The High Court has ruled that the Social Health Authority (SHA) medical insurance rollout violated constitutional rights but allowed the programme to continue, citing potential disruption to essential health services.
Justice Bahati Mwamuye found the 2024 implementation infringed on Kenyans’ rights to health and human dignity, declaring certain aspects of the scheme unconstitutional. However, he stopped short of suspending the programme.
Instead of halting SHA, the court issued a structural interdict requiring the government to address gaps within 90 days.
The directives include safeguards to protect patients and ensure compliance with constitutional standards.
The Ministry of Health (MOH) must file a detailed affidavit within the same period, outlining corrective measures.
The affidavit should explain steps to guarantee emergency treatment is accessible to every Kenyan.
Justice Mwamuye emphasized that no Kenyan should be denied emergency medical care, regardless of employment status or ability to pay. Access to emergency treatment remains a constitutional right, the judge reiterated.
The court also criticized irregularities in the rollout of the Social Health Insurance Fund (SHIF), highlighting issues with the Integrated Health Technology System (IHTS).
Transparency and accountability were found lacking. Procurement and implementation processes, the ruling noted, did not meet constitutional requirements for reasonableness, openness, and justification, raising concerns about governance in projects of such magnitude.
Despite these concerns, the judge observed that the SHA programme is already operational, covering millions of Kenyans.
Halting it now, he said, could severely disrupt health service delivery nationwide.
The case was brought by activists including Magare Gikenyi and Okiya Omtatah, who challenged the legality of SHA.
They argued the rollout threatened access to healthcare and bypassed essential constitutional safeguards.
The ruling sets a precedent for balancing urgent public service delivery with constitutional compliance, forcing the government to fix gaps without interrupting ongoing healthcare services.
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