[2024] KEHC 8436 (KLR)

Source-derived case information.

Citation: [2024] KEHC 8436 (KLR)
Parties: Applicant: Joseph Enock Aura; Respondent: Cabinet Secretary, Ministry of Health; Respondent: Cabinet Secretary, Ministry of Information, Communication & Digital Economy In Kenya; Respondent: Social Health Authority; Respondent: Commission on Revenue Allocation; Respondent: National Assembly of Kenya; Respondent: The Senate; Respondent: Council Of Governors; Respondent: The Attorney-General; Respondent: Office of the Data Protection Commissioner; Respondent: Clinical Officers Council of Kenya; Respondent: Health Records & Information Managers; Respondent: Attorney-General; Interested Party: Kenya Medical Practitioners & Dentist Council; Interested Party: Kenya Medical Association
Court: High Court
Court Station: High Court at Nairobi (Milimani Law Courts)
Jurisdiction: Kenya
Case Number: Constitutional Petition E473 of 2023
Procedural Posture: Stay Application / Ruling on Application for Stay of Suspension of Statutes
Outcome: Temporary stay of suspension of the impugned Acts granted for 45 days, except for sections 26(5) and 27(4) of the Social Health Insurance Act, whose suspension remains in effect.
Judges: A Mabeya, RK Limo, FG Mugambi
Legal Topics: Suspension of Legislation, Constitutionality of Statutes, Health Law Reform, Judicial Stay Orders
Source Language: en

Constitutional Law Administrative Law Suspension of Legislation Constitutionality of Statutes Health Law Reform Judicial Stay Orders

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Parties

Joseph Enock Aura

Applicant

Cabinet Secretary, Ministry of Health

Respondent

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

Respondent

Social Health Authority

Respondent

Commission on Revenue Allocation

Respondent

National Assembly of Kenya

Respondent

The Senate

Respondent

Council Of Governors

Respondent

The Attorney-General

Respondent

Office of the Data Protection Commissioner

Respondent

Clinical Officers Council of Kenya

Respondent

Health Records & Information Managers

Respondent

Attorney-General

Respondent

Kenya Medical Practitioners & Dentist Council

Interested Party

Kenya Medical Association

Interested Party

Procedural Posture

Stay Application / Ruling on Application for Stay of Suspension of Statutes

Legal Issues

1 Whether a temporary stay of the suspension of the Social Health Insurance Act, Digital Health Act, Primary Health Care Act, and Health Act should be granted pending compliance with the court's judgment.
2 Whether the suspension of sections 26(5) and 27(4) of the Social Health Insurance Act should remain in effect due to their unconstitutionality.

Ratio Decidendi

The court determined that while the suspension of the impugned Acts could create a legal lacuna in the health sector, it was necessary to balance the need for orderly compliance with the judgment against the imperative to uphold the Constitution. Accordingly, the court granted a temporary stay of the suspension of the Acts for 45 days to allow parties to comply with the judgment. However, the stay expressly excluded sections 26(5) and 27(4) of the Social Health Insurance Act, which were found unconstitutional and whose suspension remained in force. The court's reasoning was guided by the need to avoid disruption in health governance while ensuring that unconstitutional provisions do not...

Court Disposition

Temporary stay of suspension of the impugned Acts granted for 45 days, except for sections 26(5) and 27(4) of the Social Health Insurance Act, whose suspension remains in effect.

Orders

A temporary stay of the suspension of the Social Health Insurance Act, Digital Health Act, Primary Health Care Act, and Health Act is granted for 45 days.
The stay does not affect the suspension of sections 26(5) and 27(4) of the Social Health Insurance Act, which remain suspended due to unconstitutionality.

Full Case Text

Judgment text and source record

47 paragraphs

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

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