Busia Senator Okiya Omtatah has asked the Court of Appeal to dismiss an application seeking to stay conservatory orders that suspended the implementation of the Health Cooperation Framework between Kenya and the United States.
In submissions opposing the application filed by Attorney General Dorcas Oduor and Health Cabinet Secretary Aden Duale, Omtatah argued that the State had failed to meet the legal threshold required for relief under Rule 5(2)(b) of the Court of Appeal Rules, 2010.
He maintained that the intended appeal was neither arguable nor would it be rendered nugatory if the conservatory orders issued by the High Court were allowed to remain in force.
Omtatah told the court that the High Court ruling was interlocutory and preservative in nature, noting that the judge did not make any final determination on the constitutionality of the Framework. Instead, he said, the court merely preserved the status quo after finding that the petition raised serious and weighty constitutional questions.
According to Omtatah, the High Court found that allowing implementation of the Framework before full hearing and determination would render the petition academic.
He further argued that the conservatory orders were not punitive but necessary to safeguard the substratum of the case, which raises concerns relating to public participation, parliamentary oversight, data protection, public finance management, and devolution.
Addressing claims by the State on urgency and public interest, Omtatah dismissed them as exaggerated and speculative, arguing that no credible evidence had been presented to show that suspension of the Framework would lead to a collapse of healthcare services.
He noted that affidavits filed by the applicants themselves confirmed that the Framework was a new arrangement and not an extension of existing health programmes, which he said continue to operate under established funding mechanisms.
Omtatah also challenged the arguability of the intended appeal, stating that allegations of procedural unfairness were contradicted by the court record and that executive action in foreign relations remains subject to constitutional scrutiny.
Despite being described as “non-binding,” he argued that the Framework imposed mandatory obligations and financial commitments, effectively making it a treaty requiring parliamentary ratification.
