The Katiba Institute asked the Office of the Controller of Budget to stop approving any payments to former Presidential Advisors and their offices, following a ruling that declared the creation of the positions unconstitutional.
In a letter addressed to Controller of Budget Dr. Margaret Nyakang’o, the constitutional litigation and advocacy group referenced the High Court judgment delivered on January 22, 2026.
The organisation requested confirmation that, in line with Article 228 of the Constitution, no public funds have been or will be approved for the affected offices.
The High Court had ruled that the creation of the advisory offices and the appointment of 21 individuals to them violated the Constitution and public service laws, declaring the positions null and void.
The court also issued orders restraining authorities from facilitating or effecting payments linked to the offices.
In its letter, the Katiba Institute said it was seeking assurance that public funds have not been disbursed to the former advisors or their staff since the ruling.
The Institute gave the Controller of Budget 14 days to respond and confirm compliance.
The court found that the offices were created without proper constitutional and statutory processes, including bypassing the Public Service Commission and failing to involve the Salaries and Remuneration Commission in assessing financial implications.
Article 228 of the Constitution mandates the Controller of Budget to oversee withdrawals from public funds and ensure they are authorised by law.
The group had made application for the order to be set aside but the court rejected the same. 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.
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