Nairobi, Kenya – The Court of Appeal of Kenya has temporarily halted the implementation of a High Court judgment that declared several advisory positions in the Office of the President unconstitutional.
In a ruling delivered on Friday, the appellate court granted an order staying the execution of the decision by the High Court of Kenya pending the hearing and determination of an appeal filed by the government.
The judges noted that the intended appeal raises arguable legal issues that warrant consideration by the court. They explained that the key question in determining the application was whether failure to grant a stay would render the appeal nugatory if it eventually succeeds.
High Court Decision Challenged
The High Court had earlier ruled that the establishment of offices occupied by the 3rd to 23rd respondents, who serve as advisors to the William Ruto, was unconstitutional. The decision raised concerns about the legality of several advisory roles within the presidency.
In deciding whether to suspend the ruling, the Court of Appeal examined whether the effects of the High Court judgment could be reversed if the government’s appeal succeeds or whether damages could adequately compensate affected parties.
The judges emphasized that applications seeking a stay must be assessed based on the specific facts and circumstances of each case, particularly when they involve matters of significant public interest.
Competing Public Interest Concerns
Lawyers representing the government and supporting respondents argued that immediate implementation of the High Court ruling would disrupt the functioning of the Executive, potentially paralysing operations within the Office of the President.
They warned that removing the advisors without proper handover processes could lead to administrative instability and constitutional uncertainty.
However, the first respondent opposed the stay application, arguing that suspending the ruling would effectively allow the continuation of actions already declared unconstitutional.
Comparison With CAS Case
The appellate judges also considered previous decisions involving the now-defunct Chief Administrative Secretary (CAS) positions, which had similarly been declared unconstitutional.
In an earlier ruling, the Court of Appeal declined to suspend the High Court judgment, stating that public service carried out in violation of the Constitution could not be justified.
“Service rendered in violation of the Constitution is no service at all in the eyes of the law,” the court had held in that earlier decision.
However, the judges said the current case differs because the presidential advisors were already serving in their roles before the High Court ruling was issued, meaning their immediate removal could disrupt the operations of the presidency.
Stay Granted Pending Appeal
After reviewing the arguments, the court concluded that the applicant had satisfied the legal requirements for granting a stay.
“In the circumstances, we are convinced that the applicant has satisfied the two limbs for the grant of the order sought,” the judges ruled.
The court therefore ordered that the execution of the High Court judgment be suspended until the appeal is heard and determined. It also recommended that the President of the Court of Appeal prioritise the hearing of the case, citing its public interest implications.
The court further directed that the costs of the application will be determined at the conclusion of the appeal.
