The Court of Appeal has cleared the way for the implementation of Kenya’s health cooperation agreement with the United States to resume pending the determination of an appeal against orders that had suspended the deal over constitutional concerns.
In a ruling dated October 9, 2026, appellate judges Lydia Kimaru, Munyao Sila and Dr J.O. Okello set aside orders issued by the High Court on December 19, 2025, which had barred the government from implementing the Health Cooperation Framework signed by Kenya and the US on December 4, 2025.
The decision follows an application by Attorney General Dorcas Oduor and the Cabinet Secretary for Health seeking to suspend the High Court orders pending an appeal challenging the decision.
The judges said the government had demonstrated that its intended appeal raised arguable issues and that allowing the suspension of the agreement to continue could undermine the programme before the appeal was heard.
“We are satisfied that there are arguable grounds,” the court stated, adding that it would not make a final determination on the constitutionality of the framework at that stage because those issues would be considered in the appeal or the substantive petition pending before the High Court.
The judges noted that the High Court had issued conservatory orders before hearing the petition in full and had not declared the agreement unconstitutional. “What the High Court did was to stop its implementation pending hearing of the question whether or not the same was unconstitutional,” the court observed.
The government had argued that the suspension threatened critical health services, including the treatment of people living with HIV, tuberculosis and malaria, as well as immunisation programmes and other interventions against infectious diseases.
In its application, the government said the framework was intended to support approximately 1.4 million Kenyans who rely on medicines and health services linked to the programme. It warned that continued interruption of treatment could expose patients to drug resistance, worsen public health outcomes and, in some cases, lead to deaths that could not be reversed.
The court agreed that the potential consequences of maintaining the suspension were significant, particularly for patients who depend on continuous treatment.
On the question of whether the appeal would be rendered nugatory if the stay was not granted, the judges observed that the framework risked collapsing and resources being redirected elsewhere while the appeal was pending. The court said such a development could leave the government without a programme to implement even if it eventually succeeded in its appeal.
The judges also found that public interest favoured allowing the agreement to proceed, given the potential consequences for Kenyans dependent on treatment for HIV, tuberculosis and malaria. “Public interest also favours the applicants,” the court stated, adding that the lives of citizens relying on treatment provided under the framework risked being adversely and irreversibly affected.
The government’s application was opposed by constitutional activist Okiya Omtatah Okoiti and Katiba Institute, who raised concerns over the agreement’s compliance with the Constitution, protection of personal data, parliamentary oversight and the management of public finances.
Omtatah argued that the framework created financial commitments and regulatory obligations that required parliamentary approval and raised questions under the Data Protection Act. He also contended that no data protection impact assessment had been conducted before the agreement was executed and that the arrangement risked encroaching on devolved functions.
Omtatah and Katiba Institute maintained that public interest required constitutional compliance, transparency and accountability, arguing that the need to deliver health services could not justify bypassing constitutional safeguards. They further disputed the government’s position that the agreement was a continuation of existing arrangements, maintaining that it was a new framework with significant legal and financial implications.
The government, however, argued that similar concerns had been addressed in another High Court petition and accused the court of proceeding with the hearing on a date set for directions rather than a formal hearing.
The Court of Appeal found that these procedural questions were arguable grounds that deserved consideration during the substantive 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.
They also noted concerns over the sub judice rule, pointing to conservatory orders that had reportedly been issued in another petition, Nairobi Petition No. E806 of 2025. The judges emphasised that the ruling did not resolve the substantive constitutional dispute, which remains subject to further determination.
The High Court had initially suspended implementation of the framework on the grounds that the court needed an opportunity to examine its constitutionality and legality before it could be operationalised. In granting the conservatory orders, the High Court had held that implementing the agreement before resolving the petition could undermine the court’s ability to provide an effective remedy if constitutional violations were eventually established.
The Court of Appeal subsequently lifted the orders on May 12, 2026, and delivered its reasons in the ruling dated October 9.
