Introduction
1. The Petition dated 8 th December 2025 assails the Kenya–United States Health Cooperation Framework that was signed by the Prime Cabinet Secretary and Cabinet Secretary for Foreign and Diaspora Affairs, Hon. Musalia Mudavadi and witnessed by His Excellency, the President Dr. William Ruto on 4 th December 2025.
2. Under the said Cooperation Framework, the Government of the United States commits to provide US$1.6 billion over five-year period, directly to government institutions, to be used for medical equipment supply, health commodities delivery, workforce upscaling , and health insurance expansion .
3. The Petitioner alleges that the aforesaid Cooperation Framework was executed unilaterally by the Executive, without the requisite parliamentary approval, an inclusive public consultation or transparent fiscal impact assessment and/or without due consideration for data protection hence arbitrary and unconstitutional as it contravenes various constitutional principles and applicable statutes.
2 nd Intended Interested Party’s Application
4. The 2 nd Intended Interested Party in its Notice of Motion Application dated 24 th December 2025 seeks orders that:
i. Spent.
ii. The Applicant, KENYA MEDICAL PRACTITIONERS, PHARMACISTS AND DENTISTS’ UNION (KMPDU), be enjoined as the 2 nd Interested Party in Petition No. E816 of 2025 and Petition No. E809 of 2025.
iii. Petition No. E816 of 2025 and Petition No. E809 of 2025 be consolidated for hearing and determination, with Petition No. E809 of 2025 having been filed earlier being designated as the lead file.
iv. Pending the inter-partes hearing and determination of the Consolidated Petitions, this Court be pleased to vacate, set aside and/or discharge the blanket conservatory order issued on 19 th December 2025 in the present, which stayed the implementation of the Health Cooperation Framework in its entirety.
v. In the alternative to prayer 4 above only, this Court be pleased to vary and/or modify the conservatory orders issued on 19 th December 2025 to allow for the continued implementation of those specific components of the Health Cooperation Framework related to:
vi. The procurement and distribution of life-saving medical commodities for HIV, Tuberculosis (TB), and Malaria;
vii. The operationalization of the "7-1-7" outbreak detection metrics and related emergency response systems;
viii. The transition of 515 frontline laboratory and health workers to the Government of Kenya payroll as scheduled for 2028.
ix. A conservatory order be issued restraining the Respondents from taking any administrative action that would result in the stock-out of essential medicines or the cessation of technical support for infectious disease surveillance pending the determination of the Petition.
x. This Court be pleased to issue further directions for the 2 nd Interested Party and all other parties to file its submissions and the expedited hearing of the Petitions whether consolidated or otherwise to resolve the legal status of the Health Cooperation Framework and the Data Sharing Agreement.
xi. This court be pleased to issue any further orders and directions as it may deem fit in the circumstances and in the interest of justice.
xii. The cost of the application be in the cause.
5. The application is supported by the 2 nd Intended Interested Party’s affidavit, sworn on even date by Dr. Davji Bhimji Atellah , its Secretary General and the grounds on the face of the application.
6. The 2 nd Intended Interested Party is a registered trade union whose members are the primary frontline providers of health services in Kenya and are directly responsible for the implementation of the programs governed by the impugned Framework. It is noted that the impugned Framework specifically provides for the transition of five hundred and fifteen 515 frontline laboratory and health workers to the Government of Kenya payroll by 2028 .
7. By way of background, he depones that for over 25 years, Kenya and the United States of America have maintained strategic partnership in the health sector, through the United States Agency for International Development (USAID) and the President's Emergency Plan for AIDS Relief (PEPFAR) , which have provided billions of shillings in support for HIV, Tuberculosis (TB), and Malaria programmes.
8. He states that this relationship was on 24 th January 2025 disrupted following the issuance of an Executive Order on Reevaluating and Realigning United States Foreign Aid by the President of the United States. It mandated an immediate pause on all new funding obligations and prompted a review of all foreign assistance programmes. This in effect halted the procurement of essential medical commodities and threatened the continuity of health services thus creating an urgent need for a structured framework to transition Kenya towards health self-reliance, while securing interim funding.
9. He avers that this lays the background which led to the execution of the impugned Framework-a policy document meant to provide a roadmap for the 2026–2030 period so as to restore funding stability and manage the phased handover of health responsibilities to the Kenyan government.
10. He states that soon after the impugned Framework was executed, HCCHRPET/E809/2025 Consumers Federation of Kenya -Vs- State Law Office and Senate And 3 Others was filed on 9 th December 2025, challenging the Framework on grounds of data privacy and alleged violations of the Data Protection Act. Subsequently, the instant Petition was filed raising new and overlapping constitutional concerns regarding treaty-making processes and public participation.
11. In his view, the two Petitions fundamentally seek the same relief, being permanent nullification of the impugned Framework. According to him, the factual matrix in both is identical, the respondents largely the same and the legal foundations centering on Articles 10, 31, and 43 of the Constitution.
12. On this premise, he argues that the existence of two parallel petitions challenging the same instrument risks issuance of conflicting judicial pronouncements, as such urges that the matters be consolidated to save on judicial time.
13. Furthermore, he asserts that the conservatory orders issued on 19 th December 2025 have catastrophic implications owing to the dire status of the Kenyan health sector. He states that these orders have created a functional vacuum in the health sector at the most volatile time of the year characterized by high population mobility including minors and expectant mothers, which correlates with a spike in infectious disease transmission. It is noted that the conservatory orders disabled the 7-1-7 outbreak detection metric—an international performance target leaving the Country vulnerable to undetected infectious disease outbreaks during this season.
14. Moreover, he stresses that the impugned Framework is the administrative engine for the 2026 procurement cycle. He enlightens that international health funding cycles, particularly those involving USAID and Global Fund partners, operate on rigid ‘use-it-or-lose-it’ fiscal windows. Therefore, he emphasizes that by freezing the Framework during the recess, the Court has inadvertently locked Kenya out of the January 2026 disbursement window, ensuring that even if the orders are lifted in February, the supply chain gap will have already been triggered, leading to a minimum of a three-month national stock-out.
