Busia Senator Okiya Omtatah during a press conference in Nairobi on May 29, 2026. [PHOTO/Enos Teche]
Busia Senator Okiya Omtatah Okoiti has filed a petition before the Judicial Service Commission seeking consideration of the conduct of three Court of Appeal judges.
In the petition, he raises concerns over what he describes as a procedure he terms “unknown to law”, which he says has the effect of limiting his ability to pursue an appeal to the Supreme Court.
The petition relates to Justices Luka Kimaru, Sila Munyao, and Dr J. O. Okello, who on May 12, 2026, issued orders staying High Court conservatory directions that had halted implementation of the Kenya–United States Health Cooperation Framework.
The judges indicated that reasons for the decision would be issued on October 30, 2026, approximately five months after the order was made.
Omtatah, speaking at a press briefing in Nairobi, said the petition is not intended as a challenge to judicial independence or dissatisfaction with an unfavourable outcome. Instead, he framed it as raising constitutional questions touching on access to justice and the appellate jurisdiction of the Supreme Court.
He argues that the constitutional structure places the Supreme Court as the final arbiter on constitutional interpretation, with Article 163(4)(a) providing for a right of appeal in matters involving constitutional questions.
He further notes that the Supreme Court has previously held that effective appellate review depends on the availability of reasoned decisions from lower courts, without which an appellant may be unable to properly formulate grounds of appeal.
According to him, without written reasons, a party is unable to fully understand the basis of the decision being challenged, and the Supreme Court may face limitations in assessing jurisdiction or alleged constitutional error.
He states that he has already filed a Notice of Appeal and prepared a Petition of Appeal, but maintains that the absence of reasons at this stage affects the practical exercise of the appellate process.
Meanwhile, implementation of the contested health framework continues.
He expresses concern that by the time the Court of Appeal issues its reasons in October, various aspects of the framework may already have progressed, including potential transfer of health data, financial commitments, and regulatory adjustments.
The framework covers areas including HIV/AIDS, tuberculosis, malaria, disease surveillance, medical data sharing, and public health infrastructure.
He further states that the High Court proceedings he initiated on the matter risk becoming largely academic if implementation proceeds without what he describes as timely judicial clarification.
The petition requests the Judicial Service Commission to consider whether the issues raised may warrant inquiry into matters relating to judicial conduct, compliance with the Judicial Service Code of Conduct and Ethics, and adherence to constitutional guarantees on fair hearing and access to justice, as well as whether any actions fall outside protections ordinarily afforded under judicial immunity.
In the alternative, he asks the Commission to consider whether the handling of binding precedent and procedural steps may raise questions of competence.
He frames the matter as extending beyond his individual grievance, posing a broader constitutional question on whether a court may issue an immediately enforceable order without accompanying reasons in circumstances where such reasons may affect the ability to pursue an appeal in a timely manner.
He urges the Commission to consider the petition with attention to constitutional principles, judicial independence, and accountability, and calls for responsible public engagement on the issue.
He maintains that judicial independence is intended to safeguard the administration of justice, while accountability mechanisms exist to address concerns regarding constitutional compliance.
The Judicial Service Commission is expected to review the petition and determine the appropriate next steps, including whether the issues raised merit further inquiry.
