The government suffered a major setback after the Court of Appeal on Wednesday declined to lift orders stopping implementation and enforcement of the Social Health Insurance Act 2023 as introduced by the Ministry of Health until January 19, 2024.
A three-judge bench composed of justices Patrick Kiage, Pauline Nyamweya and Ngenye Macharia declined a plea by CS Health Susan Nakhumicha to suspend the High Court orders that halted the new health plan pending their substantive ruling on Friday next week on her appeal.
"We decline to issue any orders at this point on this appeal pending our ruling on the lengthy submission made by the parties. We will render our ruling on Friday, January 19, 2024," Justice Kiage stated.
This is 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.
"I urge you to kindly consider the thousands of patients who are suffering in the country as they seek treatment. We are in a lacuna and please find favour and set aside the orders, let those in hospitals deal with diseases and not be part of this legal battle…it is for the benefit of Kenyans who rely on this national insurance,” Ngatia informed the court.
During the hearing that lasted for more than five hours, Ngatia persuaded the three judges to lift the blanket order issued by the High Court on November 27, 2023, as it has hurt thousands of patients seeking treatment, denying them their fundamental rights to health.
Ngatia stated that patients across the country cannot get pre-authorization for treatment because NHIF ceased to operate and the succeeding Act was blocked by the High Court.
According to the government, the High Court Judge Chacha Mwita erred in law by giving the orders ex-parte that halted its plans to implement the new health insurance fund.
"It is an error as the order granted was final. It is difficult to comprehend how a court can issue a conservatory order, which should be ordinarily granted after hearing all parties There is a vacuum since we wonder whether should a court strike down legislation," Ngatia said.
Attorney General Justin Muturi and President Wiliam Ruto were in support of the application by CS Health to have the orders vacated saying that the effect of that order is that Kenyans are not able to access Healthcare which is a right guaranteed to them under the constitution.
"We are in a vacuum and it is hurting patients in the country," the court heard.
The Attorney General and the President through lawyer Emmanuel Bitta told the judges that there’s no transition mechanism since the entire act was suspended.
However, the petitioners' activist Joseph Enock and the Kenya Medical Practitioners and Dentists Council (KMPDC) strongly opposed the application sought by the government arguing that there is no lacuna.
Led by lawyer Harrison Kinyanjui they urged the appellant judges not to vacate the orders as the same are properly issued by the court after considering their petitions.
Social Health Insurance Act unconstitutional
Kinyanjui told the judges that the Social Health Insurance Act 2023 is unconstitutional since the Executive usurped the role of the Parliament when enacting the new law.
He stated that there was no proper public participation before the said law was enacted and therefore should not be implemented.