15. He contends that the Petitioner mischaracterized the impugned Framework as a treaty, whereas the document itself stipulates that it is a non-binding arrangement between the participants and does not create legal obligations under international law . He notes therefore that the 2 nd Intended Interested Party, if allowed, will demonstrate that the Data Sharing Agreement is fully compliant with the Data Protection Act (Cap 411C) and the Digital Health Act, 2023, and expressly provides that Kenyan law shall prevail in the event of any divergence.
16. In sum, he argues that the balance of convenience tilts in favour of the 2 nd Intended Interested Party and the public, as the risk of catastrophic loss of life due to treatment interruption far outweighs the procedural concerns raised by the Petitioner regarding the designation of the agreement. He as such, implores the Court to allow this Application.
Petitioner’s Case
17. In reaction to the Application, the Petitioner filed Grounds of Opposition dated 5 th January 2026 on the basis that:
i. The Application is misconceived, frivolous, incompetent and an abuse of the process of this Court.
ii. The Applicant has not satisfied the constitutional and jurisprudential threshold for joinder as an Interested Party, having failed to demonstrate a proximate, identifiable, and legally protectable interest distinct from that of the respondents.
iii. The Applicant’s alleged interests are speculative, contingent, and future-oriented, and do not amount to accrued or vested legal rights capable of protection in a constitutional petition.
iv. The issues raised by the Applicant are substantially identical to those already pleaded, argued, and determined inter partes between the Petitioner and the Respondents at the conservatory stage.
v. The Applicant seeks, through the guise of joinder, to mount an impermissible collateral attack on the ruling and conservatory orders issued by this Court on 19 th December 2025.
vi. The Applicant has not met the legal threshold for the setting aside, discharge, or variation of conservatory orders, no new evidence, error apparent on the face of the record, or supervening circumstances having been demonstrated.
vii. The conservatory orders were issued after due consideration of public interest, proportionality, and constitutional supremacy, and the applicant has not demonstrated any basis for their disturbance.
viii. Selective or partial suspension of the conservatory orders would defeat the substratum of the Petition and render the eventual determination of the constitutional questions nugatory.
ix. Constitutional compliance, public participation, parliamentary oversight, data protection, and devolution cannot be subordinated to administrative convenience, donor conditionalities, or asserted funding exigencies.
x. The Application is an attempt to prioritize utilitarian expediency over constitutional supremacy, contrary to Articles 2, 3, 10, and 23 of the Constitution.
xi. The Application should be dismissed with costs to the Petitioner.
18. The Petitioner as well filed his Replying Affidavit and Response of even date to this Application.
19. On the onset, he avers that the prayers seeking vacation of the issued conservatory orders dated 19 th December 2025 constitutes a collateral attack on a valid and reasoned Ruling of this Court, which was delivered after consideration of all the parties’ submissions. Moreover, he claims that the instant application does not raise new factual or legal grounds that were unavailable to the Respondents at the time of the hearing. He asserts instead that the application seeks to re-argue the same issues that were raised by the Respondents.
20. He asserts that the deponent who seeks to have Kenyans choose between their health and upholding of the Constitution does not display personal knowledge of intergovernmental negotiations; diplomatic communications; treaty-making procedures; parliamentary processes; national budgetary approvals; or constitutional compliance. Accordingly, he opposes the 2 nd Intended Interested Party’s averments in his supporting affidavit.
21. Further to this, he contends that the 2 nd Intended Interested Party has no identifiable legal interest warranting joinder as its alleged interest is not unique and can be adequately addressed through amicus curie submissions without formal joinder. He adds that the Interested Party herein, Katiba Institute, represents public interest in the issues raised in the Petition. Besides, that its alleged interests are deemed as speculative and contingent upon future events.
22. He argues that the assertion that numerous Kenyans will run out of medication by late January 2026 and a three-month national stock out, is not supported by any evidence from the National Treasury, the Ministry of Health, or the Kenya Medical Supplies Authority.
23. The Petitioner contends moreover that the assertions touching of the substratum of the Petition revolve around substantive issues which are to be determined in the main Petition thus accuses the 2 nd Intended Interested Party of seeking to have the Court pre-judge the Petition in its favour contrary to the issued conservatory orders.
24. On consolidation, he contends that the same is premature and unsupported by any evidence. He asserts that while the two petitions challenge the impugned Framework, Petition E809 of 2025 focuses primarily on data privacy under the Data Protection Act, whereas this Petition addresses constitutional violations which include sovereignty, public finance, and devolution. For this reason, he maintains that consolidation risks conflating distinct issues and delaying justice. In conclusion, he argues that the Petition lacks merit and thus should be dismissed.
Respondents’ and Interested Parties Case
25. These parties’ response and submissions to the Application are not in the Court file or Court Online Platform (CTS).
3 rd - 8 th Intended Interested Parties Application
26. These Intended Parties in their Notice of Motion Application dated 16 th January 2026 seek orders that:
i. Spent.
ii. The 3 rd to 8 th Proposed Interested Parties be enjoined in these proceedings and/or Petition as Interested Parties.
iii. Consequent to joining the Proposed Interested Parties, this Court hears them on their request for the Court to vary, set aside, discharge or otherwise stay the Conservatory Orders it granted on 19 th December 2025.
iv. The Interested Parties upon being admitted, be granted leave to file and serve its pleadings within such time as the Court may direct.
v. The costs of this Application abide the outcome of the Petition.
