The Court of Appeal has lifted orders that were issued by the High Court suspending the implementation of the Social Health Insurance Act which is set to replace the NHIF Act.

In their verdict delivered on Friday, Justices Patrick Kiage, Pauline Nyamweya and Grace Ngenye ruled that owing to the suspension of the roll-out of the new health fund, 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...," reads the court documents. 

"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...," ruled the judges.

However, Section 26(5) of the Act which makes registration and contribution a precondition for dealing with or accessing public services from the national and county governments or their entities and 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 remain suspended.

Section 47(3) which obligates every Kenyan to be uniquely identified for purposes of provision of health services also remains suspended, according to the ruling.

The parties in the case have been granted seven days to file written submissions on the three Sections of the Social Health Insurance Act that remain suspended. 

The Registrar of the Appellate Court shall thereafter allocate a hearing date before 31st March 2024.

Health Cabinet Secretary Susan Nakhumicha moved to the Court of Appeal arguing that the High Court order had resulted in many Kenyans being denied medical care against the provisions of the Constitution.

Through Senior Counsel Fred Ngatia, the Health Cabinet Secretary said the court orders had disenfranchised many Kenyans who were now unable to access medical care since the enactment of the Social Health Insurance Act, 2023 repealed the NHIF Act, imploring the court not to allow legal wars to deny Kenyans a Constitutional right.

The Attorney General, through his lawyer, also pleaded with the court saying many patients were hurting and that while the court’s decision was being waited upon, the existing orders be lifted.

The Kenya Medical Practitioners and Dentists Union (KMPDU) in its case argues that the government has gone ahead with the implementation of the Social Health Insurance Fund Act 2023, the Primary Health Care Act 2023 and the Digital Health Act 2023 without engaging stakeholders to resolve the contentious issues.