Maraga: Funds spent on presidential advisers should be refunded

Former Chief Justice David Maraga. /DAVID MARAGA/X

Former Chief Justice David Maraga has welcomed a High Court decision nullifying the appointment of 21 presidential advisers, saying public funds spent on offices later found to be unlawful should be recovered in accordance with the law.

The court invalidated the appointments after finding that they contravened constitutional provisions and public service regulations, particularly those governing the establishment of public offices and the use of public resources.

The decision centred on the failure of the President to comply with Article 132(4)(a) of the Constitution, which requires the establishment of public offices to be undertaken strictly in line with recommendations from the Public Service Commission (PSC).

High Court Judge Bahati Mwamuye, sitting in Nairobi, delivered the ruling on Thursday, declaring the appointments null and void for also having been made without the mandatory input of the Salaries and Remuneration Commission (SRC) on their financial implications.

The judge issued a permanent injunction barring the payment of salaries to the advisers with immediate effect.

“The appointments violated the values and principles of public service under Article 232 of the Constitution, particularly transparency, fair competition and merit, and amounted to an imprudent use of public funds contrary to Article 201(d),” Justice Mwamuye said.

He directed that all 21 presidential advisers cease to hold office, stating that their appointment did not meet the mandatory requirements for establishing public offices under Sections 27 and 30 of the Public Service Commission Act, 2017.

“The process violated both the letter and the spirit of the 2010 Constitution by bypassing the independent recommendatory role of the Public Service Commission under Article 132(4)(a),” the judge ruled.

Reacting to the judgment, Maraga, who served as Chief Justice between October 2016 and January 2021, said the ruling underscored governance concerns that have previously arisen in similar circumstances.

He cited the creation of the office of Chief Administrative Secretary (CAS) as an example.

The CAS position was created on January 24, 2018, to assist Cabinet Secretaries, before it was first declared unconstitutional on April 20, 2021.

The offices were later reintroduced but were again nullified by the courts on July 3, 2023.

Maraga said such positions, in his view, lacked a firm legal foundation and were not aligned with genuine administrative needs.

“I support the High Court’s ruling,” Maraga said. “The invalidated adviser positions drew significant public resources, and where offices are found to be unlawful, any resulting expenditure should be addressed in accordance with the law.”

President William Ruto appointed the 21 advisers in May 2025, a move that drew criticism from some civil society groups and constitutional law experts.

Among those appointed were economist David Ndii, former Cabinet Secretary Monica Juma, legal scholar Makau Mutua, and Jaoko Oburu, the son of Siaya Senator Oburu Odinga.

The ruling followed a petition filed in 2025 by Katiba Institute, which challenged the legality of the appointments, arguing that they were made without adequate public participation as required by the Constitution.

In his judgment, Justice Mwamuye agreed that the establishment of the advisory positions was a matter of national importance requiring public input.

“The proposed creation of an adviser to the President is a matter of significant national concern and one that ought to be subjected to public participation,” he said.

Beyond nullifying the appointments, the court issued a permanent injunction barring the government from making further payments to, or providing facilities for, the individuals in their capacity as advisers.

The judgment also directed the Public Service Commission to conduct a comprehensive audit within 90 days of all offices established within the Executive Office of the President since 2010.

The audit will focus particularly on offices created after August 2022, with a view to determining their constitutional and legal validity.

Justice Mwamuye further directed the PSC to abolish any offices found to have been established unconstitutionally and to file a progress report with the High Court within 120 days.

The ruling is expected to have significant implications for the structure of the Executive Office of the President and could prompt a broader review of offices established within government without clear constitutional or legal grounding.