Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) [2024] KEHC 8436 (KLR)

Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) (Constitutional Petition E473 of 2023) [2024] KEHC 8436 (KLR) (Constitutional and Human Rights) (12 July 2024) (Ruling)

Neutral citation: [2024] KEHC 8436 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E473 of 2023

A Mabeya, RK Limo & FG Mugambi, JJ

July 12, 2024

IN THE MATTER OF ARTICLES 165 (3) (B) & (D), 258(1) (A) & (C) OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF ALLEGED CONTRAVENTION OF VARIOUS ARTICLES OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF THE SOCIAL HEALTH INSURANCE ACT AND IN THE MATTER OF THE DIGITAL HEALTH ACT AND IN THE MATTER OF THE PRIMARY HEALTH CARE ACT AND IN THE MATTER OF THE HEALTH ACT

Between

Joseph Enock Aura

Petitioner

and

Cabinet Secretary, Ministry of Health

1st Respondent

Cabinet Secretary, Ministry of Information, Communication & Digital Economy In Kenya

2nd Respondent

Social Health Authority

3rd Respondent

Commission on Revenue Allocation

4th Respondent

National Assembly of Kenya

5th Respondent

The Senate

6th Respondent

Council Of Governors

7th Respondent

The Attorney-General

8th Respondent

Office of the Data Protection Commissioner

9th Respondent

Clinical Officers Council of Kenya

10th Respondent

Health Records & Information Managers

11th Respondent

Attorney-General

12th Respondent

and

Kenya Medical Practitioners & Dentist Council

Interested Party

Kenya Medical Association

Interested Party

Ruling

1. We have considered the application for stay of the suspension of the impugned Acts. We have also considered the submissions in opposition by the petitioner.

2. We appreciate the concerns raised by the respondents with the order for suspension. We have also appreciated that the suspension may create a lacuna on matters health in this country even as parties seek to comply with our judgment. It is for that reason that we are inclined to allow a temporary stay of the suspension for 45 days as requested.

3. However, the stay granted shall not affect the suspension of sections 26 (5) and 27 (4) of SHIA in light of our finding on their unconstitutionality.It is so ordered.

DATED, SIGNED AND DELIVERED IN NAIROBITHIS 12TH DAY OF JULY, 2024. ……………………………ALFRED MABEYAJUDGE……………………………ROBERT LIMOJUDGE……………………………DR. FREDA MUGAMBIJUDGE