The Court of Appeal has lifted orders that had blocked the implementation of Kenya’s health cooperation framework with the United States, ruling that the public interest in protecting millions of patients outweighs the risks raised in the ongoing constitutional case.
A three-judge bench set aside orders issued by the High Court on December 19, 2025, which had stopped the government from implementing the agreement signed by Kenya and the US on December 4, 2025.
The appellate court said suspending the framework could disrupt essential healthcare services, including the treatment of HIV, tuberculosis (TB), malaria and other infectious diseases.
Court lifts implementation block
It also warned that immunisation services and other critical health programmes could be affected.
“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, adding that some patients could even lose their lives.
The decision followed an application by the Attorney General and the Cabinet Secretary for Health, who sought to suspend the High Court orders as they prepared to challenge the ruling on appeal.
The government argued that stopping the agreement could affect approximately 1.4 million Kenyans who rely on medicines and healthcare support linked to the programme.
It also warned that interruptions to HIV and TB treatment could lead to drug resistance, posing serious risks to patients and public health. Other concerns included possible disruptions to immunisation, healthcare staffing, medical supplies and service delivery systems.
The judges agreed that continued suspension of the framework could have irreversible consequences, particularly if resources set aside for the programme were redirected before the appeal was heard.
They also found that the government had raised arguable legal issues that deserved consideration by the appellate court.
However, the ruling does not mean the court has declared the Kenya-US health framework constitutional.
Instead, it allows the government to proceed with implementation as the legal challenge continues.
Concerns raised by opponents
Okiya Omtatah Okoiti opposed the government’s 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 the role of Parliament in approving international agreements that create financial commitments and binding obligations.
He argued that the framework could violate several provisions of the Constitution, including Articles 31, which protects privacy, 43, which provides for economic and social rights, and 201, which sets out principles governing public finance.
Katiba Institute also opposed the government’s application, maintaining that constitutional safeguards and parliamentary oversight should not be set aside in the interest of delivering healthcare services quickly.
The respondents further argued that the government had increased funding to address possible gaps arising from changes in external health financing.
In its ruling, however, the Court of Appeal noted that the framework had not been declared unconstitutional after a full hearing.
The High Court had only suspended its implementation while the petition was being considered.
The judges said the constitutional questions raised by the parties would be addressed during the substantive proceedings and should not be conclusively determined at the interim stage.
The government had also challenged the manner in which the High Court handled the case, arguing that the application was heard on a date set for directions rather than a formal hearing date. It claimed that it had not been given adequate notice.
The government further argued that the proceedings breached the sub judice rule because similar issues were allegedly being considered in another case, Nairobi High Court Petition No. E806 of 2025.
The appellate court found that both arguments raised issues that could be examined during the intended appeal.
In its decision, the court weighed the need to protect constitutional rights against the immediate healthcare needs of millions of Kenyans.
Public interest considerations
It concluded that allowing the programme to proceed while the appeal was pending was in the public interest, given the potential consequences of disrupting essential treatment.
“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 its substantive ruling would later provide the reasons for the decision.
