Health Cabinet Secretary Nakhumicha Wafula, Council of Governors (CoG) Health Committee Chairman Tharaka Nithi Governor Muthomi Njuki and Council of Governors (CoG) CEO Mary Mwiti.


Governors have opposed the implementation of the new Social Health Insurance Fund (SHIF) dealing a blow to President William Ruto’s plan for universal health care.

In submissions filed in court, the Council of Governors (CoG) opposed the roll-out of the programme through the Social Health Act, arguing that some of the provisions are unconstitutional.

“Further, that the primary Health Act usurps County Government in health service delivery and in the interest of justice, the court finds that the petition is merited and should be allowed,” CoG pleads in court documents.

The petition was filed by activist Joseph Aura through lawyer Harrison Kinyanjui as he challenged the implementation of the Social Health Insurance Act, 2023, which repealed National Hospital Insurance Fund (NHIF) and established three new funds.

CoG says the national government ought to respect the functional and institutional integrity of county governments without unwarranted interference.

According to CoG, the Primary Health Care Act, 2023 usurps the role of the County Governments and jeopardizes on the constitutionally assigned health service delivery function in violation of the Fourth schedule of the Constitution.

The governors said the role of the National Government are clearly defined and limited as provided for in the Fourth Schedule of the Constitution as read together with section 15 of 11 the Health Act.

Among its roles include to develop and maintain an organizational structure of the Ministry at the national level comprising of technical directorates.
CoG adds that Minister of Health cannot purport to prescribe for County Governments the establishment of various governance and administrative structures.

Sections 17(1); 18(1), 19(1): 20(1) of the Primary health care Act require County Governments to establish governance and administrative structures including community health units in accordance with national guidelines.

“We submit that this amounts to usurpation of the County Governments’ mandate which is detrimental to their operations and places unnecessary financial burden upon Counties with the already strained resources,” says Council of Governors.

Furthermore, County Governments have already existing structures which can effectively deliver the stated functions and the National Government ought to respect the functional and institutional integrity of the County Governments.

“It is our submission that these mandated financial commitments impose additional financial burden on County Governments, which may adversely impact their ability to efficiently carry out essential functions and services and the principle that resources must follow functions is a cornerstone of effective governance, ensuring that the allocation of resources aligns with the responsibilities and functions of each level of government,” adds the council of Governors.

CoG told Justice Enock Mwita that the mandatory contribution by County Governments under the challenged sections deviates from this fundamental principle, potentially leading to a strain on the Counties’ financial resources and the concerns as raised by CoG were not considered despite the grave implication on county Governments as highlighted hereinabove.

“In light of the foregoing, we urge this court to find and hold that the impugned provisions of the Social Health Insurance Act as outlined hereinabove are unconstitutional,” CoG urged the court.

CoG adds that that a statute enacted by parliament cannot purport to take away constitutionally guaranteed rights, freedoms and mandates from both citizens and County Governments and it is as section 27(4) of the Social Health Insurance Act requiring that all contributions shall be active and up to date in order to access health care services poses a great threat to the constitutional right of citizens to access emergency Health treatment.

The CoG says the sections are in contravention of Article 43(2) of the Constitution which provides that no person shall be denied emergency medical treatment

“In the same vein the 7th Respondent submits that Section 47(3) of the Social Health Insurance Act violates the constitutional right of citizens to health by requiring every Kenyan to be uniquely identified using biometrics for purposes of provision of health services,” the governors said.

The right to health is a fundamental right which equally finds expression in regional and international law which form part of the Kenyan law by dint of Article 2 (6) of the Constitution and as such, Statute cannot purport to limit this constitutional right, the CoG said.

Aura is seeking  declaration do issue that Sections 26(5), 27(1)(a), 27(4), 38, and 47(3) of the Social Health Insurance Fund Act, 2023, are inconsistent with the Constitution of Kenya, and therefore null and void to the said extent.

He wants the court to declare that in purporting to confer upon unlicensed, unqualified and arbitrarily appointed “Community Health Promoters” the critical responsibility of grass root primary health care across Kenya’s counties, the Primary Health Act, 2023 sabotages the realization by Kenyans of quality health care pursuant to Article 43(1)(a) of the Constitution of Kenya.×300&!5&btvi=4&fsb=1&dtd=146

The activist further wants the court to declare that there having been no Report availed to the National Assembly of Kenya by the Commission of Revenue Allocation to the Public pursuant to Article 205(1) of the Constitution of Kenya for consideration under Article 205(2) of the Constitution of Kenya before the voting on the Social Health Insurance Fund Bill, 2023, the Social Health Insurance Act, 2023 is null and void.