NAIROBI, Kenya — Katiba Institute has urged the High Court to reject an application by 21 advisers appointed by President William Ruto seeking a stay of a judgment that declared their appointments unconstitutional and therefore null and void.
In court filings, the constitutional watchdog argues that the advisers have no legal basis to ask the same court to suspend or review its own decision, insisting that the ruling can only be challenged through an appeal to a higher court.
Katiba maintains that once a court delivers a final judgment, it becomes functus officio — meaning it lacks jurisdiction to reopen or reconsider the matter.
“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,” Katiba states in its response.
Through its lawyer, Malidzo Nyawa, the Institute further argues that the advisers have failed to meet the legal threshold for a stay, noting that they have not demonstrated any prejudice they would suffer if the orders are not suspended.
The advisers have claimed that their absence would cripple government operations, an argument Katiba dismisses as unfounded and exaggerated.
The Institute points out that the Executive has operated within the constitutional framework since the promulgation of the 2010 Constitution 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,” Katiba argues, questioning what “cataclysmic or debilitating consequences” would suddenly arise while Kenyans await the outcome of any appeal.
Katiba also faults the advisers for personally moving the court, arguing that if there were legitimate concerns about disruption to government operations, the application should have been filed by the Attorney General on behalf of the Executive.
“If the application before the court is not about the Executive, whose interest is the application meant to serve?” Katiba asks, adding that the advisers are acting to protect their own interests rather than those of the public.
The High Court had earlier ruled that the creation and staffing of the advisers’ offices violated the Constitution, effectively voiding their appointments and setting the stage for a fresh legal battle over the limits of executive power.
