Why court has barred US-Kenya Sh207 billion deal
National
By
Kamau Muthoni
| Dec 12, 2025
The High Court in Nairobi on Thursday barred the government from sharing health data with the United States of America.
Justice Bahati Mwamuye yesterday directed that the Ministry of Health, the Foreign Affairs one and the Attorney General, or their agents, not to implement the contentious part of the deal signed with the USA.
However, the government can go ahead and give effect other areas of the Sh207 billion agreement, so long as it will not share information on Kenyans health.
"Pending the inter partes hearing and determination of the Petitioner/Applicant's Notice of motion application dated December 9,2025, a conservatory order be and is hereby issued suspending, staying and or restraining the respondents...from implementing, operationalizing, or howsoever giving effect to the Health Cooperation Framework executed between the Government of Kenya and the Government of the United States of America on or about December 4, 2025, insofar as it provides for or facilitates the transfer, sharing or dissemination of medical, epidemiological or sensitive personal health data," ruled Mwamuye.
He ordered that the State should respond to the application by the Consumers Federation of Kenya (Cofek) and appear before Justice Lawrence Mugambi next year in February.
President William Ruto signed a health co-operation framework worth Sh207 billion with the United States (USA).
However, Cofek moved to court on Tuesday, arguing that the deal is a violation of the Constitution and health law, and was allegedly done in a secret manner.
"Despite its significant implications, the Framework was not subjected to the constitutional principles of good governance under Article 10. This omission occurred even though the agreement involves cross-border transfer of sensitive health information and touches on national-security interests. By failing to adhere to the values of accountability, transparency, public participation, and integrity in governance, the Respondents acted contrary to Article 10. The process was therefore opaque and constitutionally improper," the lobby claimed.
The lobby told High Court Judge Lawrence Mugambi yesterday that there was no public participation or involvement of stakeholders by the government before the President signed the deal.
It asserted that health data on HIV/AIDS, TB, malaria, maternal health and disease surveillance is critical to the country's national security and too sensitive to be handed to a foreign country for a fee.
"Once Kenya's medical and epidemiological data is transferred abroad, the harm becomes permanent and irreversible. Neither this Honourable Court nor Kenyan regulators will have the power to recall, restrict or oversee the foreign use of such data. This exposes citizens to lasting privacy violations, stigma and potential misuse of their information. The irreversible nature of the harm elevates the urgency of the matter," argued Cofek.
The court heard that Data Protection Act prohibits data holder from sharing or selling data without the subject's consent.
Cofek stated that the government's decision ought to be subjected to scrutiny as it is putting Kenyans in a harms way. It said that if the deal is implemented, there will be no way of compensating reversing the alleged damage.
"Once Kenya's medical and epidemiological data is transferred abroad, the harm becomes permanent and irreversible. Neither this Honourable Court nor Kenyan regulators will have the power to recall, restrict or oversee the foreign use of such data. This exposes citizens to lasting privacy violations, stigma and potential misuse of their information. The irreversible nature of the harm elevates the urgency of the matter," it alleged.
Cofek's secretary general Stephen Mutoro in his supporting affidavit said that the framework ought to have been subjected to public participation and Parliamentary oversight.
According to him, the health pact was a decision made by the Executive only, adding that it is allegedly illegal.
"I verily believe to be true, that the execution of the Framework without legislative scrutiny, public participation, or regulatory compliance renders the entire process constitutionally defective and administratively unlawful. Such unilateral Executive action offends principles of transparency, accountability and public involvement," claimed Mutoro.
He further claimed that Kenyan citizens face a real risk of discrimination, stigma, profiling and misuse of their private health information.
"I verily believe that the actions of the respondents amount to procedural impropriety, illegality, unreasonableness and opacity, thereby justifying immediate intervention by this Honourable Court to avert irreparable harm," he said.
Cofek wants the court to bar the government from sharing the data. It sued the Ministry of Health Cabinet Secretary Aden Duale, Prime Cabinet Secretary Musalia Mudavadi, Digital Health Agency, office of the Data Protection Commissioner, National Assembly and Senate, and Attorney General Dorcas Oduor.