27. The application is supported by these Parties supporting affidavits abridged on the grounds on the face of the application as follows:
a) The 3 rd to 8 th Proposed Interested Parties are directly affected by the conservatory orders issued by this Court on 19 th December 2025 restraining the Respondents, on behalf of the Government of Kenya, from implementing, operationalizing or executing the Kenya–United States Cooperation Framework on Health signed on 4 th December 2025.
b) The 3 rd Proposed Interested Party, NEPHAK, is a duly registered national network that unites persons living with HIV and affected communities and represents community-based organizations and constituencies directly engaged in HIV and related health programmes, whose members depend on the continuity, coordination and availability of HIV and related services.
c) The 4 th , Proposed Interested Party, MOYOTE, is a duly registered public benefit organization serving and representing women, young mothers and communities affected by HIV and TB and its perspective grounded in the lived realities of these communities is not otherwise before this Court.
d) The 5 th to 8 th Proposed Interested Parties are persons living with HIV and/or leaders of community structures engaged in the coordination and oversight of HIV and TB responses and the outcome of these proceedings has a direct, immediate and practical bearing on their health, dignity, survival and livelihood.
e) The lived experiences and collective realities of persons living with HIV, women, young mothers, adolescents and affected communities are not otherwise represented before this Court and unless the Proposed Interested Parties are enjoined, the Court will determine issues that directly affect their lives, health and dignity without hearing from those most affected.
f) It is in public interest and interest of justice that the 3 rd to 8 th Proposed Interested Parties be enjoined in these proceedings and be heard before this Court determines matters that directly govern their access to treatment, care and support.
g) Unless the Court joins these Proposed Interested Parties, the Petition will proceed without the participation of those whose constitutional right to the highest attainable standard of health under Article 43(1)(a) is directly implicated, thereby occasioning grave prejudice and undermining the public interest.
Petitioner’s Case
28. Opposing this application, the Petitioner filed his Replying Affidavit sworn on 26 th January 2026.
29. The Petitioner faulted the Intended Interested Parties late filing of an application challenging Conservatory Orders issued way back on 19 th December 2025. He contends that their delay is unjustified and inconsistent with the claim of urgency. For this reason, he contends that they have failed to demonstrate any immediate or irreparable prejudice that could not have been addressed earlier.
30. He maintains that the Petition primarily challenges the constitutionality, legality and procedural validity of the impugned Framework hence raises pure questions of constitutional and statutory compliance. Particularly, that these issues are whether the impugned Framework constitutes a treaty or international agreement under Article 2(6) of the Constitution, whether it was subjected to mandatory parliamentary approval, whether there was meaningful public participation and whether the Framework complies with constitutional safeguards on data protection, fiscal governance, and sovereignty .
31. In light of this, he affirms that the Petition does not concern the desirability of the impugned Framework as a policy instrument in relation to service delivery, funding allocation, programme management, or the operational implementation of HIV or TB interventions, as erroneously understood.
32. He further asserts that the application does not meet the legal threshold for joinder as these Parties lack proximate legal interest as guided under Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. This is because none of the Parties is a signatory to the impugned Framework, participated in its negotiation, approval or ratification, has any constitutional or statutory role in treaty-making, foreign relations or parliamentary oversight and has demonstrated expertise in the subject matter.
33. He stresses that a generalized public interest, policy preference, or advocacy position does not meet the threshold for joinder. Additionally, he theorizes that the Parties alleged interest is speculative as premised on anticipated funding implications rather than on the legality of the Framework. Equally, he states that while he acknowledges and respects these parties lived experiences, he maintains that lived experience and advocacy are not grounds for joinder.
34. Further to this, he claims that the Parties assertion that the perspectives of affected communities are not represented is incorrect as the Interested Party herein, Katiba Institute is a public interest constitutional litigation organization with expertise in health rights under Article 43 of the Constitution.
35. He claims that the Application is an improper and premature attempt to set aside conservatory orders and a disguised attempt to re-litigate the conservatory relief, without meeting the legal threshold for review, variation or appeal. He contends that he and the public will be prejudiced by the delay that will result from joining these Parties in these proceedings. He reasons that these parties’ contribution can be by way of amicus curiae submissions so as not to cause a delay in the proceedings.
Respondents’ and Interested Parties Case
36. These parties’ response and submissions to the Application are not in the Court file or Court Online Platform (CTS).
SUBMISSIONS
2 nd Intended Interested Party
37. The 2 nd Interested- party filed submissions dated 19 th January 2026 by their advocates Wafula, Washika and Associates. The issues for discussion were identified as: whether the Applicant meets the threshold for enjoinment as an Interested Party, whether Petition No. E816 of 2025 and Petition No. E809 of 2025 should be consolidated with E809 of 2025 as the lead file considering potential conflict between orders, whether the consolidated petitions raise substantial questions of law that warrant certification under Article 165(4) of the Constitution and whether the blanket conservatory order of 19 th December 2025 should be vacated or varied to protect essential health services .
38. On the first issue, Counsel submitted that this Party has a stake in the proceedings as represents the 515 workers mentioned in the impugned Framework and the practitioners implementing the 7-1-7 metrics . As such, Counsel argued that this Party’s presence is indispensable for an informed determination. Reliance was placed in Francis Karioki Muruatetu & another v Republic [2021] eKLR , where the Supreme Court established that a party should be joined if they have a stake in the matter and their participation will assist the court in reaching a just conclusion.
39. Turning to the issue of consolidation, Counsel submitted that the law dictates that where multiple suits involve the same subject matter, they should be consolidated to avoid the risk of conflicting decisions. Counsel argued that being that the instant petition and Petition E809 of 2025 revolve around the same issues they ought to be consolidated.
40. Counsel as well submitted that the issues raised herein raises a substantial question of law as defined in Harrison Kinyanjui v Attorney General & another [2012] eKLR . Particularly, the novel issue being the alleged conflict between the Executive's power to sign international arrangements and Parliament's oversight role under Articles 94 and 95 of the Constitution. Also, that the Court must determine whether the impugned Framework constitutes a Treaty under the Treaty Making and Ratification Act (2012) or a mere Administrative Arrangement.
