A fresh constitutional petition has been filed at the High Court seeking to suspend the implementation of a controversial 2 per cent Health Information Management System (HIMS) utilization fee deducted from claims submitted by healthcare providers through the Social Health Authority (SHA).
The petition, filed by Nakuru-based surgeon Dr. Magare Gikenyi J. Benjamin, together with Busia Senator Okiya Omtatah and Eliud Matindi, argues that the levy is unconstitutional, illegal and amounts to double taxation.
The three petitioners are seeking conservatory orders stopping the deduction of the 2 per cent HIMS utilization fee pending the hearing and determination of the case.
They also want the court to bar the respondents, their agents or any other persons from implementing or enforcing any letter, circular, gazette notice or directive authorising the deduction of the fee from healthcare providers’ claims processed under the SHA system or any related digital platform.
According to the petition, Dr. Gikenyi discovered the deductions on April 8, 2026, while providing services at an SHA-accredited health facility. He says he subsequently wrote to the Social Health Authority, the Digital Health Authority, the Ministry of Health and the National Treasury on July 1, 2026, seeking the legal basis for the deductions, but none of the institutions provided a response identifying the law authorising the levy.
The petitioners argue that the respondents have failed to identify any legislation establishing the 2 per cent HIMS utilization fee or explain how the money collected is managed, accounted for and appropriated.
They contend that Articles 209 and 210 of the Constitution only permit the government to impose taxes and charges established by law, maintaining that the HIMS fee is an unlawful charge imposed without parliamentary approval.
The petition further claims the levy was introduced without public participation, contrary to Articles 10 and 232 of the Constitution, and questions how the government arrived at the 2 per cent rate, arguing that no research, formula or public justification has been disclosed.
The petitioners also argue that the deductions violate constitutional principles of public finance by increasing the cost of healthcare, placing an additional financial burden on healthcare providers and ultimately affecting patients.
They further claim there is no transparency on where the deducted funds are remitted, alleging that the money benefits unidentified private entities instead of being paid into the Consolidated Fund.
The petition cites alleged violations of several constitutional provisions, including Articles 1, 3, 10, 27, 28, 31, 43, 46, 73, 75, 94, 95, 109, 201, 209, 210 and 232. It also alleges that the deductions expose patients’ personal data to unknown entities in violation of the Data Protection Act.
According to the court papers, SHA had disbursed approximately KSh60.7 billion in healthcare claims by July 2026, meaning the disputed 2 per cent deduction could have generated more than KSh1.2 billion.
The petitioners argue that the deductions have no legal foundation and should be suspended to prevent continued collection of public funds under an unlawful framework.
They maintain that the case raises significant constitutional questions on public finance, taxation and the administration of Kenya’s healthcare system, and have asked the High Court to certify the matter as urgent, suspend the implementation of the disputed fee and fast-track the hearing of the petition.
