that there is no crisis as pointed out by petitioners since there is a transitional clause from the NHIF scheme, which is still operational.

The High Court, through a three-judge bench consisting of Justices Alfred Mabeya, Robert Limo, and Fridah Mugambi, ruled that there was no public participation in coming up with the new healthcare programme.

The court ruled that the Social Health Insurance Act 2023, the Digital Health Act 2023, and the Primary Healthcare Act 2023 stood unconstitutional, null, and void.

This prompted the government to quickly move to the Court of Appeal to have the finding set aside.

The judges at the High Court noted that there were disparities in the new Social Health Insurance Act since it would burden a few salaried individuals by creating a disparity in the contributions.

The three-judge bench directed that Parliament should undertake adequate public participation in accordance with the Constitution before enacting the three laws.

The court allowed Parliament 120 days to correct the anomaly beginning July 12th, even though the same court stayed the finding for a further 45 days.

The judges further noted that various clauses in the act offend Article 43 of the Constitution, which obligates every Kenyan to be uniquely identified for purposes of the provision of health services.

The Court of Appeal judges return to the bench on September 20, 2024, to give a verdict on whether it will stay the High Court orders or not.