41. Counsel postulated that these issues invoke great public interest. Reliance was placed in Okiya Omtatah Okoiti & Another v Anne Waiguru & 4 Others [2017] KECA 679 , where the Court of Appeal emphasized that certification is necessary where the issues at hand have a significant bearing on the public interest and constitutional order.
42. Counsel as well urged the Court to vary the conservatory orders issued on 19 th December 2025 as they create a clear and present danger to the right to health under Article 43 of the Constitution. Counsel noted that the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR , emphasized that the balance of convenience must favour the preservation of human life and public interest. In light of this, Counsel urged that the Court find in favour of the 2 nd Intended Interested Party.
3 rd to 8 th Intended Interested Party’s
43. On 23 rd January 2026, these Parties through Bond Advocates LLP filed submissions and highlighted the issues for discussion as: whether these parties have fulfilled the conditions to be joined as an interested party and whether this Court has jurisdiction to vary, set aside, discharge or otherwise stay conservatory orders .
44. On the first issue, Counsel submitted that the principles for making such a determination were set out in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2015] eKLR as follows:
i. The applicant to demonstrate a clear and proximate interest in the matter beyond the peripheral;
ii. The applicant to show the prejudice they would suffer if excluded; and
iii. The applicant to outline the distinct submissions they intend to advance, demonstrating their relevance and non-duplication of other parties’ arguments.
45. Counsel stated that these parties’ interests are made manifest in that the 3 rd Intended Interested Party is the national network representing communities living with and affected by HIV and the 4 th to 8 th Intended Interested Parties, are persons living with HIV and whose continued access to treatment, diagnostics, prevention and psychosocial support is directly funded and operationalized through the impugned Framework.
46. Moving on, Counsel submitted in the second issue that according to the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 this Court upon application by any party may vary, discharge or extend conservatory orders. To buttress this point reliance was placed in Okiya Omtatah Okoiti & Others v Cabinet Secretary for the Treasury & Others (2023) eKLR where the Court held that it has inherent jurisdiction to exercise status quo through conservatory orders pending final determination of the substantive petition. Accordingly, Counsel argued that the blanket suspension causes immediate disruption of life-saving treatment, diagnostics, maternal and child health services, community health systems and livelihoods thus justify variance of this Orders.
Petitioner’s Submissions
47. The Petitioner filed one set of submissions dated 5 th January 2026 in response to both applications. He underscored the key issues as: whether the applicant has met the legal threshold for joinder as an interested party, whether the applicant has established grounds for setting aside, varying, or discharging the conservatory orders issued on 19 th December 2025 and whether public interest favours the preservation or disturbance of the conservatory orders .
48. The Petitioner also relying in the opine in Trusted Society of Human Rights Alliance (supra) stated that the law on joinder is settled. The Petitioner theorized that the Intended Interested Parties interest chiefly concerns the anticipated funding flows, possible future absorption of health workers by 2028 and programmatic expectations dependent on the impugned Framework. According to him these are contingent expectations, not legally enforceable rights.
49. The Petitioner urged against their joinder noting that the Supreme Court in Muruatetu & another v Republic; Kenya National Commission on Human Rights & others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR) cautioned against joinder where the intended party merely seeks to repeat arguments already before the Court or to introduce parallel interests adequately represented by the existing parties. He stressed that the Respondents are already adequately defending the impugned Framework in its entirety thus the intended parties’ participation would be duplicative, prejudicial and unnecessary. A such, he argued that the Intended Parties had failed to meet the threshold for joinder.
50. On the next issue, Counsel submitted that the intended parties had not demonstrated any recognized grounds for interference with the issued conservatory orders being discovery of new and material evidence; an error apparent on the face of the record and supervening circumstances. He emphasized that all the issues raised were already underscored by the Respondents and ultimately considered by the Court prior to issuance of the conservatory orders.
51. To buttress this point reliance was placed in Centre for Rights Education and Awareness (CREAW) v Speaker of the National Assembly & 2 Others [2017] eKLR where the Court held that threatened violations of the Constitution are justiciable and warrant preventive relief.
52. Finally, the Petitioner submitted that Public interest cannot be equated with expediency or convenience. He noted that the Court in Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR held that conservatory remedies are remedies in rem intended to uphold constitutional order. Like dependence was placed in Suleiman v Amboseli Resort Limited [2004] 2 KLR 589 .
53. The Petitioner submitted that this Court in the impugned Ruling affirmed that there can be no greater public interest than fidelity to the Constitution. As such, partial implementation of a contested framework would irreversibly undermine constitutional safeguards on public participation, devolution, public finance and data protection. Equally, he argued that the Intended Parties had failed to lay a lawful basis for setting aside of the issued conservatory orders.
Analysis and Determination
54. Before I delve into the determination of the key issues that were raised and canvassed in the applications and the responses thereto, it is necessary to point out that the the 2 nd Intended Interested Party, in its submissions, introduced, for the first time, the issue of empanelment of a bench which was neither raised in that Party’s pleadings or in the orders sought in the Application. That qualifies the description of what commonly referred to as litigation by ambush for for lack of reasonable notice, procedural fairness and due process. I will not thus devote any attention to that particular monologue. In any case, as was held by the Supreme Court in Raila Amolo Odinga & Stephen Kalonzo Musyoka v Independent Electoral and Boundaries Commission, Chairperson Independent Electoral and Boundaries Commission & Uhuru Muigai Kenyatta (Election Petition 1 of 2017) [2017] KESC 31 (KLR) , a party is bound by its pleadings. The Court stated:
“[62] Having addressed our minds to the above issues, it is our view that first, we note that as correctly argued by Counsel for the 3 rd Respondent, a party must be bound by its pleadings… Any prayer in the application th
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1. The Petition dated 8 th December 2025 assails the Kenya–United States Health Cooperation Framework that was signed by the Prime Cabinet Secretary and Cabinet Secretary for Foreign and Diaspora Affairs, Hon. Musalia Mudavadi and witnessed by His Excellency, the President Dr. William Ruto on 4 th December 2025.
