NAIROBI, Kenya, Aug 19 – The High Court in Vihiga has declined to issue interim orders suspending a 2 percent HIMS System Utilization Fee deducted from claims payable to healthcare providers under the Social Health Authority (SHA), citing a missing supporting affidavit in the application.
Justice R. Nyakundi said the court could not consider the petitioners’ request for conservatory orders because the Notice of Motion was not accompanied by a properly filed and sworn supporting affidavit.
The petitioners, led by Dr Magare Gikenyi Benjamin and Eliud Matindi, had challenged the deduction and sought orders suspending it pending the hearing and determination of their petition.
The petitioners argued that the 2 percent fee was introduced without a legal or statutory basis and without public participation, while also raising concerns over the use of health providers’ funds and patient data.
They further sought orders compelling the respondents to stop deducting the fee and refund money already deducted from healthcare providers.
The petitioners claimed the deductions amounted to an unlawful charge and argued that there was no legislation or statutory authority allowing the levy.
However, Justice Nyakundi said the dispute involved contested questions of fact, including when and by whom the fee was introduced, the legal instrument supporting it, the role of Finsprint Limited, the amounts deducted and the alleged prejudice to healthcare providers.
He said such facts must be presented through sworn evidence, noting that claims contained in a certificate of urgency or grounds on the face of a motion do not constitute evidence.
The judge consequently said the court could not apply the established test for conservatory orders without an evidential foundation.
Rather than dismissing the case, the court gave the petitioners an opportunity to regularise their application.
The petitioners have been directed to file and serve a supporting affidavit, together with all documents relied upon, within seven days. They must also serve the petition, Notice of Motion, Certificate of Urgency and ruling on all respondents and interested parties and file an affidavit of service.
The matter was scheduled for mention on August 18 to confirm compliance and give further directions on the application and petition.
The ruling was delivered at the Vihiga High Court on August 14, 2026.
