The Court of Appeal overturns the High Court order blocking the 2.75% health levy and other provisions

The Court of Appeal delivered its ruling in the Cabinet Secretary for Health vs Joseph Enock Aura and ors., which was an application for a stay of execution and/or implementation of the orders of the High Court barring the implementation of the Social Insurance Health Fund Act, 2023, the Primary Health Care Act, 2023 (discussed on the following link, i.e., and the Digital Health Act, 2023 (discussed on the following link, i.e., The court carefully considered the arguments presented by both the petitioner and the respondents and made several key findings.

First, the court acknowledged the serious and contentious nature of the constitutional and statutory issues raised in the original petition before the High Court. It recognized the potential impact on the public interest, particularly in relation to the implementation of healthcare-related statutes and the potential harm to citizens if the regulatory framework was suspended.

Second, the court addressed the jurisdictional issue raised by the respondent’s counsel, establishing that the court did indeed have jurisdiction to consider the application for a stay based on the notice of appeal filed against the orders of the High Court.
Third, the court assessed whether the petitioner had an arguable appeal and whether the appeal was likely to be rendered nugatory without the orders being granted. The court found that the appeal raised bona fide points of law and fact and that there was a real and present danger to the health rights of countless citizens, satisfying this requirement.

Finally, the court granted the motion for a stay of execution, suspending the orders of the High Court restraining the implementation and enforcement of certain statutes. The court also set out specific provisions of the Social Health Insurance Act that would remain suspended pending the hearing and determination of the appeal.

Overall, the decision demonstrates a careful consideration of the legal and public interest factors at play, and the court’s detailed analysis and reasoning provide a clear and reasoned basis for the ruling. Additionally, the decision, though it did not state so, was a victory for the doctrine of separation of powers. This is because these three legislations came from Parliament, the legislative arm of Government and as such, a High Court should ideally presume that a legislation is constitutional, until it is proved beyond a reasonable doubt to be unconstitutional. The presumption of the constitutionality of legislation by Parliament is a long-standing principle upheld by countries with a written Constitution, including Kenya.

The decision is available on the following link, i.e.,

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