Busia Senator Okiyah Omtatah has urged the Court of Appeal to dismiss an application by the government seeking to lift conservatory orders blocking the implementation of a multi-billion-shilling health cooperation framework between Kenya and the United States.
The High Court halted the rollout of the programme—signed on December 4, 2025—after Omtatah challenged its constitutionality, raising concerns over public participation, parliamentary oversight, data protection, public finance management, and devolution.
Following the ruling, the Attorney General and the Cabinet Secretary for Health moved to the Court of Appeal seeking to suspend the High Court orders.
Omtatah: Government Fails Rule 5(2)(b) Test
In opposing the application, Omtatah argued that the government had failed to meet the strict legal threshold under Rule 5(2)(b) of the Court of Appeal Rules.
He told the appellate court that the Attorney General had not demonstrated that the intended appeal would be rendered nugatory if the conservatory orders remain in force.
“Granting a stay would allow the Executive to create facts on the ground under a cloud of unconstitutionality, thereby pressuring the courts and rendering their ultimate judgment ineffective,” Omtatah submitted.
He emphasized that public interest is not served by speed, but by strict constitutional compliance.
‘Conservatory Orders Are Preservative, Not Punitive’
The senator argued that the conservatory orders issued by the High Court were purely preservative, designed to protect the substratum of the petition and ensure a meaningful hearing.
Omtatah said the High Court properly exercised its discretion in safeguarding issues touching on:
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Public participation
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Parliamentary oversight
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Data protection
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Public finance management
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Devolution
“Any implementation of the Framework prior to resolution of these issues would irreversibly prejudice the petition,” he told the court.
He further relied on Supreme Court jurisprudence affirming that development and governance objectives cannot be pursued at the expense of constitutional fidelity, which itself constitutes the highest form of public interest.
Claims of Urgency Dismissed as Speculative
Omtatah dismissed claims by the Attorney General and Health CS that the suspension threatens healthcare delivery, describing them as exaggerated, speculative, and unsupported by evidence.
He pointed out that affidavits filed by government officials—including those of Emmanuel Bitta and Dr. Ouma Oluga—acknowledge that the framework is a new arrangement, not a continuation of existing health programmes.
“Ongoing health initiatives funded through domestic budgets and international partners such as the Global Fund remain unaffected,” Omtatah argued.
He warned that the real urgency lies in preventing constitutional violations under Articles 1, 2, 10, 31, 43, 201, and 220 of the Constitution.
Government Accuses High Court of Error
In its application, the Attorney General and Health CS asked the Court of Appeal to issue interim conservatory orders staying the ruling of Enock Mwita, pending the hearing of the intended appeal.
They faulted the judge for allegedly:
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Relying on what they termed bare assertions by the petitioner
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Proceeding with a hearing allegedly without proper notice to the government
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Failing to appreciate that foreign relations fall within the constitutional mandate of the National Executive
They further argued that the judge failed to consider the polycentric nature of foreign relations, warning that the ruling could undermine Kenya’s strategic national interests in a competitive global environment.
Awaiting Appellate Determination
The Court of Appeal is expected to determine whether the High Court orders remain in force pending the hearing of the full appeal, in a case that raises far-reaching constitutional questions on governance, sovereignty, and international cooperation.