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The Court of Appeal to suspend the High Court order that had blocked the implementation of the Kenya-US health cooperation framework.[File,Standard]
The recent decision of the Court of Appeal to suspend the High Court order that had blocked the implementation of the Kenya-US health cooperation framework raises old and uncomfortable questions about the place and role of courts in the constitutional order. The issue goes beyond this agreement. It speaks to a growing pattern where the appellate court lifts conservatory orders once the State claims that government operations are under threat. Over time, this approach has weakened constitutional litigation and turned urgent public cases into known-end rituals with little practical value.
Conservatory orders exist for a simple reason. They preserve a disputed situation until courts determine whether the challenged action is lawful. They prevent irreversible actions. Without them, the State can move quickly, spend public funds, sign agreements, transfer information, restructure institutions, and create facts on the ground before judges finally pronounce themselves. When that happens, the eventual judgment becomes symbolic. The Constitution may still speak through the court, but the injury has already occurred, and what is more?
