High court halts mandatory registration of students into SHIF

In its argument, LSK told the court that the directive issued by the Ministries of Education and Health, and the Attorney General was unlawful.

The government issued a circular on August 16, 2024, directing regional and county education officials to ensure that parents register their children as dependents under SHIF before the start of the new school term.

However, Justice Jairus Ngaah, who certified the LSK’s case as urgent, issued an order stopping the directive.

“Status quo before the issue of the challenged directive of August 16, 2024, shall be maintained pending hearing and determination of the substantive motion or further orders of the court,” Justice Ngaah stated.

The LSK argued that it infringed on children’s rights by potentially denying them access to basic education, as it required registration under a law that is not currently in force.

LSK also pointed to a High Court ruling made in July 2024, where Justices Alfred Mabeya, Robert Limo, and Fridah Mugambi declared the Social Health Insurance Act unconstitutional. The court had given Parliament 120 days to revise the Act, emphasising that sufficient public participation was needed before any amendments could be enacted.

The Act in question had previously called for the compulsory registration of all Kenyans under SHIF, but this provision remains controversial.

“The orders to that judgment have not been complied with, and in any event, the Social Health Insurance Fund Act remains suspended and of no legal consequence,” LSK said.

The case will be heard inter-parties on October 8.

Meanwhile, the Ministry of Health has noted that it remains hopeful the Court of Appeal will uphold the significance of the three health laws it suspended when it delivers its ruling on Friday.

The Ministry expressed confidence that the implementation of the Social Health Insurance Act (SHIA), along with the Primary Health Care Act and Digital Health Act—which were intended to replace the National Hospital Insurance Fund (NHIF)—will proceed under the time given for Parliament to re-enact the laws.

Despite concerns about the upcoming court case challenging the roll-out of the Social Health Authority (SHA) scheduled for October 1, the Ministry said it is optimistic that Parliament will support the health scheme.

“Now with the Stay of Order of 45 days that we were granted, it means that the Acts are still active and therefore we will continue implementing them,” Medical Services PS Harry Kimtai said during a media SHA immersion meeting in Nairobi on Wednesday.

The PS revealed that a formal appeal has been filed, and Friday’s ruling will address this application.

“That ruling will be issued on September 20,” the PS said, expressing hope that the Ministry’s request will be granted, allowing for continued implementation of the Acts until the case is resolved.

However, he noted that if the Stay of Order is overturned, the Ministry would rely on the 120 days granted to Parliament to re-enact the laws.

“So what we are saying is that we are still within the threshold, and waiting for the ruling,” he said.

Health Cabinet Secretary Deborah Barasa encouraged more Kenyans to register for SHA membership, noting that those already enrolled will begin to benefit from the enhanced scheme starting October 1.