NAIROBI, Kenya — Busia Senator Okiya Omtatah has filed a formal petition before the Judicial Service Commission (JSC) seeking the removal of three Court of Appeal judges over their handling of a case involving the Kenya–US Health Cooperation Framework.
In the petition dated Friday, May 29, Omtatah accuses the appellate judges of procedural impropriety after they suspended High Court orders that had blocked implementation of the controversial health agreement, while delaying the release of written reasons for their decision until October 2026.
The senator argues that the delay has created a constitutional and legal vacuum that undermines the right to appeal.
Contested Court of Appeal ruling
The dispute arises from a Court of Appeal decision delivered on May 12, 2026, in which a bench comprising Justices Kimaru, Munyao, and Okello stayed conservatory orders issued by the High Court in Nairobi.
The High Court orders had temporarily halted the implementation of the Kenya–US Health Cooperation Framework, a multi-billion-shilling agreement between Kenya and the United States government.
However, while granting the stay, the appellate court indicated that the full written reasons for its ruling would only be delivered on October 30, 2026 — nearly five months later.
‘Constitutional crisis’ claim
Omtatah contends that the absence of written reasons prevents him from mounting a meaningful appeal before the Supreme Court, arguing that this violates his constitutional right under Article 163.
He maintains that without judicial reasoning, litigants are unable to challenge the legal basis of the decision or seek effective constitutional review.
“By the time the Court of Appeal eventually delivers its reasons in October 2026, the consequences will already be irreversible,” Omtatah said in his petition. “Sensitive health data will already have been transferred. Massive fiscal commitments will already have been undertaken.”
Concerns over timing and implementation
The senator further argues that the ruling allows government operations under the Kenya–US health pact, valued at Ksh322 billion and signed in December 2025 — to proceed without judicial clarity on the legality of the appellate court’s intervention.
He warns that such a situation risks rendering any future Supreme Court determination ineffective in practical terms.
Basis of JSC complaint
In his petition to the JSC, Omtatah is not challenging the outcome of the Court of Appeal ruling itself, but rather the procedure adopted by the judges.
He argues that issuing immediately enforceable orders without accompanying reasons undermines judicial accountability and weakens constitutional safeguards for appellate review.
“The complaint is not that the judges ruled against me. It is that they adopted a procedure that obstructs timely constitutional review,” he said.
Legal and constitutional questions raised
The petition places renewed focus on judicial timelines, transparency in appellate decision-making, and the balance between interim orders and the right of appeal in constitutional litigation.
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Legal analysts note that the case could test procedural norms within Kenya’s appellate system, particularly on whether delayed judgments can lawfully coexist with immediately binding interim orders in high-stakes public interest cases.
Background of the dispute
The Court of Appeal ruling followed an earlier petition by Omtatah seeking suspension of the Kenya–US health cooperation agreement, which has been the subject of ongoing constitutional scrutiny and public debate.
The agreement is part of broader health sector collaboration between Kenya and the United States, involving data systems, financing arrangements, and institutional cooperation frameworks.
