𝗧𝘂𝗲𝘀𝗱𝗮𝘆, 𝗠𝗮𝗿𝗰𝗵 𝟱, 𝟮𝟬𝟮𝟰

A petition regarding three recently enacted Laws including the Social Health Insurance Act will now be heard by a three judge bench following an application by the National Assembly and the Senate on account of the weight of matters raised.

High Court Judges , Justice Alfred Mabeya, Justice Robert Limo and Justice Freda Gathiru Mugambi will now hear the petition challenging the constitutionality of the Social Health Insurance Act, the Primary Healthcare Act and the Digital Health Act, 2023.

The petition was filed by Mr. Joseph Enock Aura, following the assent to the Bills enacting the three laws by His President William Ruto.

Clerk of the Senate and Secretary, Parliamentary Service Commission (PSC), Mr. Jeremiah Nyegenye and Clerk of the  National Assembly, Mr. Samuel Njoroge in affidavits filed before the court argued that the petition raises substantial questions of law, that would be best handled by a three judge Bench.

Mr. Njoroge told the court in his affidavit that the petition waded into constitutional issues relating to the lawful mandate of the Parliament of Kenya and the Executive, and thus had raised substantial questions of law.

"The issues raised in the petition are of general public importance as they concern performance of constitutional functions and exercise of powers by Parliament of the Republic of Kenya and the Executive while undertaking their lawful mandates in accordance with the provision of the constitution," stated Mr. Njoroge. 

On his part Mr. Nyegenye, indicated that the petition had raised sensitive issues related to personal data usage and protection that necessitated empanelment of the three judge bench to render a judgement on matters raised.  

"The petition herein raises matters that call for a multisectoral approach to managing matters of healthcare including data privacy and information and communication technology which raise significant questions of law," argued Mr. Nyegenye 

Upon hearing all the parties, High Court Judge Chacha Mwita, acceded to the request by the two Houses on 23rd February 2024, and forwarded the request on constitution of the bench to the Chief Justice and President of the Supreme Court, Lady Justice Martha Koome.

Consequently, Justice Koome empaneled the three judge bench to hear the petition.

The National Assembly is represented in the petition by Ms. Sandra Nganyi, while the Senate is represented by Ms. Mercy Thanji.

Other respondents in the petition are the President sued through the Office of the Attorney General, Ministry of health and that of Information, Communication and Digital Economy, Social Health Authority, Commission on Revenue Allocation, the Council of Governors (CoG), Health records and Information Managers Board, the Clinical Officers Council  of Kenya, the Clinical Medical Practitioners and Dentists Council (CMPDC) and the Kenya Medical Association (KMA).