High Court orders Health ministry to ensure no one is denied emergency treatment

In a judgment delivered by Justice Bahati Mwamuye, the court emphasized that access to emergency healthcare is a constitutional right that must be guaranteed to all, regardless of employment status or ability to pay.

The government, through Senior Counsel Kioko Kilikumi, had argued that a looming monumental crisis in the health sector and a regulatory vacuum would occur if SHIF was not allowed to proceed, as it was designed to replace the repealed National Health Insurance Fund (NHIF) Act, adding that the petition should be dismissed.

The judge noted that the implementation of the health system fell short of constitutional standards, citing a lack of transparency and insufficient justification in a project of such magnitude.

The court found that some procedural safeguards were not adequately demonstrated, amounting to irregularities in the process.

"The manner in which the system was initially implemented fell short of the reasonableness demanded by the Constitution. At the same time, a court must remain conscious of the present reality that the SHIF system is now operational and serves millions of Kenyans," said Justice Mwamuye. 

It also emerged that the national rollout of the system was undertaken before the necessary infrastructure had been fully put in place, raising questions about preparedness and compliance with legal requirements.

The court held that these failures implicated the State’s constitutional obligations, particularly the right to health and human dignity.

However, the judge declined to nullify the system, noting that it is still ongoing and forms a key component of the government’s efforts to achieve universal healthcare. The court warned that stopping the programme would jeopardize access to health services for millions of Kenyans.

Instead, the Ministry of Health has been directed to urgently address the identified gaps and streamline the system to align with constitutional requirements within 90 days.

The court further ordered the Ministry to file a comprehensive affidavit within 90 days outlining the corrective measures taken, including clear safeguards to ensure that emergency treatment is accessible to all Kenyans, especially those seeking emergency treatment.

"Within 90 days, file a comprehensive affidavit to remedy the deficiency that no person is denied emergency treatment. are not salaried," the court noted.

Petitioners in the case were  Senator Okiya Omtatah, Eliud Karanja Matindi, and Dr. Magare Gikenyi, who argued that SHIF was implemented without the necessary enabling legislation and that patients were being turned away.