- A three-judge bench on July 12 found two sections of the Social Health Insurance Act (SHIA) - which established SHA -unconstitutional.
- The Court of Appeal ruled in favour of the Ministry of Health affirming that its appeal holds merit.
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The Appellate court has allowed the rollout of the Social Health Authority to proceed on October 1 as planned.
The Court of Appeal ruled in favour of the Ministry of Health, affirming that its appeal holds merit.
“In these complex circumstances, we are inclined to grant a stay as the High Court decision is reviewed by this Court, pending an authoritative ruling on the validity of the three statutes,” the court said.
The Social Health Authority (SHA) is set to replace the 58-year-old National Health Insurance Fund (NHIF) effective October 1, 2024.
However, a three-judge bench on July 12 found two sections of the Social Health Insurance Act (SHIA), which established SHA—unconstitutional.
Justices Alfred Mabeya, Robert Limo, and Friday Mugambi termed as null and void Sections 26(5) and 27(4) of the Act, which state that a person can only access health services if their contributions are up-to-date and active, and that one must show proof of compliance with registration and contributions as a precondition for access to health services.
The judges further impugned the pieces of legislation on grounds of lack of public participation.
The court gave the government 120 days from the date of the judgment to fix the breaches of the law, which they found redeemable, and said, “If they fail to, the Act shall remain suspended.”
While staying the judgment, the Appellate court said: "We base this decision on the fact that these statutes have been in effect for nine months, and reverting to the old framework only to potentially return to the current one if the appeal succeeds would place this critical sector in a state of uncertainty.”
Transitioning NHIF to SHA is part of government efforts to roll out universal health coverage (UHC).
The Social Health Authority (SHA), is mandated to manage three funds that will replace NHIF.
These are the Primary Healthcare Fund, the Social Health Insurance Fund (SHIF), and the Emergency, Chronic, and Critical Illness Fund.
“As such, every Kenyan citizen, including dependents, is mandated by law to register as a member of the SHA,” acting SHA CEO Elijah Wachira, said in a public notice on September 18.
Members will contribute 2.75 per cent of their income to SHIF, while the government will pay for Kenyans who are unable to raise the premium.
“Payments received on or before October 9, 2024, will be credited to NHIF. Payments received from November 9, 2024, onwards will be credited to SHA,” Wachira said.