Court of Appeal lifts orders blocking Kenya-U.S health deal
President William Ruto (left) witnesses the signing of Kenya-USA health deal signed by Prime CS Musalia Mudavadi and US Secretary of State Marco Rubio on December 4, 2025. Photo/PCS
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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.

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