2. Under the said Cooperation Framework, the Government of the United States commits to provide US$1.6 billion over five-year period, directly to government institutions, to be used for medical equipment supply, health commodities delivery, workforce upscaling , and health insurance expansion .
3. The Petitioner alleges that the aforesaid Cooperation Framework was executed unilaterally by the Executive, without the requisite parliamentary approval, an inclusive public consultation or transparent fiscal impact assessment and/or without due consideration for data protection hence arbitrary and unconstitutional as it contravenes various constitutional principles and applicable statutes.
2 nd Intended Interested Party’s Application
4. The 2 nd Intended Interested Party in its Notice of Motion Application dated 24 th December 2025 seeks orders that:
i. Spent.
ii. The Applicant, KENYA MEDICAL PRACTITIONERS, PHARMACISTS AND DENTISTS’ UNION (KMPDU), be enjoined as the 2 nd Interested Party in Petition No. E816 of 2025 and Petition No. E809 of 2025.
iii. Petition No. E816 of 2025 and Petition No. E809 of 2025 be consolidated for hearing and determination, with Petition No. E809 of 2025 having been filed earlier being designated as the lead file.
iv. Pending the inter-partes hearing and determination of the Consolidated Petitions, this Court be pleased to vacate, set aside and/or discharge the blanket conservatory order issued on 19 th December 2025 in the present, which stayed the implementation of the Health Cooperation Framework in its entirety.
v. In the alternative to prayer 4 above only, this Court be pleased to vary and/or modify the conservatory orders issued on 19 th December 2025 to allow for the continued implementation of those specific components of the Health Cooperation Framework related to:
vi. The procurement and distribution of life-saving medical commodities for HIV, Tuberculosis (TB), and Malaria;
vii. The operationalization of the "7-1-7" outbreak detection metrics and related emergency response systems;
viii. The transition of 515 frontline laboratory and health workers to the Government of Kenya payroll as scheduled for 2028.
ix. A conservatory order be issued restraining the Respondents from taking any administrative action that would result in the stock-out of essential medicines or the cessation of technical support for infectious disease surveillance pending the determination of the Petition.
x. This Court be pleased to issue further directions for the 2 nd Interested Party and all other parties to file its submissions and the expedited hearing of the Petitions whether consolidated or otherwise to resolve the legal status of the Health Cooperation Framework and the Data Sharing Agreement.
xi. This court be pleased to issue any further orders and directions as it may deem fit in the circumstances and in the interest of justice.
xii. The cost of the application be in the cause.
5. The application is supported by the 2 nd Intended Interested Party’s affidavit, sworn on even date by Dr. Davji Bhimji Atellah , its Secretary General and the grounds on the face of the application.
6. The 2 nd Intended Interested Party is a registered trade union whose members are the primary frontline providers of health services in Kenya and are directly responsible for the implementation of the programs governed by the impugned Framework. It is noted that the impugned Framework specifically provides for the transition of five hundred and fifteen 515 frontline laboratory and health workers to the Government of Kenya payroll by 2028 .
7. By way of background, he depones that for over 25 years, Kenya and the United States of America have maintained strategic partnership in the health sector, through the United States Agency for International Development (USAID) and the President's Emergency Plan for AIDS Relief (PEPFAR) , which have provided billions of shillings in support for HIV, Tuberculosis (TB), and Malaria programmes.
8. He states that this relationship was on 24 th January 2025 disrupted following the issuance of an Executive Order on Reevaluating and Realigning United States Foreign Aid by the President of the United States. It mandated an immediate pause on all new funding obligations and prompted a review of all foreign assistance programmes. This in effect halted the procurement of essential medical commodities and threatened the continuity of health services thus creating an urgent need for a structured framework to transition Kenya towards health self-reliance, while securing interim funding.
9. He avers that this lays the background which led to the execution of the impugned Framework-a policy document meant to provide a roadmap for the 2026–2030 period so as to restore funding stability and manage the phased handover of health responsibilities to the Kenyan government.
10. He states that soon after the impugned Framework was executed, HCCHRPET/E809/2025 Consumers Federation of Kenya -Vs- State Law Office and Senate And 3 Others was filed on 9 th December 2025, challenging the Framework on grounds of data privacy and alleged violations of the Data Protection Act. Subsequently, the instant Petition was filed raising new and overlapping constitutional concerns regarding treaty-making processes and public participation.
11. In his view, the two Petitions fundamentally seek the same relief, being permanent nullification of the impugned Framework. According to him, the factual matrix in both is identical, the respondents largely the same and the legal foundations centering on Articles 10, 31, and 43 of the Constitution.
12. On this premise, he argues that the existence of two parallel petitions challenging the same instrument risks issuance of conflicting judicial pronouncements, as such urges that the matters be consolidated to save on judicial time.
13. Furthermore, he asserts that the conservatory orders issued on 19 th December 2025 have catastrophic implications owing to the dire status of the Kenyan health sector. He states that these orders have created a functional vacuum in the health sector at the most volatile time of the year characterized by high population mobility including minors and expectant mothers, which correlates with a spike in infectious disease transmission. It is noted that the conservatory orders disabled the 7-1-7 outbreak detection metric—an international performance target leaving the Country vulnerable to undetected infectious disease outbreaks during this season.
14. Moreover, he stresses that the impugned Framework is the administrative engine for the 2026 procurement cycle. He enlightens that international health funding cycles, particularly those involving USAID and Global Fund partners, operate on rigid ‘use-it-or-lose-it’ fiscal windows. Therefore, he emphasizes that by freezing the Framework during the recess, the Court has inadvertently locked Kenya out of the January 2026 disbursement window, ensuring that even if the orders are lifted in February, the supply chain gap will have already been triggered, leading to a minimum of a three-month national stock-out.
