The Court of Appeal is scheduled to render a decision on whether to suspend an order that halted the enactment of the Social Health Insurance Act 2023 next week Friday.
Although Senior Counsel Fred Ngatia, representing Health CS Susan Nakumicha, had sought interim relief during the proceedings, Judges Patrick Kiage, Pauline Nyamweya, and Ngenye Macharia opted not to grant any temporary measures while awaiting the final ruling.
Susan Nakumicha had emphasized the urgent need for provisional remedies to alleviate the widespread challenges faced by patients nationwide due to the impact of the existing order.
During a proceeding extending beyond three hours, Ngatia successfully convinced the court to rescind the overarching order, citing its adverse impact on patients in need of medical care.
Ngatia argued that the nationwide incapacity to secure pre-authorization for treatment stemmed from the discontinuation of NHIF operations and the subsequent legal hindrance placed on the succeeding Act by the High Court.
Last November, the High Court issued a conservatory order halting the Act’s implementation and scheduled a hearing for February 7 this year. Notably, the order was issued ex parte, precluding the participation of the parties being sued in the matter.
Ngatia expressed perplexity at the finality of the conservatory order, emphasizing the unconventional nature of granting such an order without affording all parties an opportunity to be heard.
Before the appellate judges, Ngatia highlighted that the consequence of the order was depriving Kenyans of their constitutional right to access healthcare.
“Please grant favor today and suspend the blanket order. Spare the patients from becoming casualties in our legal battles,” pleaded Ngatia.
Both the Attorney General and the President expressed support for the Health CS’s application. Counsel Emmanuel Bita contended that the High Court’s order undermined an established framework designed to provide essential services for the benefit of Kenyans.
Bita underscored the absence of a transition mechanism due to the suspension of the Act, describing the current situation as a vacuum that is adversely affecting patients across the country.
