The High Court has rejected an attempt by the Consumer Federation of Kenya (COFEK) to withdraw a constitutional petition challenging the controversial health data-sharing agreement between Kenya and the United States.
In a ruling, Justice Nyaundi Patricia Mande upheld the Katiba Institute’s objection, allowing the petition to proceed to a hearing.
COFEK had informed the court that it had entered into a consent agreement with the government and therefore sought to discontinue the case.
The petition had challenged the constitutionality of the Kenya–US health data-sharing agreement, raising concerns about compliance with constitutional protections for data governance and public accountability.
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Katiba Institute, through its counsel, Joshua Malidzo, opposed the application, arguing that constitutional petitions cannot be settled through private agreements where alleged violations persist.
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The institute maintained that there can be no consent to constitutional violations and that the issues raised in the petition remained unresolved despite the proposed agreement between COFEK and the government.
Katiba further argued that the case was filed in the public interest and does not belong exclusively to COFEK, meaning any member of the public has the legal right to continue prosecuting it.
“Counsel argued that the Petition was filed in the public interest and is not the sole property of COFEK; any member of the public may prosecute it,” read a statement.
Therefore, Justice Nyaundi held that courts must retain control over constitutional petitions filed in the public interest and may decline withdrawal applications where it is in the public interest.
Justice Nyaundi stated that allowing such cases to be withdrawn by consent could undermine constitutional accountability and weaken public-interest litigation.
In addition, the court noted that Senator Okiya Omtatah had expressed a willingness to pursue the petition alongside his own related case, Petition No. E816 of 2025.
As a result, the consolidated petitions will proceed and are scheduled for a hearing on May 25, 2026, before Justice Nyaundi Patricia Mande.
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This development comes after the High Court previously suspended the implementation of the country’s Memorandum of Understanding with the United States after two separate court challenges by the Consumer Federation of Kenya (COFEK) and local Senator Okiya Omtatah.
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COFEK argued that the agreement contravenes Kenya’s Data Protection Act, Digital Health Act, and Health Act, and that new data regulations are needed to protect citizens’ health data.
Meanwhile, Omtatah petitioned the court to halt the agreement because it undermines the principles of public participation and parliamentary oversight, and binds Kenya to terms that could strain the country’s budget.
The five-year health deal agreement signed in Washington commits the US to providing up to $1.6 billion between 2026 and 2030, mainly for HIV/AIDS, tuberculosis (TB), and malaria prevention; maternal and child health, and outbreak surveillance and response.