15. He contends that the Petitioner mischaracterized the impugned Framework as a treaty, whereas the document itself stipulates that it is a non-binding arrangement between the participants and does not create legal obligations under international law . He notes therefore that the 2 nd Intended Interested Party, if allowed, will demonstrate that the Data Sharing Agreement is fully compliant with the Data Protection Act (Cap 411C) and the Digital Health Act, 2023, and expressly provides that Kenyan law shall prevail in the event of any divergence.
16. In sum, he argues that the balance of convenience tilts in favour of the 2 nd Intended Interested Party and the public, as the risk of catastrophic loss of life due to treatment interruption far outweighs the procedural concerns raised by the Petitioner regarding the designation of the agreement. He as such, implores the Court to allow this Application.
Petitioner’s Case
17. In reaction to the Application, the Petitioner filed Grounds of Opposition dated 5 th January 2026 on the basis that:
i. The Application is misconceived, frivolous, incompetent and an abuse of the process of this Court.
ii. The Applicant has not satisfied the constitutional and jurisprudential threshold for joinder as an Interested Party, having failed to demonstrate a proximate, identifiable, and legally protectable interest distinct from that of the respondents.
iii. The Applicant’s alleged interests are speculative, contingent, and future-oriented, and do not amount to accrued or vested legal rights capable of protection in a constitutional petition.
iv. The issues raised by the Applicant are substantially identical to those already pleaded, argued, and determined inter partes between the Petitioner and the Respondents at the conservatory stage.
v. The Applicant seeks, through the guise of joinder, to mount an impermissible collateral attack on the ruling and conservatory orders issued by this Court on 19 th December 2025.
vi. The Applicant has not met the legal threshold for the setting aside, discharge, or variation of conservatory orders, no new evidence, error apparent on the face of the record, or supervening circumstances having been demonstrated.
vii. The conservatory orders were issued after due consideration of public interest, proportionality, and constitutional supremacy, and the applicant has not demonstrated any basis for their disturbance.
viii. Selective or partial suspension of the conservatory orders would defeat the substratum of the Petition and render the eventual determination of the constitutional questions nugatory.
ix. Constitutional compliance, public participation, parliamentary oversight, data protection, and devolution cannot be subordinated to administrative convenience, donor conditionalities, or asserted funding exigencies.
x. The Application is an attempt to prioritize utilitarian expediency over constitutional supremacy, contrary to Articles 2, 3, 10, and 23 of the Constitution.
xi. The Application should be dismissed with costs to the Petitioner.
18. The Petitioner as well filed his Replying Affidavit and Response of even date to this Application.
19. On the onset, he avers that the prayers seeking vacation of the issued conservatory orders dated 19 th December 2025 constitutes a collateral attack on a valid and reasoned Ruling of this Court, which was delivered after consideration of all the parties’ submissions. Moreover, he claims that the instant application does not raise new factual or legal grounds that were unavailable to the Respondents at the time of the hearing. He asserts instead that the application seeks to re-argue the same issues that were raised by the Respondents.
20. He asserts that the deponent who seeks to have Kenyans choose between their health and upholding of the Constitution does not display personal knowledge of intergovernmental negotiations; diplomatic communications; treaty-making procedures; parliamentary processes; national budgetary approvals; or constitutional compliance. Accordingly, he opposes the 2 nd Intended Interested Party’s averments in his supporting affidavit.
21. Further to this, he contends that the 2 nd Intended Interested Party has no identifiable legal interest warranting joinder as its alleged interest is not unique and can be adequately addressed through amicus curie submissions without formal joinder. He adds that the Interested Party herein, Katiba Institute, represents public interest in the issues raised in the Petition. Besides, that its alleged interests are deemed as speculative and contingent upon future events.
22. He argues that the assertion that numerous Kenyans will run out of medication by late January 2026 and a three-month national stock out, is not supported by any evidence from the National Treasury, the Ministry of Health, or the Kenya Medical Supplies Authority.
23. The Petitioner contends moreover that the assertions touching of the substratum of the Petition revolve around substantive issues which are to be determined in the main Petition thus accuses the 2 nd Intended Interested Party of seeking to have the Court pre-judge the Petition in its favour contrary to the issued conservatory orders.
24. On consolidation, he contends that the same is premature and unsupported by any evidence. He asserts that while the two petitions challenge the impugned Framework, Petition E809 of 2025 focuses primarily on data privacy under the Data Protection Act, whereas this Petition addresses constitutional violations which include sovereignty, public finance, and devolution. For this reason, he maintains that consolidation risks conflating distinct issues and delaying justice. In conclusion, he argues that the Petition lacks merit and thus should be dismissed.
Respondents’ and Interested Parties Case
25. These parties’ response and submissions to the Application are not in the Court file or Court Online Platform (CTS).
3 rd - 8 th Intended Interested Parties Application
26. These Intended Parties in their Notice of Motion Application dated 16 th January 2026 seek orders that:
i. Spent.
ii. The 3 rd to 8 th Proposed Interested Parties be enjoined in these proceedings and/or Petition as Interested Parties.
iii. Consequent to joining the Proposed Interested Parties, this Court hears them on their request for the Court to vary, set aside, discharge or otherwise stay the Conservatory Orders it granted on 19 th December 2025.
iv. The Interested Parties upon being admitted, be granted leave to file and serve its pleadings within such time as the Court may direct.
v. The costs of this Application abide the outcome of the Petition.
