Katiba Institutes opposes bid by Ruto's advisors to return to office

The Katiba Institute has asked the High Court to dismiss an urgent application by 21 presidential advisers seeking a 180-day stay to return to work after their appointments were declared unconstitutional.

In a response filed in court, the lobby argued that the advisers, including economist David Ndii, cannot challenge the High Court’s decision declaring their appointments unconstitutional through the same court, but must instead appeal to the Court of Appeal.

Through its lawyer Malidzo Nyawa, the Katiba Institute contended that the advisers have no legal basis to seek a stay or review, noting that once a court delivers a final judgment, it is final and cannot be reopened or reconsidered.

“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,” Nyawa stated in the response filed in court.

In an affidavit filed by Katiba Institute, through its Executive Director,  Nora Mbagathi, said the application by the presidential advisers was legally unfounded.

"Courts deliver final judgments for a reason. Public offices belong to Kenyans, not individuals. No one is above the law. Attempts to ignore a final court ruling undermine the Constitution and public trust in governance," Mbagathi said.

The lobby further argued that the application for a stay is unmerited, noting that the advisers have failed to demonstrate any prejudice they would suffer if the orders are not suspended.

 Katiba also 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?” Katiba posed in the court papers.

The institute also argued that if there were genuine concerns about disruption to government operations, it would be the Attorney General, not the advisers, who should 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,” the court papers read.

The 21 presidential advisers filed the urgent application seeking a temporary stay of the High Court judgment just five days after Justice Bahati Mwamuye invalidated their offices on January 22, 2026, and ordered the immediate cessation of their salaries, allowances, and benefits.

Alongside David Ndii, other advisers seeking the stay include Monica Juma, Jaoko Oburu, Makau Mutua, Harriet Chigal, Ali Mahat Somane, Abdi Guliye, Dominic Menjo, Sylvia Kangara, Edward Kisiang’ani, Joseph Boinnet, Sylvester Kasuku, Nancy Laibuni, Kennedy Ogeto, Augustine Cheruiyot, Henry Kinyua, Joe Ager, Karisa Nzai, Mohammed Hassan, Steven Otieno, and Christopher Doye Nakuleu.

In their court papers, the advisers requested the court to suspend the judgment's implementation for 180 days to allow them to file an appeal before the Court of Appeal.

“This honourable court delivered its judgment on 22nd January 2026, invalidating the offices and appointments held by the Interested Parties/Applicants and issuing coercive and structural orders with direct and far-reaching operational consequences,” the application states.

The advisers warned that without interim protection, their appeal would be rendered ineffective.

“Absent interim protection, the intended appeal risks being rendered illusory, not by delay or inaction, but by the implementation of the orders of this honourable court,” they argued.

In a supporting affidavit sworn by Joe Ager, the advisers said the judgment has immediately altered the status quo and triggered irreversible consequences.

“Once the impugned offices are abolished and consequential procedures initiated, the status quo ante cannot practically be restored, even if the intended appeal is ultimately successful, making the appeal nugatory,” they stated.

They also argued that the ruling prevents them from even reporting to duty for handover or transition.

“Absent a temporary stay, the 21 advisors will be rendered incapable of lawfully reporting to duty even for purposes of transition, handover, or safeguarding of official records, and without a temporary stay, they risk immediate prejudice before the Court of Appeal reviews the matter,” the application states.

The advisers further emphasized that their roles are critical to government operations, performing specialized advisory functions in areas including national security, economic policy, intergovernmental coordination, and constitutional affairs.

“The abrupt removal of the Interested Parties pursuant to the impugned judgment would create an immediate operational vacuum, disrupt ongoing programmes and fracture advisory processes that have been built incrementally over time,” the application reads.

Katiba Institute had successfully argued in court that the advisers’ appointments violated constitutional and statutory requirements governing public offices, leading to the High Court’s decision to invalidate the advisory positions.