Social Health Insurance Authority.The High Court has struck out a petition challenging the rollout of the Social Health Insurance Fund (SHIF), marking a significant development in the legal battle over the government’s new healthcare financing model.
Justice Chacha Mwita ruled that the petition, filed by four doctors led by Doctor Clarence Eboso Mweresa, could not proceed due to ongoing cases at the Court of Appeal and the High Court that touch on similar issues.
The judge found that the matter was “subjudice” which means it involved issues already pending before courts of competent jurisdiction.
“The issues raised in this petition are already pending before the Court of Appeal and in Petition E513 of 2024. Proceeding to determine them now would risk conflicting decisions and render this court’s findings academic. For that reason, the petition is struck out,” Justice Mwita ruled.
The petitioners had sought to declare mandatory registration and contribution to the SHIF unconstitutional, arguing that the Social Health Insurance Act (SHIA) violated fundamental rights, including privacy, equality, and protection of private property.
They also raised concerns over a 2.75 percent deduction on gross income for all Kenyans, employed and unemployed alike, and the automatic transfer of personal data from the defunct National Health Insurance Fund (NHIF) without consent.
But Justice Mwita on Monday held that determining the petition would amount to pre-empting decisions in Civil Appeal No. E565 of 2024, where the Court of Appeal is considering the constitutionality of SHIA and its implementing laws.
Additionally, another petition—E513 of 2024—is pending before the High Court, challenging the legality of the regulations guiding SHIF’s implementation.
He added that ruling on the matter now would risk conflicting decisions and undermine judicial coherence.
“Consequently, and for the above reasons, this petition is struck out. As this is public interest litigation, each party shall bear their own costs," Justice Mwita stated.
Although he did not make a finding on the constitutionality of the mandatory contributions, the judge observed that deducting 2.75 percent from gross income after income tax introduces a negative element of taxation and would amount to double taxation.
"In that regard, by providing that a person contributes 2.75 percent of his/her gross income to the Fund after paying income tax from the same gross income, the regulation introduces a negative element of taxation, which is double taxation and would, as a result, make such a regulation unlawful. However, since the issue of the legality of the regulations is pending in petition E513 of 2024, I will not say more on the issue," Justice Mwita said.
However, he declined to rule on the matter substantively, citing the pending cases.
The ruling is a temporary reprieve for the government, which has faced mounting legal and public resistance over SHIF.
The Court of Appeal had earlier granted a stay of execution on a separate High Court ruling that declared the SHIA and related health laws unconstitutional for lack of public participation.