27. The application is supported by these Parties supporting affidavits abridged on the grounds on the face of the application as follows:
a) The 3 rd to 8 th Proposed Interested Parties are directly affected by the conservatory orders issued by this Court on 19 th December 2025 restraining the Respondents, on behalf of the Government of Kenya, from implementing, operationalizing or executing the Kenya–United States Cooperation Framework on Health signed on 4 th December 2025.
b) The 3 rd Proposed Interested Party, NEPHAK, is a duly registered national network that unites persons living with HIV and affected communities and represents community-based organizations and constituencies directly engaged in HIV and related health programmes, whose members depend on the continuity, coordination and availability of HIV and related services.
c) The 4 th , Proposed Interested Party, MOYOTE, is a duly registered public benefit organization serving and representing women, young mothers and communities affected by HIV and TB and its perspective grounded in the lived realities of these communities is not otherwise before this Court.
d) The 5 th to 8 th Proposed Interested Parties are persons living with HIV and/or leaders of community structures engaged in the coordination and oversight of HIV and TB responses and the outcome of these proceedings has a direct, immediate and practical bearing on their health, dignity, survival and livelihood.
e) The lived experiences and collective realities of persons living with HIV, women, young mothers, adolescents and affected communities are not otherwise represented before this Court and unless the Proposed Interested Parties are enjoined, the Court will determine issues that directly affect their lives, health and dignity without hearing from those most affected.
f) It is in public interest and interest of justice that the 3 rd to 8 th Proposed Interested Parties be enjoined in these proceedings and be heard before this Court determines matters that directly govern their access to treatment, care and support.
g) Unless the Court joins these Proposed Interested Parties, the Petition will proceed without the participation of those whose constitutional right to the highest attainable standard of health under Article 43(1)(a) is directly implicated, thereby occasioning grave prejudice and undermining the public interest.
Petitioner’s Case
28. Opposing this application, the Petitioner filed his Replying Affidavit sworn on 26 th January 2026.
29. The Petitioner faulted the Intended Interested Parties late filing of an application challenging Conservatory Orders issued way back on 19 th December 2025. He contends that their delay is unjustified and inconsistent with the claim of urgency. For this reason, he contends that they have failed to demonstrate any immediate or irreparable prejudice that could not have been addressed earlier.
30. He maintains that the Petition primarily challenges the constitutionality, legality and procedural validity of the impugned Framework hence raises pure questions of constitutional and statutory compliance. Particularly, that these issues are whether the impugned Framework constitutes a treaty or international agreement under Article 2(6) of the Constitution, whether it was subjected to mandatory parliamentary approval, whether there was meaningful public participation and whether the Framework complies with constitutional safeguards on data protection, fiscal governance, and sovereignty .
31. In light of this, he affirms that the Petition does not concern the desirability of the impugned Framework as a policy instrument in relation to service delivery, funding allocation, programme management, or the operational implementation of HIV or TB interventions, as erroneously understood.
32. He further asserts that the application does not meet the legal threshold for joinder as these Parties lack proximate legal interest as guided under Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. This is because none of the Parties is a signatory to the impugned Framework, participated in its negotiation, approval or ratification, has any constitutional or statutory role in treaty-making, foreign relations or parliamentary oversight and has demonstrated expertise in the subject matter.
33. He stresses that a generalized public interest, policy preference, or advocacy position does not meet the threshold for joinder. Additionally, he theorizes that the Parties alleged interest is speculative as premised on anticipated funding implications rather than on the legality of the Framework. Equally, he states that while he acknowledges and respects these parties lived experiences, he maintains that lived experience and advocacy are not grounds for joinder.
34. Further to this, he claims that the Parties assertion that the perspectives of affected communities are not represented is incorrect as the Interested Party herein, Katiba Institute is a public interest constitutional litigation organization with expertise in health rights under Article 43 of the Constitution.
35. He claims that the Application is an improper and premature attempt to set aside conservatory orders and a disguised attempt to re-litigate the conservatory relief, without meeting the legal threshold for review, variation or appeal. He contends that he and the public will be prejudiced by the delay that will result from joining these Parties in these proceedings. He reasons that these parties’ contribution can be by way of amicus curiae submissions so as not to cause a delay in the proceedings.
Respondents’ and Interested Parties Case
36. These parties’ response and submissions to the Application are not in the Court file or Court Online Platform (CTS).
SUBMISSIONS
2 nd Intended Interested Party
37. The 2 nd Interested- party filed submissions dated 19 th January 2026 by their advocates Wafula, Washika and Associates. The issues for discussion were identified as: whether the Applicant meets the threshold for enjoinment as an Interested Party, whether Petition No. E816 of 2025 and Petition No. E809 of 2025 should be consolidated with E809 of 2025 as the lead file considering potential conflict between orders, whether the consolidated petitions raise substantial questions of law that warrant certification under Article 165(4) of the Constitution and whether the blanket conservatory order of 19 th December 2025 should be vacated or varied to protect essential health services .
38. On the first issue, Counsel submitted that this Party has a stake in the proceedings as represents the 515 workers mentioned in the impugned Framework and the practitioners implementing the 7-1-7 metrics . As such, Counsel argued that this Party’s presence is indispensable for an informed determination. Reliance was placed in Francis Karioki Muruatetu & another v Republic [2021] eKLR , where the Supreme Court established that a party should be joined if they have a stake in the matter and their participation will assist the court in reaching a just conclusion.
39. Turning to the issue of consolidation, Counsel submitted that the law dictates that where multiple suits involve the same subject matter, they should be consolidated to avoid the risk of conflicting decisions. Counsel argued that being that the instant petition and Petition E809 of 2025 revolve around the same issues they ought to be consolidated.
40. Counsel as well submitted that the issues raised herein raises a substantial question of law as defined in Harrison Kinyanjui v Attorney General & another [2012] eKLR . Particularly, the novel issue being the alleged conflict between the Executive's power to sign international arrangements and Parliament's oversight role under Articles 94 and 95 of the Constitution. Also, that the Court must determine whether the impugned Framework constitutes a Treaty under the Treaty Making and Ratification Act (2012) or a mere Administrative Arrangement.
