The High Court has declined to suspend the nationwide rollout of the Social Health Insurance Fund (SHIF), following a petition that sought to halt the programme.

The government launched the SHIF on Tuesday, replacing the National Health Insurance Fund (NHIF), as part of its strategy to provide universal health coverage.

Justice Bahati Mwamuye, in a ruling delivered on Tuesday, certified the petition brought forward by Busia Senator Okiya Omtatah and two others as urgent.

He, however, declined to grant a temporary order to halt the SHIF rollout, instead directing that the case be mentioned next week for further directions and the setting of a hearing date.

The petitioners are Senator Omtatah, lawyer Eliud Matindi, and Dr Magare Gikenyi, who argue that the programme was launched prematurely.

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“The notice of motion application dated 30/09/2024 be and is hereby certified urgent and it shall be heard on a priority basis,” stated the judge.

The petitioners contend that the government had not enacted the necessary subsidiary legislation to operationalise the Social Health Insurance Act (SHIA).

Omtatah argued in court, "The petitioners reiterate that the SHIF cannot be rolled out in the absence of enabling subsidiary legislation issued under the SHA Act and approved by Parliament to operationalise it."

Additionally, the petitioners raised concerns over the procurement process involving Safaricom and its consortium partner Apeiro Limited.

They questioned the transparency and legality of awarding a Sh104.8 billion tender to the Safaricom consortium to provide an Integrated Healthcare Information Technology System (IHTS) for Universal Health Care (UHC).

Omtatah alleged that the procurement process was rushed and lacked competitive fairness, claiming, “Unbelievably, upon alleged evaluation on the same date, the procuring entity issued a notification of intention to award contract under the letter Ref No. MOH/PROC/GEN/MF/ADSCMS/VOL.1 of 16th May 2024.”

The petitioners further accused government officials of involvement in a fraudulent scheme intended to siphon funds from the SHIF or, alternatively, from the Consolidated Fund, should the programme’s contributions fall short.

They claimed that the Safaricom consortium, particularly Apeiro Limited, masquerades as an investor yet would not inject any capital into the Kenyan economy, instead charging Kenyans for the software while retaining the rights to sell it to other parties.

Omtatah has urged the court to quash the subsidiary legislation currently in use, as well as to invalidate the contract awarded to Safaricom, stating, "Not only is the contract unlawful; Kenyans will not get any value for money from it."

The case is set for mention on 9th October 2024, with Omtatah instructed to serve the relevant court documents to Health Cabinet Secretary Deborah Barasa, Attorney General Dorcas Oduor, Safaricom, and Apeiro Limited.

The petition underscores broader concerns about the rollout of SHIF, with critics emphasising the need for legal clarity and transparency in government dealings to safeguard public resources.

This comes as many patients have reported being turned away from a variety of hospitals after their attempts to pay using NHIF cards were thwarted with the hospitals lamenting that they were yet to receive any clear instructions on the transition from NHIF to SHIF and SHA.