The petitioner argues that the fee deducted from claims submitted by healthcare providers through the Social Health Authority (SHA) is unconstitutional, illegal and a form of double taxation.
The petition has been filed by Nakuru-based surgeon Dr. Magare Gikenyi J. Benjamin, Senator Okiya Omtata and Eliud Matindi.
The three petitioners seek immediate conservatory orders to halt the deduction of the 2 per cent HIMS utilisation fee pending the hearing and determination of the case.
“That the 2% HIMS System Utilization fee is not based on any legislation. In any event, the 2010 constitution architecture does not allow government to do business with its own people except through taxes and charges which are all consolidated together, budgeted and appropriated,” reads court papers.
They further want the court to prohibit 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.
Dr. Magenyi argues that he discovered the deductions on April 8, 2026 while attending to patients at a SHA-accredited health facility.
He claims that upon noticing 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. Still, none of the institutions provided a legal basis for the levy.
The petition contends that the respondents have failed to identify any legislation authorising the deduction of the 2 per cent HIMS utilization fee or explain how the money is collected, managed and appropriated.
Dr. Gikenyi, Senator Omtata and Matndi argue that Articles 209 and 210 of the Constitution only permit the government to raise revenue through taxes and charges established by law, insisting that the HIMS utilization fee amounts to an unlawful “charge on a charge” that lacks parliamentary approval.
They also allege that the fee was introduced without public participation, contrary to Articles 10 and 232 of the Constitution, and question how the government settled on the 2 per cent rate, arguing that no research, formula or public justification has ever been disclosed.
The petitioners further claim that the levy violates principles of prudent public finance management by imposing additional financial burdens on healthcare providers and ultimately increasing the cost of healthcare services.
He argues that there is no transparency or accountability regarding the destination of the deducted funds and alleges that the deductions benefit unidentified private entities rather than the Consolidated Fund.
Among the constitutional violations cited in the petition are alleged breaches of 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 amount to unlawful taxation without legislation, violate consumers’ economic rights, discriminate against healthcare providers, undermine public confidence in government institutions and expose patients’ personal data to unknown entities in breach of the Data Protection Act.
The petition also raises concerns over the scale of the deductions, alleging that by July 2026 SHA had disbursed approximately KSH.60.7 billion in claims, translating to more than KSh1.2 billion collected through the disputed 2 per cent fee.
The petitioner claims the deductions have no legal foundation and should be suspended to prevent continued loss of public funds.
Dr. Gikenyi maintains that the matter is one of significant public interest because it concerns constitutional governance, public finance and the administration of Kenya’s healthcare system.
He asks the High Court to certify the application as urgent, suspend the implementation of the disputed fee and fast-track the hearing of the petition to determine whether the levy is constitutional.