41. Counsel postulated that these issues invoke great public interest. Reliance was placed in Okiya Omtatah Okoiti & Another v Anne Waiguru & 4 Others [2017] KECA 679 , where the Court of Appeal emphasized that certification is necessary where the issues at hand have a significant bearing on the public interest and constitutional order.
42. Counsel as well urged the Court to vary the conservatory orders issued on 19 th December 2025 as they create a clear and present danger to the right to health under Article 43 of the Constitution. Counsel noted that the Supreme Court in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR , emphasized that the balance of convenience must favour the preservation of human life and public interest. In light of this, Counsel urged that the Court find in favour of the 2 nd Intended Interested Party.
3 rd to 8 th Intended Interested Party’s
43. On 23 rd January 2026, these Parties through Bond Advocates LLP filed submissions and highlighted the issues for discussion as: whether these parties have fulfilled the conditions to be joined as an interested party and whether this Court has jurisdiction to vary, set aside, discharge or otherwise stay conservatory orders .
44. On the first issue, Counsel submitted that the principles for making such a determination were set out in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2015] eKLR as follows:
i. The applicant to demonstrate a clear and proximate interest in the matter beyond the peripheral;
ii. The applicant to show the prejudice they would suffer if excluded; and
iii. The applicant to outline the distinct submissions they intend to advance, demonstrating their relevance and non-duplication of other parties’ arguments.
45. Counsel stated that these parties’ interests are made manifest in that the 3 rd Intended Interested Party is the national network representing communities living with and affected by HIV and the 4 th to 8 th Intended Interested Parties, are persons living with HIV and whose continued access to treatment, diagnostics, prevention and psychosocial support is directly funded and operationalized through the impugned Framework.
46. Moving on, Counsel submitted in the second issue that according to the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 this Court upon application by any party may vary, discharge or extend conservatory orders. To buttress this point reliance was placed in Okiya Omtatah Okoiti & Others v Cabinet Secretary for the Treasury & Others (2023) eKLR where the Court held that it has inherent jurisdiction to exercise status quo through conservatory orders pending final determination of the substantive petition. Accordingly, Counsel argued that the blanket suspension causes immediate disruption of life-saving treatment, diagnostics, maternal and child health services, community health systems and livelihoods thus justify variance of this Orders.
Petitioner’s Submissions
47. The Petitioner filed one set of submissions dated 5 th January 2026 in response to both applications. He underscored the key issues as: whether the applicant has met the legal threshold for joinder as an interested party, whether the applicant has established grounds for setting aside, varying, or discharging the conservatory orders issued on 19 th December 2025 and whether public interest favours the preservation or disturbance of the conservatory orders .
48. The Petitioner also relying in the opine in Trusted Society of Human Rights Alliance (supra) stated that the law on joinder is settled. The Petitioner theorized that the Intended Interested Parties interest chiefly concerns the anticipated funding flows, possible future absorption of health workers by 2028 and programmatic expectations dependent on the impugned Framework. According to him these are contingent expectations, not legally enforceable rights.
49. The Petitioner urged against their joinder noting that the Supreme Court in Muruatetu & another v Republic; Kenya National Commission on Human Rights & others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR) cautioned against joinder where the intended party merely seeks to repeat arguments already before the Court or to introduce parallel interests adequately represented by the existing parties. He stressed that the Respondents are already adequately defending the impugned Framework in its entirety thus the intended parties’ participation would be duplicative, prejudicial and unnecessary. A such, he argued that the Intended Parties had failed to meet the threshold for joinder.
50. On the next issue, Counsel submitted that the intended parties had not demonstrated any recognized grounds for interference with the issued conservatory orders being discovery of new and material evidence; an error apparent on the face of the record and supervening circumstances. He emphasized that all the issues raised were already underscored by the Respondents and ultimately considered by the Court prior to issuance of the conservatory orders.
51. To buttress this point reliance was placed in Centre for Rights Education and Awareness (CREAW) v Speaker of the National Assembly & 2 Others [2017] eKLR where the Court held that threatened violations of the Constitution are justiciable and warrant preventive relief.
52. Finally, the Petitioner submitted that Public interest cannot be equated with expediency or convenience. He noted that the Court in Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR held that conservatory remedies are remedies in rem intended to uphold constitutional order. Like dependence was placed in Suleiman v Amboseli Resort Limited [2004] 2 KLR 589 .
53. The Petitioner submitted that this Court in the impugned Ruling affirmed that there can be no greater public interest than fidelity to the Constitution. As such, partial implementation of a contested framework would irreversibly undermine constitutional safeguards on public participation, devolution, public finance and data protection. Equally, he argued that the Intended Parties had failed to lay a lawful basis for setting aside of the issued conservatory orders.
Analysis and Determination
54. Before I delve into the determination of the key issues that were raised and canvassed in the applications and the responses thereto, it is necessary to point out that the the 2 nd Intended Interested Party, in its submissions, introduced, for the first time, the issue of empanelment of a bench which was neither raised in that Party’s pleadings or in the orders sought in the Application. That qualifies the description of what commonly referred to as litigation by ambush for for lack of reasonable notice, procedural fairness and due process. I will not thus devote any attention to that particular monologue. In any case, as was held by the Supreme Court in Raila Amolo Odinga & Stephen Kalonzo Musyoka v Independent Electoral and Boundaries Commission, Chairperson Independent Electoral and Boundaries Commission & Uhuru Muigai Kenyatta (Election Petition 1 of 2017) [2017] KESC 31 (KLR) , a party is bound by its pleadings. The Court stated:
“[62] Having addressed our minds to the above issues, it is our view that first, we note that as correctly argued by Counsel for the 3 rd Respondent, a party must be bound by its pleadings… Any prayer in the application th
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