The Court of Appeal on Friday, January 19 lifted orders issued by the High Court restraining the implementation of the Social Health Insurance Act, 2023, The Primary Health Care Act, 2023, and The Digital Health Act, 2023.

Justices Patrick Kiage, Pauline Nyamweya and Grace Ngenye ruled the suspension — which specifically affected the roll out of the new health fund — created a confusion (lacuna) and the risk of harming citizens.

“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 court documents read in part.

This means that the rollout of the new fund introduced by President William Ruto’s administration to replace the National Hospital Insurance Fund (NHIF) will proceed.

But…

However, the suspension comes with specific conditions outlined by the Court of Appeal. 

Certain provisions of the Social Health Insurance Act will remain suspended until the resolution of the ongoing appeal. They include;

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 provision of health services.” Ruled the court.

Strict timelines

The court also set strict timelines for the submission of written arguments.

The Applicant/Appellant and all parties in support of the appeal are required to file and serve their written submissions within 7 days from today.

The 1st Respondent is required to file and serve within 7 days of being served with the Appellant’s submissions.

Ideally, the court directed that the Appellant shall file Rejoinder submissions if any, within 5 days of being served by the 1st Respondent.

Therefore, the Registrar of the Court will subsequently allocate a hearing date for Civil Appeal on a priority basis, with a deadline no later than March 31, 2024.

Health Cabinet Secretary Susan Nakhumicha had moved to the appellate court and pleaded with the judges to lift the suspension, arguing that the suspension created a vacuum and confusion in the health sector as NHIF has since been replaced.

The CS further submitted that millions of patients who depended on the NHIF for treatment cannot access the services, interfering with the government’s plan to implement the Universal Health Coverage and provide quality and affordable healthcare for all Kenyans.