The Lower Eastern Times Opening The Third Eye
A fresh constitutional petition has been lodged at the High Court seeking to halt the enforcement of a contested 2 percent Health Information Management System (HIMS) utilization fee.
The petitioners argue that the fee, deducted from claims submitted by healthcare providers through the Social Health Authority (SHA), is unconstitutional, unlawful, and amounts to double taxation. The case was filed by Nakuru-based surgeon Dr. Magare Gikenyi J. Benjamin, alongside Senator Okiya Omtata and Eliud Matindi.
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The trio is seeking immediate conservatory orders to suspend the deduction of the fee pending the hearing and determination of the case. According to the court filings, the 2% HIMS System Utilization fee has no basis in any legislation, arguing that under the 2010 Constitution, the government is barred from transacting with citizens outside of properly consolidated, budgeted, and appropriated taxes and charges.
The petitioners further want the court to bar the respondents, their agents, or any other party from implementing or enforcing any letter, circular, gazette notice, or directive that authorizes the deduction of the fee from healthcare providers’ claims processed through the SHA system or any related digital platform.
Dr. Gikenyi says he first noticed the deductions on April 8, 2026, while attending to patients at a SHA-accredited health facility. He claims that after spotting the deductions, he sought clarification from SHA, the Digital Health Authority, the Ministry of Health, and the National Treasury through a letter dated July 1, 2026, but none of the institutions provided a legal justification for the levy.
The petition asserts that the respondents have been unable to point to any law authorizing the 2 percent deduction or explain how the collected funds are managed and allocated. Citing Articles 209 and 210 of the Constitution, the petitioners argue that the government may only raise revenue through taxes and charges established by law, describing the HIMS fee as an unlawful “charge on a charge” that lacks parliamentary approval.
They also allege that the fee was rolled out without public participation, in violation of Articles 10 and 232 of the Constitution, questioning how the 2 percent rate was arrived at in the absence of any disclosed research, formula, or public justification.
The petitioners further contend that the levy breaches principles of prudent public finance management by piling additional costs onto healthcare providers, ultimately driving up the price of healthcare services. They claim there is no transparency regarding where the deducted funds end up, alleging the money may be benefiting unidentified private entities rather than being channeled into the Consolidated Fund.
The petition cites alleged violations of numerous constitutional provisions, including Articles 1, 3, 10, 27, 28, 31, 43, 46, 73, 75, 94, 95, 109, 201, 209, 210, and 232. The petitioners argue that the deductions constitute unlawful taxation without legislative backing, infringe on consumers’ economic rights, discriminate against healthcare providers, erode public trust in government institutions, and expose patients’ personal data to unknown parties in violation of the Data Protection Act.
The petition also flags the scale of the deductions, noting that by July 2026, SHA had disbursed approximately Sh60.7 billion in claims — translating to more than Sh1.2 billion collected through the disputed fee. The petitioners maintain that the deductions lack any legal foundation and should be suspended to prevent further loss of public funds.
Dr. Gikenyi insists the matter carries significant public interest given its implications for constitutional governance, public finance management, and the administration of Kenya’s healthcare system. He has asked the High Court to certify the application as urgent, suspend implementation of the disputed fee, and expedite the hearing to determine the levy’s constitutionality.
