The Court of Appeal has lifted orders blocking the implementation of Kenya’s health cooperation framework with the United States, citing the potential impact on millions of patients who rely on essential medical services.
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 US on December 4, 2025.
The ruling allows the government to proceed with implementation while the legal challenge continues, but it does not settle the question of whether the agreement is constitutional.
Court Warns of Risks to HIV, TB and Malaria Treatment
In its decision, the appellate court said suspending the framework could disrupt 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.
The bench warned that some patients could face life-threatening consequences if essential treatment were interrupted.
The government had argued that blocking the framework could affect approximately 1.4 million Kenyans who depend on medicines and healthcare support linked to the programme.
It also warned that interruptions to HIV and TB treatment could contribute to drug resistance, posing risks to individual patients and public health.
Other concerns raised by the government included possible disruptions to medical supplies, healthcare staffing, service delivery systems and immunisation programmes.
Why the Government Went to the Court of Appeal
The Attorney General and the Cabinet Secretary for Health sought to suspend the High Court orders pending the hearing and determination of their intended appeal.
The government argued that the consequences of maintaining the suspension could be irreversible, particularly if resources intended for the programme were redirected before the appeal was heard.
“If the applicants succeed on appeal, there will be no Framework to implement which will render the appeal nugatory,” the court stated.
The judges found that the intended appeal raised arguable legal questions, including whether the High Court had properly handled the proceedings that led to the suspension.
They noted that the application had been heard on a date initially set for directions, raising questions about whether the parties had received adequate notice of a formal hearing.
The government also argued that the proceedings raised concerns under the sub judice rule because similar issues had allegedly been addressed in another case, Nairobi High Court Petition No. E806 of 2025.
The appellate court found that these issues warranted consideration during the appeal.
Okiya Omtatah, Katiba Institute Oppose Implementation
The application faced opposition from Okiya Omtatah Okoiti and Katiba Institute, who argued that implementation should not proceed before the constitutional questions surrounding the agreement were resolved.
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 maintained that constitutional safeguards and parliamentary oversight should not be bypassed in the interest of urgently delivering healthcare services.
The respondents further argued that the government had increased funding to address possible shortfalls in external health financing.
However, the Court of Appeal stressed that the framework had not been declared unconstitutional after a full hearing.
“There has not been any declaration of unconstitutionality of the said Framework,” the judges observed.
The court clarified that the substantive constitutional questions would need to be addressed in the ongoing proceedings rather than conclusively determined at the interlocutory stage.
What the Ruling Means for Kenyans
The decision removes the immediate court orders that had prevented implementation of the Kenya-US health cooperation framework.
The government can therefore proceed while pursuing its intended appeal, with the court placing significant weight on the risk that suspending healthcare programmes could have serious consequences for patients.
The ruling does not mean that the agreement has been finally upheld as constitutional. Concerns raised by Omtatah, Katiba Institute and other parties remain subject to determination through the legal process.
The judges concluded that the public interest favoured allowing the programme to proceed pending the appeal, warning that continued suspension could undermine the very services the framework was intended to support.
The Court of Appeal had previously lifted the High Court orders on May 12, 2026, indicating that the substantive ruling would later explain the reasons for the 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.
