A new constitutional petition has been lodged at the High Court seeking to suspend the implementation of the contentious 2 per cent Health Information Management System (HIMS) utilisation fee. The case raises serious legal and constitutional questions about how the fee is imposed and managed within Kenya’s healthcare financing system.
The petition, filed by Nakuru-based surgeon Dr. Magare Gikenyi, Senator Okiya Omtata and Eliud Matindi, argues that the 2 per cent deduction from claims submitted by healthcare providers through the Social Health Authority (SHA) is unlawful. According to the petitioners, the levy lacks a clear legal foundation and amounts to an unconstitutional charge imposed without parliamentary approval. They are seeking conservatory orders to immediately halt the deductions until the court fully hears and determines the matter.
In their court filings, the petitioners argue that the HIMS utilisation fee effectively amounts to double taxation. They contend that the Constitution only allows the government to raise revenue through taxes and charges established by law, which must be properly budgeted and approved. The petition further states that no legislation has been cited to justify the 2 per cent charge, raising concerns about its legality and enforcement.
The case also highlights concerns about how the deducted funds are managed. The petitioners claim there is little to no transparency regarding where the money goes or how it is used. They allege that the funds may not be remitted to the Consolidated Fund and instead benefit undisclosed entities, a situation they argue undermines accountability in public finance management.
The petition cites multiple constitutional provisions, arguing that the fee violates principles of governance, public participation, and fair administrative action. The petitioners maintain that the levy was introduced without involving the public, contrary to constitutional requirements. They also claim that the deductions place an unfair financial burden on healthcare providers, which could ultimately lead to increased costs for patients.
Beyond financial issues, the petition raises questions about data protection, suggesting that patient information processed through the system could be exposed to unknown third parties. This, they argue, could be in breach of Kenya’s data protection laws. The petitioners emphasize that the matter is of great public importance, touching on healthcare access, constitutional governance, and the integrity of public institutions.
The petition points to the significant scale of the deductions, noting that by July 2026, SHA had processed tens of billions of shillings in claims. This translates into substantial sums collected through the 2 per cent fee, intensifying concerns about its legality and impact on the healthcare sector.
Dr. Gikenyi and his co-petitioners are urging the High Court to treat the case as urgent. They want the court to suspend the implementation of the fee immediately and fast-track the hearing to determine whether it meets constitutional standards. They argue that failure to act swiftly could result in continued financial losses and further strain on healthcare providers and patients.
The legal challenge against the HIMS utilisation fee sets the stage for a significant constitutional battle over healthcare financing in Kenya. As the High Court prepares to consider the petition, the outcome could have far-reaching implications for public finance management, healthcare delivery, and the enforcement of constitutional safeguards.
