The troubling Court of Appeal stay order on Ruto's Advisers

The recent ruling by the Court of Appeal allowing the President’s advisers to remain in office pending the determination of a substantive appeal has generated intense public debate. Much of the commentary has focused on two procedural concerns: The speed with which the ruling was delivered about a month earlier than expected, and the court’s failure to notify Katiba Institute, the petitioner that had successfully challenged the advisers’ appointments in the High Court, of the hearing and the ruling.

These two concerns are legitimate. Yet, in my view, they also obscure deeper and more troubling issues raised by the case. Three matters stand out. First, the extraordinary level of resources mobilised by the Attorney General’s (AG) office to defend the advisers.

Second, the Court of Appeal’s apparent failure to apply the well-established legal principles governing the grant of a stay of execution. Third and perhaps most significantly, the court’s decision to grant a stay without addressing the fact that a parallel High Court judgment invalidating the advisers remains fully in force.

One striking feature of the proceedings was the line-up of advocates representing the AG. The State was represented by the Solicitor General Shadrack Mose, his Deputy Solicitor General, the Chief State Counsel, and a senior counsel from the AG’s office. At the same time, the President’s advisers were represented by three senior private lawyers. In sharp contrast, Katiba Institute, as is characteristically the case, was represented by two comparatively junior advocates.

This concentration of senior legal talent to defend patently illegal offices raises important questions about the allocation of public resources. On most days, when the AG’s office handles cases involving the loss of billions of shillings in public funds, the matters are typically assigned to junior State counsel. It is rare to see the Solicitor General personally appear in court, let alone appear in tow of an endless string of lawyers from his office.

The AG’s decision to mobilise her most senior staff to prosecute what is essentially an interlocutory application signals the level of political importance she attached to the case. It also reveals the skewed and politically inspired priorities guiding the allocation of State legal resources.

There is also a deeper irony here. One of the central reasons the High Court invalidated the offices of the President’s advisers was that they violated constitutional principles of prudent use of public finance. Yet, in defending these very offices, the AG’s chambers deployed an unusually large team of senior lawyers precisely in a matter involving allegations of wasteful public expenditure. Of note is that Article 156 of the Constitution establishes the AG as the defender of the public interest. The optics of this case, however, suggest that the office may instead be acting primarily to protect the interests of the presidency and its political allies and cares nought about public interest.

Equally troubling is the Court of Appeal’s approach to the legal principles governing the grant of a stay order. Anyone who followed the recent interviews for appointment to the Court of Appeal judges would recall a familiar question posed to candidates: What legal test should guide the court when determining an application for stay under Rule 5(2)(b)? The answer is well settled.

Three conditions must generally be satisfied. First, the appeal must be arguable, meaning that it raises legitimate legal issues worthy of judicial consideration. Second, the court must be satisfied that if the stay is not granted, the appeal would be rendered nugatory. In plain terms, this means the appeal would become useless or incapable of producing a meaningful remedy. Third, the court must consider whether granting the stay serves the public interest.

These principles are neither new nor controversial. They form the basic framework through which the Court of Appeal exercises its discretion.

Yet the ruling on the President’s advisers appears to bypass one of the most critical elements of this test: The nugatory aspect. Yes, the judges do a recital of what the parties told them about the nugatory principle. However, the court does not explain or expressly make a finding on how or why the appeal would become nugatory if the stay were not granted. Perhaps because it is difficult to see how the appeal could have been rendered useless. If the advisers ultimately succeeded on appeal, the positions could still be reinstated with back pay. The absence of a clear explanation on this point suggests that the court either overlooked or inadequately addressed a central requirement of the law.

The most fundamental problem with the ruling, however, arises from the existence of two separate High Court judgments on the same issue. Two petitions had been filed challenging the constitutionality of the President’s advisers. One was brought by Katiba Institute; the other by lawyer Lempaa Suyianka. Both cases were heard at the High Court by Justice Bahati Mwamuye, who delivered separate judgments on January 22, 2026. In both decisions, the court declared the offices unconstitutional and held that the advisers were in office illegally.

When the AG appealed and sought a stay of the High Court judgment, the application was filed only in respect of the Katiba Institute case. However, the AG initially attempted a curious manoeuvre: She asked the Court of Appeal to extend the stay order to the judgment in Mr Suyianka’s case even though no substantive application had been filed against that judgment.

During the hearing, Suyianka sought to be joined as an interested party. His participation would have required the AG to file a separate application against his judgment. Rather than pursue this legally prudent procedural route, the AG withdrew the request to extend the stay to Suyianka’s judgment.

At that point, the judges should have posed a critical question: What is the practical value of granting a stay in one case when an identical judgment in another case remains fully operative?

Surprisingly, the court did not ask this question. Instead, it quickly agreed to the withdrawal request and, in a few weeks, proceeded to grant the stay in the Katiba Institute matter while leaving the Suyianka judgment intact and silent on its implications.

The result is a deeply paradoxical situation. Even if the advisers return to office on the strength of the Katiba’s stay order, the High Court’s orders in Suyianka’s case remain binding. In theory, this means that the advisers could still face contempt proceedings for acting in defiance of those orders. In substance, they would violate the Constitution if they returned to office.