- The same applies to the orders restraining the implementation of the Primary Health Care Act, 2023, and the Digital Health Act, 2023.
- The court however singled out three provisions of the Social Health Insurance Act which will remain suspended pending the hearing and determination of the appeal.
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The Court of Appeal has suspended orders that had stopped the implementation of the Social Health Insurance Act, 2023.
The same applies to the orders restraining the implementation of the Primary Health Care Act, 2023, and the Digital Health Act, 2023.
"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...," the ruling reads.
Court of Appeal Judges Patrick Kiage, Pauline Nyamweya and Ngenye Macharia however singled out three provisions of the Social Health Insurance Act which will remain suspended pending the hearing and determination of the appeal.
These 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.
The High Court issued the conservatory orders on November 27, 2023, stopping implementation of the Act and fixed the case for hearing on February 7 this year.
The order was issued ex parte meaning parties sued in the matter were not allowed to be heard.
"In the meantime, a conservatory order is hereby issued restraining the respondents, their agents, or anyone acting on their directives from implementing and enforcing The Social Health Insurance Act 2023, The Primary Health Care Act, 2023, and The Digital Health Act, 2023 until February 7, 2024," the orders read.
They were issued following a case lodged by activist Joseph Enock, who through his lawyer Harrison Kinyanjui, told the court that the Social Health Insurance Act 2023 is unconstitutional.
He said the Executive usurped the role of the Parliament when enacting the new law and there was no proper public participation before its enacting.
Following the ruling, Health CS Susan Nakhumicha moved to the Court of Appeal saying the decision was negatively impacting some 17 million members of the National Health Insurance Act.
Through Senior Counsel Fred Ngatia, the CS said patients across the country can't get pre-authorization for treatment because NHIF ceased to operate and the succeeding Act was blocked by the High Court.
The Acts were signed into law by President William Ruto on October 19, 2023.