Appeal Court Lets Kenya Run KSh 208B US Health Deal While Legal Fight ContinuesAppeal Court Lets Kenya Run KSh 208B US Health Deal While Legal Fight Continues
Key Highlights
- Three Court of Appeal judges ruled on 9 October that public interest favours keeping the KSh 208B ($1.6B) Kenya-US health framework running while the government appeals.
- The bench cited about 1.4 million Kenyans who rely on HIV, tuberculosis and malaria services it funds, warning that a suspension could cause irreversible harm, including deaths.
- The deal binds Kenya to raise health budgets by KSh 10B this financial year, climbing to KSh 50B in 2029/30, and to absorb more than 13,000 health workers by 2028.
- The ruling does not decide whether the agreement is constitutional, leaving data protection and parliamentary oversight objections from Okiya Omtatah and the Katiba Institute unresolved.
Kenya can keep running its KSh 208B ($1.6B) health partnership with the United States while the government appeals a High Court freeze, after three Court of Appeal judges set aside the December 2025 orders that blocked it. The bench of Justices Luka Kimaru, Munyao Sila and J.O.
Okello ruled on 9 October that the public interest favours carrying on with the programme, citing about 1.4 million Kenyans who depend on the HIV, tuberculosis and malaria services it funds, The Kenya Times reported
The decision matters beyond the courtroom. The deal ties American money to rising Kenyan health budgets, moves medicine buying to the Kenya Medical Supplies Authority (KEMSA) and shifts more than 13,000 health workers onto the public payroll. A frozen deal would have left the Treasury, counties and suppliers planning around a gap; the ruling removes that uncertainty for now, but not the constitutional challenge.
The ruling gives reasons for a stay granted in May
The judgment is the reasoned version of an interim order. On 12 May the same bench stayed the High Court orders and said its reasons would follow, according to Capital FM, via allAfrica. Those orders were issued on 19 December 2025 by Justice Bahati Mwamuye in Petition E816 of 2025, and halted the deal over concerns about sharing Kenyans' health data.
The Attorney General and the Cabinet Secretary for Health asked the appellate court to set the orders aside. Busia Senator Okiya Omtatah and the Katiba Institute opposed them, raising data protection, privacy, public finance, devolution and parliamentary approval of international agreements, The Star reported.
The government argued that the High Court heard the application on a day fixed only for directions, and that it overlooked a related case, Petition E806 of 2025, already before another judge. The judges found both points arguable. "The case was indeed heard on a day that was fixed for directions," they said, adding that the court "appears to have violated the sub judice rule."
On the balance of harm, the bench warned that interrupting treatment could cause irreversible damage, including loss of life. It also said that if the framework collapsed while the appeal was pending, "there will be no framework to implement which will render the appeal nugatory," Citizen Digital reported.
The money and the obligations in the deal
Prime Cabinet Secretary Musalia Mudavadi and US Secretary of State Marco Rubio signed the five-year framework on 4 December 2025, with President William Ruto present. The US share is KSh 208B ($1.6B), and Kenya was the first African country to agree such a government-to-government arrangement, The Star reported at the signing.
The American money is conditional. Kenya committed to raise national and county health budgets by KSh 10B in 2026/27, KSh 20B in 2027/28, KSh 35B in 2028/29 and KSh 50B in 2029/30. Its own spending on commodities and workers the US now supports is set to rise from KSh 4.6B ($35.3M) in 2027/28 to KSh 18.5B ($142M) in 2031/32.
Some outlets value the deal at KSh 322B to KSh 328B. That figure counts Kenya's pledged extra spending of about KSh 110B ($850M) on top of the US contribution, which The Eastleigh Voice said critics regard as taxpayer money tied to US-approved priorities.
Under the framework, the US will fund the absorption of 13,293 health workers and 515 laboratory workers by 2028, after which the government takes them on. Procurement and distribution of health commodities are due to move to KEMSA by December 2026.
Implementation had already resumed
The US paused implementation in February while the case was pending. Susan Burns, the US chargé d'affaires in Nairobi, said Washington would wait for the courts, Kenyans.co.ke reported. After the May stay, Treasury Principal Secretary Chris Kiptoo said on 8 June that the two sides had "reached an agreement on the implementation" of the partnership.
The October ruling therefore puts legal reasons behind work already under way. It does not settle whether the agreement is lawful. The court said the framework had not been declared unconstitutional after a full hearing, and left that question to the government's appeal and the main petition in the High Court. No hearing dates were reported.
For the Treasury, the result locks in a rising health bill at a time of tight public finances, a shift Mwenendo examined in Kenya's move toward domestic health funding. For patients and suppliers, it keeps funding flowing. If the petitioners win on the merits, however, the data-sharing terms and the budget commitments could be reopened.
In Summary
- What did the Court of Appeal decide?
- It set aside the High Court's 19 December 2025 orders that froze the Kenya-US health framework, so the government can implement it while its appeal is pending.
- Who was involved?
- Justices Luka Kimaru, Munyao Sila and J.O. Okello heard the application by the Attorney General and the Health Cabinet Secretary, opposed by Senator Okiya Omtatah and the Katiba Institute.
- When was the ruling made?
- The bench ruled on 9 October 2026, giving reasons for an interim stay it granted on 12 May 2026. It was reported on 13 October.
- Why did the judges lift the orders?
- They said the public interest favours implementation, citing about 1.4 million Kenyans on HIV, TB and malaria services, and found the government's procedural objections arguable.
- How does the deal affect public finances?
- The US contribution of KSh 208B ($1.6B) over five years is conditional on Kenya raising health budgets by KSh 10B in 2026/27, rising to KSh 50B in 2029/30.