NAIROBI, Kenya — The Court of Appeal of Kenya has temporarily suspended the implementation of a High Court of Kenya 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 High Court decision pending the hearing and determination of an appeal filed by the government.
The ruling allows individuals serving in advisory roles within the office of President William Ruto to remain in their positions until the case is fully heard.
The appellate judges noted that the intended appeal raises substantive legal questions that warrant consideration by the court.
They said the key issue was whether failing to suspend the High Court ruling would render the government’s appeal nugatory if it ultimately succeeds.
“In the circumstances, we are convinced that the applicant has satisfied the two limbs for the grant of the order sought,” the court ruled.
The judges emphasised that applications for stay orders must be evaluated based on the specific facts and circumstances of each case, particularly where competing public interest concerns are involved.
The legal dispute stems from an earlier High Court ruling which found that the creation of several advisory positions held by the 3rd to 23rd respondents within the Office of the President violated the Constitution.
The court had ordered that the positions be declared unconstitutional, triggering legal and political debate over the structure of the executive office.
Government lawyers later moved to the Court of Appeal seeking a suspension of that ruling while preparing a formal appeal.
Lawyers representing the government argued that immediate implementation of the High Court judgment could disrupt executive operations and paralyse key administrative functions within the presidency.
They told the court that the abrupt removal of advisors could create instability and constitutional uncertainty, particularly because formal transition and handover processes had not yet been conducted.
The legal team maintained that allowing the advisors to continue serving temporarily would preserve operational continuity while the appeal is determined.
However, the application for suspension was strongly opposed by the first respondent in the case, who argued that granting a stay would allow the continuation of actions already declared unconstitutional by the High Court.
They maintained that the Constitution should not permit individuals to continue occupying offices found to be unlawful.
In its reasoning, the Court of Appeal referred to previous rulings involving the now-defunct position of Chief Administrative Secretary (CAS), which had also been declared unconstitutional.
In one earlier decision, the appellate court declined to suspend a ruling abolishing the CAS offices.
“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.
Also Read: High Court rules creation of Ruto’s 21 advisory offices unconstitutional
However, the judges noted that the circumstances of the current case differ because the presidential advisors were already serving in their roles when the High Court delivered its judgment.
According to the bench, removing them immediately could interfere with the functioning of the Office of the President.
Given the significant constitutional questions and public interest involved, the Court of Appeal recommended that the President of the court prioritise the hearing of the appeal.
The judges also directed that costs related to the application will be determined after the final outcome of the appeal.
Legal analysts say the case could become another landmark constitutional test on the limits of executive authority and the structure of advisory roles within the presidency.
