Nairobi — The Court of Appeal has extended a stay on a High Court order halting transition from National Health Insurance Fund (NHIF) to Social Health Insurance Fund (SHIF).
In a ruling delivered by a three-judge bench, Appellate Court Judges -- Justices Francis Tuiyott, Justice Ali Aroni and Lydia Achode -- ordered the status quo be maintained until September 20, when the court will deliver a ruling.
Wednesday's decision means three statutes anchoring SHIF -- Digital Health Act, Primary Healthcare Act and Social Health Insurance Act -- will remain in force and operational.
The bench however exepmted Sections 26(5) and 27 of the Social Health Insurance Act.
"The status quo means an extension of the interim orders issued by the High Court on July 12, 2024 staying the order for suspension of the three health statutes up to August 26, 2024 with exception of sections 26(5) and 27 of the Social Health Insurance Act," National Assembly said in a note following the ruling.
Section 26 (5) provides that: "Any person who is registerable as a member under
this Act shall produce proof of compliance with the provisions of this Act on registration and contribution as a precondition of dealing with or accessing public services from the national government, county government or a national or county government entities."
Section 27 of the Act provides for persons liable to contribute to the Fund and penalties for non-compliance.
The National Assembly had launched an application together with the Ministry of Health contesting the suspension of the statutes.
Coordinated response
The two presented cordinated arguments at the High Court defending the legislative process leading to the enactment of the three health laws.
The High Court declared the Social Health Insurance Act unconstitutional in a ruling on July 12 citing unmet public participation threshold.
A three-judge bench comprising Justices Alfred Mabeya, Robert Limo, and Fridah Megabit ruled that the Act lacked adequate public participation and contained disparities that rendered it invalid.
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The bench said the government did not carry out public participation, a fundamental principle enshrined in the Constitution.
Highlighting disparities within the Act, the bench suspended the nullification of the Act for 120 days to allow Parliament time to remedy the situation.
"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 bench directed at the time.
