The High Court on Tuesday dismissed applications seeking to stay an earlier decision on the appointment of presidential advisors.
Justice Bahati Mwamuye ruled that the matters raised before him had already been determined by the court.
This was a blow to the group that had moved to court seeking to stay the earlier order for them to stay in office.
In his decision, the judge said the respondents and interested parties had advanced the same arguments and sought the same reliefs previously considered, making the fresh applications res judicata.
Justice Mwamuye said submissions made during the highlighting of the applications were a repetition of positions already presented, noting that the court had earlier addressed concerns raised over the alleged duplication of offices.
He said the new applications did not raise any fresh issues or demonstrate any likelihood of injustice that would warrant a stay.
“The doctrine of res judicata prevents a matter from being endlessly litigated,” the judge ruled as he dismissed the applications and declined to suspend his earlier decision.
Katiba Institute, through lawyer Malidzo Nyawa, urged the court to dismiss the applications, arguing that the court lacked jurisdiction to re-open matters that had already been decided.
The respondents, however, told the court that a stay was necessary to allow 21 officers to hand over.
They also indicated they would appeal against the decision.
“We want to go to the Court of Appeal since we’ve exhausted the High Court,” lawyer Issa Mansur said.
Katiba Institute said once a court has rendered a final judgment, it lacks jurisdiction to reopen or reconsider its own decision.
“A party cannot, through the guise of an application which is in substance and effect an appeal, invite this Court to reopen, reconsider, or sit in judgment over its own final decision,” reads the response filed in court.
It added advisors had failed to demonstrate any prejudice they would suffer if the orders are not suspended.
Katiba Institute dismissed claims that the absence of the advisors would cripple government operations, pointing out that the President and the Executive have operated within the constitutional framework since 2010 without the contested offices.
“The President and the Executive have been able to deliver public services within the framework established by the Constitution before the creation of the contested offices. What are these cataclysmic or debilitating consequences that will suddenly befall the people of Kenya as they await the determination of an appeal, if any is filed?” the Institute argues.
The court was also told that if there were genuine concerns about disruption to government operations, it is the Attorney General not the advisers, who ought to have moved the court.
The High Court had earlier ruled that the creation and staffing of the advisers’ offices was unconstitutional, rendering their appointments null and void.
In a Certificate of Urgency and a supporting affidavit sworn by advisor Joe Ager, the advisors stated that the judgment’s enforcement would lead to “irreversible legal and institutional consequences.”
The advisors later argued that abolishing the offices immediately would create an “operational vacuum” in key government functions, including national security, economic policy, and constitutional affairs.
“The abrupt removal of the Interested Parties… would disrupt ongoing programmes and fracture advisory processes that have been built incrementally over time,” Ager stated in his affidavit.
He added that such a gap “cannot be filled easily, quickly or cost-effectively.”
The group asked the court to grant a stay of execution for 180 days.
This period, they said, would allow them to file a formal appeal and request an expedited hearing at the Court of Appeal without the subject matter of the dispute being extinguished.
The original petition, was filed by the Katiba Institute against the Attorney General, the Public Service Commission, and the Salaries and Remuneration Commission.
The civil society organization challenged the legality of the presidential advisors’ offices, arguing they were created in violation of constitutional principles and the mandate of independent commissions.
The advisors contend that they were properly appointed with the approval of the Public Service Commission and perform critical, specialized roles in supporting the President’s mandate.
The court dismissed their application.
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