Court of Appeal lifts orders blocking Kenya-U.S health deal

The Court of Appeal has lifted conservatory orders blocking the implementation of Kenya’s health cooperation framework with the United States, ruling that public interest and the risk to millions of patients outweigh the concerns raised in the constitutional challenge.

A three-judge bench set aside orders issued by the High Court on December 19, 2025, which had stopped the government from implementing the framework signed by Kenya and the United States on December 4, 2025.

The appellate court held that suspending the agreement could jeopardise critical healthcare programmes, including treatment for HIV, tuberculosis (TB), malaria and other infectious diseases, as well as immunisation services.

“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.”

The decision followed an application by the Attorney General and the Cabinet Secretary for Health seeking to suspend the High Court orders pending the hearing and determination of their intended appeal.

The government argued that blocking the framework would disrupt essential health services and affect approximately 1.4 million Kenyans who depend on medicines and healthcare support linked to the programme.

In its application, the government warned that interruptions to HIV and tuberculosis treatment could lead to drug resistance, with potentially serious consequences for individual patients and public health.

It also cited possible disruptions to immunisation, healthcare staffing, service delivery systems and medical supply chains.

The judges agreed that the consequences of continued suspension could be irreversible, particularly if resources earmarked for the framework were redirected elsewhere 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 court said the government had demonstrated that its intended appeal raised legitimate issues requiring consideration, including whether the High Court properly handled the proceedings that led to the suspension.

The ruling does not determine the constitutionality of the Kenya-US agreement. Instead, it allows implementation to proceed while the government pursues its appeal against the conservatory orders.

Busia Senator Okiya Omtatah Okoiti, opposed the application, arguing that implementing the framework before resolving the constitutional questions could undermine fundamental rights and public accountability.

Omtatah raised concerns about data protection, privacy, public finance, devolution and the role of Parliament in approving international agreements that create binding obligations and financial commitments.

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 could not be sacrificed in the name of expediency in healthcare delivery.

The respondents further argued that the government had increased funding to address potential shortfalls in external health financing.

However, the Court of Appeal said the framework had not been declared unconstitutional following a full hearing and that the High Court had only suspended its implementation pending determination of the petition.

“There has not been any declaration of unconstitutionality of the said Framework,” the judges observed.

The court emphasised that the constitutional questions raised by the parties would have to be addressed in the substantive proceedings rather than conclusively determined at the interlocutory stage.

Beyond the healthcare implications, the government argued that the High Court had erred by hearing the application on a date set for directions rather than a formal hearing, without giving the applicants adequate notice.

It also contended that the proceedings breached the sub judice rule because similar issues had allegedly been addressed in another case, Nairobi High Court Petition No. E806 of 2025.

The appellate judges found that both arguments raised arguable grounds for 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 added that the alleged breach of the sub judice rule could not be ignored, noting that conservatory orders appeared to have been issued in the other petition.

In reaching its decision, the court considered the competing claims of constitutional compliance and the immediate healthcare needs of the population.

The appellate court concluded that the risk of disrupting essential treatment justified allowing the framework to proceed while the legal challenge remained pending.

“Public interest favours the implementation of the programme pending hearing of the appeal,” the judges ruled.

They added that the intended appeal was arguable and that the risk of losing the programme altogether could render the appeal ineffective if the government eventually succeeded.

The court had previously lifted the High Court orders on May 12, 2026, and said the substantive ruling would provide the reasons for that decision.

In its final orders, the Court of Appeal set aside the High Court's December 19, 2025, ruling and the conservatory orders restraining implementation of the framework, pending the intended appeal.