The Court of Appeal of Kenya has declined to suspend a High Court decision that declared the office of the President’s advisors unconstitutional, effectively keeping President William Ruto’s advisors out of office.
In a ruling delivered under a certificate of urgency, a three-judge bench dismissed an application by the Attorney General seeking interim orders to stay the High Court judgment pending the hearing and determination of an appeal.
“Upon consideration of the application, we decline to issue an interim order staying execution of the High Court's judgment pending our ruling,” the bench stated.
High Court Judgment Still in Force
The High Court of Kenya had previously ruled that the creation of advisory offices for the President and the appointment of 21 individuals to those offices were unconstitutional.
The court found that the appointments violated constitutional provisions and relevant public service laws. It declared them null and void ab initio — meaning they had no legal effect from the outset.
As part of its orders, the High Court quashed all decisions relating to the establishment of the advisory offices and the appointments made under them.
Permanent Injunction and Audit Order
The court also issued a permanent injunction restraining the Public Service Commission (PSC), the Salaries and Remuneration Commission (SRC), and any other state organ from recognising, facilitating, or effecting payments or benefits arising from the advisory positions.
Additionally, the PSC was directed to conduct a comprehensive audit of all offices created within the Executive Office of the President since the promulgation of the 2010 Constitution, with special attention to offices established after August 2022.
Delivering the High Court judgment on January 22, 2026, Justice Bahati Mwamuye criticised the non-competitive process used to create the advisory roles, stating that it undermined constitutional principles of transparency, accountability and efficiency in public service.
He observed that the establishment of what he termed a parallel and opaque advisory structure offended the constitutional ethos governing public service.
Petition by Civil Society
The case arose from petitions filed by the Katiba Institute and lawyer Vincent Lempaa Suyianka. The petitioners argued that the lack of a clear legal framework regulating presidential advisors had created a loophole enabling unconstitutional appointments.
They further contended that the advisory offices operated outside established public service structures and without legislative backing, raising concerns over governance, accountability and the use of public funds.
What the Appeal Court Decision Means
With the Court of Appeal declining to grant a stay, the High Court orders remain fully in effect. This means the advisory offices cannot operate, and no payments or benefits linked to them can legally be processed until the appeal is heard and determined.
The appellate court’s decision marks a significant development in the ongoing legal battle over the structure and legality of presidential advisory appointments.
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