The High Court of Kenya has directed the Ministry of Health Kenya to ensure that no Kenyan is denied emergency medical treatment, regardless of employment status or ability to pay, in a landmark ruling addressing concerns over the country’s evolving healthcare system.
In a judgment delivered by Justice Bahati Mwamuye, the court underscored that access to emergency healthcare is a constitutional right that must be upheld universally.
Court Raises Concerns Over SHA Rollout
The ruling also scrutinised the implementation of the Integrated Health Technology System (IHTS) under the Social Health Authority (SHA), which operates under the Social Health Insurance Fund (SHIF) framework replacing the defunct National Health Insurance Fund (NHIF).
The court found that the rollout of the system fell short of constitutional standards, citing lack of transparency, insufficient justification, and procedural irregularities in a project of such national importance.
“The manner in which the system was initially implemented fell short of the reasonableness demanded by the Constitution,” Justice Mwamuye stated.
It also emerged that the system was rolled out nationally before the necessary infrastructure was fully in place, raising concerns over preparedness and compliance with legal requirements.
Government’s Position
The government, represented by Senior Counsel Kioko Kilikumi, had argued that halting the programme would trigger a major crisis in the health sector. The state maintained that SHIF is critical in replacing the repealed NHIF framework and ensuring continuity in healthcare coverage.
System to Continue with Reforms
Despite identifying irregularities, the court declined to nullify the programme, noting that it is already operational and serves millions of Kenyans. The judge warned that suspending it would risk disrupting access to essential health services.
Instead, the court ordered the Ministry of Health to address all identified gaps within 90 days and align the system with constitutional requirements.
Mandatory Compliance Measures
The Ministry has been directed to:
- Guarantee access to emergency treatment for all Kenyans, including non-salaried individuals
- Submit a comprehensive affidavit within 90 days outlining corrective actions
- Establish safeguards to ensure no patient is turned away during emergencies
Petition and Legal Challenge
The case was filed by Okiya Omtatah, alongside Eliud Karanja Matindi and Dr. Magare Gikenyi, who argued that SHIF was implemented without adequate legal backing and that some patients had already been denied care.
Constitutional Implications
The court held that the shortcomings in the system directly impact constitutional rights, particularly the right to health and human dignity. The ruling reinforces the government’s obligation to ensure equitable access to healthcare while maintaining transparency and accountability in public health reforms.
