The High Court has issued a second order blocking the implementation of the health deal signed by Kenya and US governments on December 4.
The court issued the order blocking the implementation of the Cooperation Framework, pending the determination of a petition filed by Busia senator Okiya Omtatah.
Mr Omtatah submitted that the Framework threatens to violate the constitution in many respects, including Parliamentary oversight through the Treaty Making and Ratification Act, public participation and consultation, as well as public finance and management principles, devolution and the right to privacy, among others.
“In the circumstances, therefore, all factors considered and without deciding with finality the issues raised in this petition, this court is of the view, and finds, that it is in the public interest and interest of the rule of law, transparency and accountability that conservatory orders be granted,” said the court.
Another judge had issued similar orders in a petition filed by the Consumer Federation of Kenya (Cofek).
Busia Senator Okiya Omtatah speaks to journalists during a press conference at Taj Towers in Nairobi on July 12, 2025.
Photo credit: Bonface Bogita | Nation Media Group
Mr Omtatah said there ought to be Parliamentary approval of the treaty with public participation before the deal is signed.
The legislator further raised the issue of data privacy and protection since medical data is a private right, which can only be shared with the affected person’s permission.
In the circumstances of the Framework, he argued, personal sensitive data will be affected in violation of the Constitution and the Data Protection Act.
The government had opposed the case, arguing that the World Health Organisation (WHO) recognises HIV, Tuberculosis and Malaria as global health security risks due to their catastrophic impacts.
And due to these epidemics on public health, social and economic effects, Health Principal Secretary Dr Ouma Oluga said they require coordinated cross-border management and uninterrupted treatment, which the government cannot manage on its own or individually.
The PS said this requires funding through the government, funding through international bodies and implementing partners.
The government added that USA assistance had been a key funder of the health sector and withdrawal of direct funding led to immediate pause causing uncertainty in US funded operations, supporting key several aspects of the health sector, including commodities, health workforce training and deployment, public health research, HIV, Tuberculosis, Malaria, immunization, nutrition, reproductive health services, development of health policies and systems, and, generally, strengthening health systems blocks-governance, financing, and service delivery.
The court was told that the management of HIV, Tuberculosis, Malaria and other epidemics requires a multipronged approach, including domestic funding by the government, foreign aid and collaboration with other partners such as the WHO.
Dr Oluga said in an affidavit that the USA government was a major contributor to the external funding and the abrupt withdrawal directly threatened continuity in service delivery, commodity security, human resources for health, and health data infrastructure, among other strategic health systems components, with potentially catastrophic impacts on Kenya's overall health system performance and related outcomes.
He said the Framework provides for the strengthening of the Kenya National Public Health Institute (NPHI), establishment of regional hubs and County Emergency Operations Centres, the training of staff focused on detection, notification and response processes to meet outbreak response goals.
“A conservatory order is hereby granted restraining the respondents on behalf of the government of Kenya from implementing, operationalizing and or executing the Cooperation Framework Between the Government of the Republic of Kenya and the Government of the United States of America on Health signed on 4th December 2025, in its entirety, pending the hearing and determination of the petition,” said the court.
