The Court of Appeal has lifted orders blocking the implementation of Kenya’s health cooperation framework with the United States, ruling that the potential disruption to essential medical services and the risk to patients outweighed the concerns raised in the ongoing constitutional challenge.
A three-judge bench set aside conservatory orders issued by the High Court on December 19, 2025, which had suspended the framework signed by Kenya and the United States on December 4, 2025.
The appellate court said continued suspension of the agreement could jeopardise healthcare programmes covering HIV, tuberculosis (TB), malaria, immunisation and other infectious diseases.
“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, warning that some patients could lose their lives if essential services were disrupted.
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 the suspension threatened healthcare support for approximately 1.4 million Kenyans who depend on medicines and services linked to the programme.
It also warned that interruptions to HIV and TB treatment could contribute to drug resistance, while disruptions could affect 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 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 government also argued that the High Court had erred in handling the proceedings that led to the suspension, including hearing the application on a date scheduled for directions rather than a formal hearing.
It further contended that the proceedings breached the sub judice rule because similar issues had allegedly been raised in Nairobi High Court Petition No. E806 of 2025.
The Court of Appeal found that both arguments raised arguable grounds that warranted 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 judges said.
The appellate court also noted concerns about the alleged sub judice violation, observing that conservatory orders appeared to have been issued in the other petition.
However, the ruling does not determine the constitutionality of the Kenya-US health cooperation framework. It allows implementation to proceed as the government pursues its appeal against the High Court orders.
Okiya Omtatah Okoiti opposed the application, arguing that implementing the framework before the constitutional questions were 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 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 should not be bypassed in the interest of expediting healthcare delivery.
The respondents further argued that the government had increased funding to address potential shortfalls in external health financing.
In its decision, the Court of Appeal emphasised that the framework had not been declared unconstitutional following a full hearing. The High Court had suspended its implementation pending the determination of the constitutional petition.
“There has not been any declaration of unconstitutionality of the said Framework,” the judges observed.
The court said the substantive constitutional questions would have to be addressed in the main proceedings rather than conclusively determined at the interlocutory stage.
It added that the public interest favoured allowing the programme to proceed while the appeal was pending, citing the potential consequences of disrupting essential healthcare services.
“Public interest favours the implementation of the programme pending hearing of the appeal,” the judges ruled.
The court had previously lifted the High Court orders on May 12, 2026, indicating that the reasons for its decision would be provided in the substantive ruling.
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, allowing the programme to proceed as the legal challenge continues.
