The Court of Appeal has cleared the way for the Kenyan government to resume implementing its health cooperation framework with the United States, citing the potential impact of continued delays 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 blocked the implementation of the agreement signed by Kenya and the US on December 4, 2025.
The judges ruled that public interest and the risk of disrupting critical healthcare programmes justified allowing the framework to proceed as the government pursues its appeal.
The court warned that keeping the agreement suspended could have serious consequences for patients receiving treatment for HIV, tuberculosis (TB), malaria and other infectious diseases. The judges also pointed to possible interruptions to immunisation services and other healthcare programmes that depend on the framework.
“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.
They added that some patients could lose their lives, describing such an outcome as irreversible.
The decision followed an application by the Attorney General and the Cabinet Secretary for Health, who asked the appellate court to suspend the High Court orders pending the hearing and determination of their intended appeal.
The government argued that the suspension threatened essential medical services used by approximately 1.4 million Kenyans. It warned that interruptions to HIV and tuberculosis treatment could lead to drug resistance, making infections more difficult to manage and creating further risks for public health.
The government also raised concerns about possible disruptions to medical supplies, healthcare staffing, service delivery systems and immunisation programmes.
It maintained that delaying implementation could affect the availability of resources needed to sustain these services.
The judges agreed that the continued suspension could undermine the programme before the legal dispute was fully resolved. They noted that resources set aside for the framework could be redirected elsewhere, leaving the government without an effective programme to implement even if it eventually won the appeal.
“If the applicants succeed on appeal, there will be no framework to implement which will render the appeal nugatory,” the court stated.
However, the ruling does not settle the constitutional dispute surrounding the Kenya-US health agreement. Instead, it allows implementation to proceed while the appeal against the High Court’s orders is pursued.
Busia Senator Okiya Omtatah Okoiti opposed the government’s application, arguing that proceeding with the framework before the constitutional questions were determined could threaten fundamental rights and weaken 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 application, maintaining that constitutional safeguards and parliamentary oversight should not be set aside in the interest of quickly delivering healthcare services.
The respondents further argued that the government had increased funding to address possible gaps arising from changes in external health financing. They maintained that the agreement’s implementation should not take priority over the constitutional questions raised in court.
In response, the appellate judges observed that the framework had not been declared unconstitutional following a full hearing. The High Court had only stopped its implementation while the petition challenging it remained pending.
“There has not been any declaration of unconstitutionality of the said Framework,” the judges observed.
The court said the questions concerning the agreement’s legality, including those relating to privacy, public finance and parliamentary oversight, would have to be determined during the substantive proceedings. The latest decision was therefore limited to whether the government should be allowed to proceed with implementation while its appeal was pending.
The judges also considered the government’s argument that the High Court had mishandled the proceedings leading to the suspension. The government contended that the application had been heard on a date set for directions rather than a formal hearing, without adequate notice.
It further argued that the proceedings breached the sub judice rule because similar issues had been raised in Nairobi High Court Petition No. E806 of 2025.
The Court of Appeal found that both issues raised arguable grounds for appeal. It noted that the application had indeed been heard on a date fixed for directions, leaving room for the question of whether the procedure followed by the High Court was proper.
The judges also observed that the alleged sub judice issue required consideration, particularly because conservatory orders appeared to have been issued in the other petition.
The court had previously lifted the High Court orders on May 12, 2026, with the reasons for that decision provided in its substantive ruling.
In its final orders, the Court of Appeal set aside the High Court’s December 19, 2025, ruling and the conservatory orders that had restrained implementation of the Kenya-US health cooperation framework.
The judges concluded that the public interest in maintaining essential healthcare services justified allowing the programme to proceed while the government pursued its appeal. The constitutional challenge, however, remains unresolved, leaving the substantive questions about the agreement’s legality to be determined in the ongoing court proceedings.
