Court of Appeal Lifts Orders Blocking Kenya-US Health Cooperation Framework

The Court of Appeal has lifted orders blocking the implementation of Kenya’s health cooperation framework with the United States, ruling that the public interest in maintaining essential healthcare services outweighs the risks associated with suspending the programme.

In a decision delivered by a three-judge bench, the appellate court set aside conservatory orders issued by the High Court on December 19, 2025, which had halted implementation of the framework signed by Kenya and the United States on December 4, 2025.

The judges said continued suspension of the agreement could expose millions of people to disruptions in 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.”

The decision allows the government to proceed with implementation as it pursues an appeal against the High Court orders. However, the ruling does not settle the underlying constitutional dispute over the agreement.

Court Cites Risk to Essential Healthcare Services

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

The government argued that blocking the framework threatened the continuity of essential healthcare programmes and could affect approximately 1.4 million Kenyans who rely on medicines and healthcare support associated with the programme.

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

It also raised concerns about possible disruptions to immunisation, healthcare staffing, medical supply chains and broader service delivery systems.

The appellate judges agreed that the consequences of continued suspension could be irreversible, particularly if resources earmarked for the framework 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 concluded that the potential loss of the programme, alongside the risk to patients who depend on its services, supported allowing implementation to proceed while the legal proceedings continued.

Ruling Does Not Resolve Constitutionality of Agreement

Despite lifting the conservatory orders, the Court of Appeal emphasised that it had not made a final determination on whether the Kenya-US health framework complies with the Constitution.

The judges noted that the High Court had suspended implementation pending the determination of the constitutional petition but had not declared the agreement unconstitutional following a full hearing.

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

The distinction is significant because the appeal concerned whether implementation should remain suspended while the legal challenge proceeded, rather than whether the agreement was ultimately constitutional.

The substantive proceedings will therefore need to address the constitutional questions raised by the parties, including concerns about privacy, public finance, devolution and parliamentary oversight.

The appellate court said the government had demonstrated that its intended appeal raised legitimate issues requiring judicial consideration.

Omtatah Raises Data Protection and Parliamentary Oversight Concerns

Busia Senator Okiya Omtatah Okoiti opposed the government’s application, arguing that allowing the framework to proceed before the constitutional questions were resolved could undermine fundamental rights and public accountability.

Omtatah raised concerns about data protection, privacy, the management of public finances, the division of responsibilities between national and county governments, and Parliament’s role 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.

The provisions cited relate to constitutional sovereignty and supremacy, national values and principles of governance, privacy, socioeconomic rights, and principles governing public finance and public resource allocation.

Katiba Institute also opposed the government’s application, maintaining that constitutional safeguards and parliamentary oversight should not be set aside in the interest of expediting healthcare delivery.

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

These concerns place the case at the intersection of two important public interests: maintaining access to essential medical services and ensuring that international agreements comply with Kenya’s constitutional and accountability requirements.

Court Finds Grounds for Appeal Over High Court Proceedings

Beyond the substantive constitutional questions, the government challenged the procedure followed by the High Court when it issued the orders suspending the framework.

The Attorney General argued that the High Court heard the application on a date scheduled for directions rather than a formal hearing, allegedly without providing adequate notice to the applicants.

The government also argued that the proceedings breached the sub judice rule because similar issues had allegedly been addressed in another matter, Nairobi High Court Petition No. E806 of 2025.

The Court of Appeal 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 also noted the concerns surrounding the alleged breach of the sub judice rule, observing that conservatory orders appeared to have been issued in the other petition.

The findings indicate that the appellate court considered not only the possible consequences for healthcare delivery but also whether the legal process leading to the suspension should be reviewed.

Public Interest Weighs in Favour of Implementation

In determining the application, the court weighed the constitutional concerns raised by the respondents against the immediate healthcare needs of people who depend on services associated with the framework.

The judges concluded that the risk of disrupting essential treatment justified allowing the programme 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 also held that the intended appeal was arguable and that continued suspension could render it ineffective if the government eventually succeeded.

The court 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 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.

What the Decision Means for Kenya’s Health Sector

The ruling provides the government with the legal room to proceed with the Kenya-US health cooperation framework while the challenge to its constitutionality remains unresolved.

For patients who depend on HIV, TB and malaria treatment, immunisation and other supported services, continuity of healthcare is a central concern. Any interruption to treatment or medical supply chains could have consequences extending beyond individual patients to the wider public health system.

At the same time, the case raises broader questions about how Kenya negotiates and implements international health agreements, handles sensitive medical data, manages financial commitments and ensures parliamentary and public oversight.

The court’s decision does not eliminate those questions. Instead, it establishes that implementation may proceed at this stage while the parties continue litigating the constitutional issues.

The eventual determination of the substantive petition will be important in clarifying the legal boundaries governing the framework and the safeguards required to ensure that international health cooperation aligns with Kenya’s Constitution.

For now, the Court of Appeal has prioritised the immediate risk to essential healthcare services while leaving the fundamental constitutional dispute for determination through the ongoing legal process.