Activist Joseph Enock Aura now wants three Court of Appeal judges to recuse themselves from the case challenging the implementation of the new public health insurance introduced by the Ministry of Health.
The petitioner, represented by Lawyer Harrison Kinyanjui, is urging appellate court judges Patrick Kiage, Pauline Nyamweya, and Ngenye Macharia to disqualify themselves from further involvement in the case.
Perceived biases
This request stems from concerns over perceived biases and alleged executive interference following the judge's decision to grant a plea by CS Health Susan Nakhumicha for the implementation and enforcement of specific sections of the Social Health Insurance Act 2023.
"We have been instructed by our client to request the recusal from hearing this appeal by the three Judges Kiage, Nyamweya and Ngenye who on January 10, 2024, heard and on January 19, 2024, determined the Appellant's Civil Application No. E583 of 2023 (CS Health Vs Joseph Enock Aura & others) on the following bases of bias which Aura implicates his Constitutional Rights under Article 50(1) and 25(c) of the Constitution of Kenya, and he has thereby perceived will deprive him of a fair hearing in the subject appeal if presided by the same bench," Lawyer Kinyanjui states in an email sent to the Court of Appeal President.
Aura has accused the judges of pronouncing themselves on issues that had not been prayed for in the appeal by CS Nakhumicha.
"The Learned Judges allowed the said interlocutory application without a Notice of Appeal lodged by CS Health on the order of the High Court dated November 27, 2023, which order was being sought to be vacated (and was vacated in the aftermath) by the three Learned Judges of the Court of Appeal," he says.
According to the Activist, the unconstitutionality of the three new funds namely the Primary Healthcare Fund, Social Health Insurance Fund and Chronic Illness and Emergency Fund introduced under the new act challenged by him in the High Court was never delved into at the Court of Appeal by CS Nakhumicha yet the three judges ruled on the same.
Kinyanjui states that the decision by the three judges to lift orders of the High Court restraining the implementation and enforcement of the Social Health Insurance Act, 2023, the Primary Health Care Act, 2023 and the Digital Health Act, 2023 has since opened the full-throttle implementation of the impugned legislation in a manner endorsing the objections made by Aura in the pending Constitutional proceedings at the High Court thereby implicating the Right to a Fair Trial under Article 25(c) of the Constitution.
'Frankly am saddened by these Judges' ruling since the Court of Appeal hearing the said interlocutory Motion by the CS Health sunk into the arena of the said litigation and without being asked by the CS for Health or any party in the said proceedings to excise certain Sections in the Social Health Fund Act from implementation," he says
"The Judges cited Sections 27(4); 26(5); and 47(3) of the Social Health Fund Act as excised from implementation. No one made reference to these provisions, and whatever criteria the Judges applied to seclude these specific Sections and not the entire Act from implementation was not stated in their ruling of January 19, 2024," Kinyanjui adds.
Further, the petitioner says the three judges did not make the decision independently citing that there was interference from the executive since President William Ruto had made various public remarks haranguing the Judiciary after the High Court issued orders halting the implementation of the act.
"On the week leading to the delivery of the Court of Appeal ruling on January 19, 2024, in the appellant's Motion, a certain Hon. Member of Parliament had openly assured the President of the Republic of Kenya at a social function that she would ensure that the Judiciary fell in line, and did not make decisions contrary to the Government's agenda (legislative or otherwise)," Aura says.
Aggrieved by remarks
Being aggrieved by the remarks and acts of the politicians in Kenya Kwanza's administration, Aura says he immediately wrote an email to the President of the Court of Appeal and copied to all the parties, including Chief Justice Martha Koome lamenting about this open intrusion by the executive into the Constitutional space of the Fair Administration of Justice by the Judiciary.
"Our client did not receive any response from the Judiciary and no addressing of the said issue was ever done. To our Client, those threats by the executive appear to have informed the Court of Appeal's decision rendered on January 19 2024 in the said proceedings," the email by Lawyer Kinyanjui reads.
The petitioner also wants the three judges kicked from handling the matter accusing them of proceeding to hurriedly set the case for hearing on March 14, 2024, which he claims is not the practice in all other appeals pending before the Court of Appeal.
"In the eyes of our client, this direction of fixing the case for hearing in two weeks in particular meant to him (and to the ordinary objective by-passer it would imply) that this specific bench of the stated Court of Appeal Judges has a vested determination and is decided to determine the stated appeal with a preconceived outcome in mind," Kinyanjui states.
The petitioner says that there are other numerous equally urgent appeals of great and monumental public interest lodged earlier than the appeal by CS Health and which appeals have remained pending without attracting similar preferential lightning-speed fast-tracking as this appeal.
He says that justice must not only be done but also seen to be done to all as enriched under Article 159(2)(a) of the Constitution.
"Our Client has hence instructed us to communicate the foregoing so that the Hon. President of the Court of Appeal can deal with the issue early enough," Kinyanjui states.
On January 19, 2024, the Court of Appeal lifted orders stopping the implementation and enforcement of the Social Health Insurance Act 2023 pending the hearing and determination of CS Nakhumicha's appeal.
"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 pending the hearing and determination of the applicant’s( CS Nakhumicha's) appeal in Civil Appeal No. E984 of 2023," The court of Appeal judges ruled.
In their ruling, the judges said some provisions of the Social Health Insurance Act including including 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 hospital entities that shall remain suspended pending the 'hearing of the case.
Other sections that the appellate judges have declined their implementation under the act include 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 and Section 47(3) which obligates every Kenyan to be uniquely identified for purposes of provision of health services.
"We are concerned at the arguably irreversible effect of some of the provisions of the Social Health Insurance Act identified in activist Joseph Aura’s prayers in the Petition. We have therefore isolated them and they shall therefore remain suspended, even as the rest of that statute, and the other two suspended statutes, are unshackled for operationalization and enforcement pending the hearing and determination of the appeal," the three judges ruled.
While lifting the orders the Appellant court judges concurred with CS Nakhumicha's averments that if the court does not intervene 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 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 judges stated.
The court decision came after Nakhumicha through Senior Counsel Fred Ngatia urged the court to consider issuing temporary reliefs as they retire to write their ruling to alleviate the burden being experienced by patients countrywide owing to the effect the order has had.
