NAIROBI, Kenya Oct 13 – The Court of Appeal has cleared the way for the implementation of Kenya’s health cooperation framework with the United States, overturning High Court orders that had blocked the programme over constitutional concerns.
A three-judge bench set aside conservatory orders issued on December 19, 2025, ruling that the public interest in maintaining essential healthcare services outweighed the risks associated with allowing the programme to proceed while the legal dispute remains unresolved.
The judges warned that continued suspension of the framework could disrupt critical healthcare services, including treatment for HIV, tuberculosis (TB), malaria and other infectious diseases, as well as immunisation programmes.
“The lives of citizens who depend on treatment for HIV, TB, and malaria, provided under the Framework risk being negatively and irredeemably impacted,” the judges ruled.
“Some even risk losing their lives which is an irreversible consequence,” they added.
The framework was signed by Kenya and the United States on December 4, 2025, and is linked to the provision of essential medicines, healthcare support and other services relied upon by millions of Kenyans.
The government, through the Attorney General and the Cabinet Secretary for Health, had moved to suspend the High Court orders pending the hearing and determination of its intended appeal.
In its application, the government warned that blocking the agreement threatened healthcare programmes serving approximately 1.4 million Kenyans.
It argued that interruptions to HIV and tuberculosis treatment could contribute to drug resistance, exposing patients to further complications and creating broader public health risks.
The government also cited the potential disruption of immunisation services, healthcare staffing, medical supply chains and systems supporting service delivery.
The appellate court agreed that the consequences of maintaining the suspension could be irreversible, particularly if resources allocated to the programme were redirected before the appeal was determined.
“If the applicants succeed on appeal, there will be no Framework to implement which will render the appeal nugatory,” the court stated.
The judges consequently found that the balance of public interest favoured allowing the framework to proceed as the government pursued its appeal.
“Public interest favours the implementation of the programme pending hearing of the appeal,” the ruling stated.
The decision followed opposition from constitutional activist Okiya Omtatah Okoiti, who argued that allowing the framework to proceed before the constitutional challenge was resolved could undermine fundamental rights and public accountability.
Omtatah raised concerns about data protection, privacy, public finance, devolution and Parliament’s role in approving international agreements that impose binding obligations and financial commitments on Kenya.
He argued that the framework could violate Articles 1, 2, 10, 31, 43, 201 and 220 of the Constitution.
Katiba Institute also opposed the government’s application, maintaining that constitutional safeguards and parliamentary oversight should not be set aside in the interest of expediency in healthcare delivery.
The respondents further argued that the government had increased funding to address potential shortfalls arising from changes in external health financing.
However, the appellate court emphasised that the framework had not been declared unconstitutional following a full hearing of the petition.
“There has not been any declaration of unconstitutionality of the said Framework,” the judges observed.
The court clarified that its decision did not settle the substantive constitutional dispute but addressed whether the orders blocking implementation should remain in force pending the appeal.
The questions surrounding the agreement’s legality, including the constitutional concerns raised by Omtatah and Katiba Institute, will therefore remain subject to determination in the substantive proceedings.
Beyond the potential healthcare disruptions, the government challenged the manner in which the High Court proceedings were conducted.
It argued that the application resulting in the conservatory orders had been heard on a date set for directions rather than a formal hearing, without adequate notice to the government.
The government also alleged that the proceedings breached the sub judice rule because similar issues had been raised in Nairobi High Court Petition No. E806 of 2025.
The Court of Appeal found that both arguments raised arguable grounds requiring consideration in the intended appeal.
“The case was indeed heard on a day that was fixed for directions, and whether the Court was correct in proceeding to hear the application before giving a formal hearing date, is an arguable point,” the ruling stated.
The judges also noted the alleged sub judice issue, observing that conservatory orders appeared to have been issued in the other petition.
The court’s findings did not amount to a final determination of those grounds but established that the intended appeal raised issues warranting consideration.
The Court of Appeal had previously lifted the High Court orders on May 12, 2026, indicating that the substantive ruling would provide the reasons for its decision.
In its final orders, the appellate court set aside the High Court’s December 19, 2025, ruling and the conservatory orders restraining implementation of the framework, pending the intended appeal.
The latest decision allows the government to proceed with the health cooperation programme while the wider legal challenge continues.
The central constitutional questions, including the framework’s implications for privacy, public finance, devolution and parliamentary oversight, remain unresolved.
The court’s decision was anchored on the potential consequences of interrupting essential healthcare services and the risk that the intended appeal could become ineffective if the programme could no longer be implemented by the time the dispute is finally determined.