Katiba Institute asked the court to decline granting a stay to an application made by President William Ruto’s 21 advisors whose appointments were recently declared null and void.
The organization argued that the advisers have no legal basis to seek a stay or review of the judgment, maintaining that the High Court’s decision was final and can only be challenged through an appeal to a higher court.
The institute contends that 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.
Through its lawyer, Malidzo Nyawa, Katiba further argued that the application for stay is unmerited, noting that the advisers have failed to demonstrate any prejudice they would suffer if the orders are not suspended.
Katiba Institute dismissed claims that the absence of the advisers 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 been 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.
“If the application before the court is not about the Executive, whose interest is the application meant to serve? It is clear that the application is brought by the Interested Parties to serve their own interests,” court papers state.
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.
“Decisions as to whether to retain, replace, restructure or dispense with advisory support within the Executive are inherently matters of executive judgment, best assessed by the President, who is constitutionally vested with responsibility for the daily management of government and the delivery of the electoral mandate,” read the court documents.
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