Kenyans are now left without a choice but to grapple with the ramifications of the Court of Appeal's decision to lift the orders suspending the implementation of the Social Health Insurance Act, replacing the National Health Insurance Fund (NHIF).

The ruling, delivered on Friday afternoon, follows an appeal by Health Cabinet Secretary Susan Nakhumicha.

In their verdict, Justices Patrick Kiage, Pauline Nyamweya, and Grace Ngenye expressed concern over the suspension's impact on the health rights of countless citizens not involved in the litigation.

"We think that given what has been sworn by the CS 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," declared the appellate court, signalling a significant shift in the ongoing legal battle.

"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."

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The appellate court emphasized the real and present danger posed by the suspension, leading them to lift the orders restraining the implementation of the Social Health Insurance Act, Primary Health Care Act, and Digital Health Act.

"In light of what has been sworn by the CS, 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," the court stated.

The implementation of the Act had been halted in November last year following a petition by Joseph Enock Aura.

Nakhumicha appealed to the Court of Appeal, arguing that the suspension had created a vacuum and confusion in the health sector, especially as NHIF had been replaced.

She emphasized the adverse effects on millions of patients who depend on NHIF for treatment, hindering the government's Universal Health Coverage (UHC) program.

"The applicant is aggrieved by the order and seeks to lodge an appeal before this honourable court to set aside the said orders so as to seal the legal vacuum and afford millions of Kenyans access to healthcare," stated  Nakumicha in the application.

However, certain sections of the Act, including Section 26(5), requiring registration and contribution for accessing public services, and Section 27(4), linking healthcare access to active contributions, remain suspended. Section 47(3), mandating unique identification for health services, is also suspended.

The parties involved in the case have been given seven days to file written submissions on the three suspended sections.

The Registrar of the Appellate Court will allocate a hearing date before March 31, 2024.

Nakhumicha argued that the High Court order had resulted in many Kenyans being denied medical care against constitutional provisions.

Senior Counsel Fred Ngatia, representing Nakhumicha, urged the court not to let legal battles deny Kenyans their constitutional right to healthcare.

Attorney General Justin Muturi, through his lawyer, also pleaded for the lifting of existing orders, emphasizing the urgency as patients were suffering.

Meanwhile, the Kenya Medical Practitioners and Dentists Union (KMPDU) contended that the government had implemented the Acts without engaging stakeholders to address contentious issues.

The legal saga continues, impacting the healthcare landscape for millions of Kenyans.