NAIROBI,Kenya Aug 4 – A fresh constitutional petition has been filed at the High Court seeking to suspend the implementation of a controversial two 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 Benjamin, Busia Senator Okiya Omtatah and Eliud Matindi, argues that the deduction is unconstitutional, illegal and amounts to double taxation.The three petitioners are seeking conservatory orders stopping the continued deduction of the fee pending the hearing and determination of the case.In court documents, they argue that the two per cent HIMS utilization fee lacks any legal basis and has been introduced without legislation authorizing its collection.“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,” the petition states.The petitioners are also seeking orders barring the respondents, their agents or any other persons from implementing or enforcing any letter, circular, gazette notice or directive authorizing the deduction of the fee from claims processed under the SHA or any related digital health platform.According to the court papers, Dr. Gikenyi says he first 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 seeking the legal basis for the deductions, but none of the institutions responded with an explanation.The petition argues that the respondents have failed to identify any law authorizing the levy or explain how the money collected is administered, managed or appropriated.The petitioners contend that Articles 209 and 210 of the Constitution only permit the government to impose taxes and charges established by legislation, arguing that the HIMS utilization fee amounts to an unlawful levy imposed without parliamentary approval.They further argue that the fee was introduced without public participation as required under Articles 10 and 232 of the Constitution and question how the government arrived at the two per cent rate, saying no formula, study or public justification has been provided.According to the petition, the deductions impose an additional financial burden on healthcare providers, increase the cost of healthcare services and offend constitutional principles governing prudent public finance management.The petition also raises concerns over the management of the funds, alleging there is no transparency on where the money is remitted and claiming the deductions benefit unidentified private entities instead of the Consolidated Fund.The petitioners further allege that the deductions violate several constitutional provisions, including those relating to public finance, equality, consumer rights, public participation, accountability and data protection. They argue that patients’ personal information could be exposed to unknown entities contrary to the Data Protection Act.The court documents estimate that SHA had disbursed about Sh60.7 billion in healthcare claims by July 2026, meaning the disputed two per cent deduction could have generated more than Sh1.2 billion.The petitioners argue that unless the court intervenes, the continued deductions will result in the unlawful collection of public funds and ongoing financial losses to healthcare providers.They have asked the High Court to certify the matter as urgent, suspend implementation of the disputed fee through conservatory orders and fast-track the hearing of the petition to determine whether the levy complies with the Constitution.