The Nairobi High Court has temporarily halted the Kenyan government’s plans to implement a multi-billion shilling health cooperation agreement with the United States, siding with a petitioner who argues the deal was struck in violation of the constitution.
In a ruling delivered on Friday 19 December, Justice E.C. Mwita granted conservatory orders suspending the “Cooperation Framework on Health” signed just weeks earlier, pending the full hearing of a constitutional petition filed by activist Okiya Omtatah Okoiti.
The framework, signed on 4th December 2025, outlines a strategic partnership where the United States has committed to supporting Kenya’s health sector with USD 850 million (approximately Ksh 110 billion). The government, represented by several cabinet secretaries and the attorney general, described the agreement as vital for sustaining critical programmes tackling HIV, Tuberculosis, and Malaria, and for strengthening laboratory systems, disease surveillance, and the health workforce.
They argued that a recent shift in US funding policy to an off-budget model had created uncertainty and threatened service continuity, making the new framework essential.
However, Omtatah’s petition challenged the very foundation of the agreement. He contended that the framework, which entails significant financial commitment and policy shifts, was negotiated and signed without the requisite public participation and parliamentary oversight mandated by the constitution.
He argued it bypassed the Treaty Making and Ratification Act, violated principles of public finance management by committing funds outside the budget process, and infringed on devolved county governments’ autonomy over health functions. A core concern was the threat to data privacy, with the petitioner alleging the framework allowed “broad foreign access to sensitive data held in health facilities” without sufficient safeguards.
During hearings, the government’s legal team, led by counsel Mr Kuria, strenuously opposed the application for an injunction. They maintained the petition was premature and legally misconceived. “Mr. Kuria, learned counsel for the respondents, has urged the court not to grant conservatory orders at this stage since the Framework for cooperation is a non-binding legal instrument and is intended to strengthen partnership between the two governments in the areas of cooperation,” the ruling recorded.
The state argued that the document was a guiding instrument, not a legally binding treaty, and that a 90-day window for establishing implementation structures meant no irreversible actions were imminent. They asserted that the petitioner should have waited for actual implementation before seeking the court’s intervention.
Omtatah insisted the substantive content of the framework created detailed obligations, making it a treaty in all but name. He warned of irreversible constitutional harm if the court did not act. “Mr. Omtatah argues that if conservatory orders are not granted, the petition will be rendered an academic exercise and the issues raised will be irreversible,” the judgement noted. He emphasised that a threatened violation of the constitution was itself a justiciable issue deserving of the court’s preventive mandate.
Justice Mwita declined to rule on the ultimate merits of the petition but found that Omtatah had raised serious and arguable constitutional questions that deserved a full hearing. The judge referenced established jurisprudence stating that conservatory orders serve a public law purpose to preserve the status quo and protect the constitution.
He concluded that allowing implementation to proceed would risk destroying the very subject of the legal challenge. “The court must therefore prioritise protection of the Constitution since there can be no greater public interest than to demand compliance with the Constitution,” Justice Mwita stated in his ruling.
