The High Court has declined to withdraw a constitutional petition challenging the controversial Health Data Sharing Agreement between Kenya and the United States, ruling that public interest litigation cannot be terminated through private consent where constitutional issues remain unresolved.
The application to have the case withdrawn had been filed by the Consumer Federation of Kenya (COFEK).
“Petitioner/Applicant hereby moves this Honourable Court under the provision of Rule 27 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and all other enabling provisions of the law, for an order that the Petitioner in HCCHRPET. No. E809 of 2025 wishes not to proceed with the matter and the same should be withdrawn without cost,” reads the application by COFEK
Justice Patricia Nyaundi upheld an objection raised by Katiba Institute against COFEK’s application to withdraw Constitutional Petition No. E809 of 2025.
The petition questions the constitutionality of the health data-sharing deal between the Kenyan government and the United States, with concerns raised over privacy rights, data protection, and public participation.
COFEK had informed the court that it had entered into a consent agreement with the government and sought to withdraw the matter.
However, Katiba Institute, through its lawyer Joshua Malidzo, opposed the move, arguing that constitutional violations cannot be settled through consent if the alleged breaches still exist.
Malidzo told the court that constitutional petitions filed in the public interest are not the exclusive property of the original petitioner and may be pursued by any member of the public where issues of constitutional accountability arise.
He further submitted that there can be no private compromise over alleged constitutional violations affecting the public, insisting that the court retains the ultimate duty to safeguard the Constitution.
In her ruling, Justice Nyaundi agreed, holding that courts must retain control over constitutional petitions filed in the public interest and that a notice of withdrawal may be declined where sufficient constitutional questions remain for determination.
The judge noted that Okiya Omtatah had already expressed willingness to continue prosecuting the matter alongside his own Petition No. E816 of 2025, making it necessary for the court to allow the case to proceed to conclusion.
The consolidated petitions are now scheduled for hearing on May 25, 2026, before Justice Nyaundi.
