NAIROBI, Kenya, Feb 3 – The High Court has rejected an application by presidential advisors and other interested parties seeking to suspend a judgment that nullified the creation of advisory offices to the President, dealing a fresh setback to efforts to keep the positions in place as an appeal looms.
In a ruling delivered on Monday, Justice Bahati Mwamuye said the request to stay the January 22 judgment was res judicata, noting that the same arguments had already been raised and dismissed immediately after the judgment was delivered.
“The same prayers were sought by the 1st and 2nd respondents in their oral application for stay immediately after the delivery of the judgment,” the judge said.
The applicants had argued that a temporary stay was necessary to allow for orderly handover, compliance with the ruling and to facilitate an intended appeal at the Court of Appeal.
The Attorney General and the Public Service Commission (PSC) supported the application, warning that immediate enforcement of the judgment could disrupt government operations.
However, the court sided with Katiba Institute, which opposed the application, finding that the fresh filing merely recycled earlier arguments and failed to meet the narrow exceptions required to bypass the doctrine of res judicata.
The case arose from a petition filed in 2025 challenging the Executive’s decision to create several offices titled Advisors to the President, and to appoint economists, policy experts and former senior public officials to those roles.
Katiba Institute argued that the advisory offices were created outside constitutionally recognised state structures and without the involvement of oversight bodies such as the PSC and the Salaries and Remuneration Commission (SRC).
The petitioners also contended that the offices duplicated existing constitutional functions, blurred the line between political and public service roles, and exposed public funds to unapproved expenditure, in breach of the Constitution.
On January 22, 2026, the High Court agreed, declaring the advisory offices unconstitutional and holding that while the President is entitled to advice, it must be sourced through lawful and constitutionally established mechanisms.
In a related decision delivered on Monday, the court dismissed a separate application seeking to cite two presidential advisors for contempt over alleged social media comments on the judgment, ruling that the threshold for contempt had not been met.
“The threshold for a finding of contempt of court has not been met,” Justice Mwamuye said.
The ruling allows the January judgment to take full effect, with the court reiterating that dissatisfaction with a decision can only be addressed through a proper review or appeal — not repeated applications seeking the same relief.
