Judge dismisses plea by Ndii, 20 others to stay in office

The High Court has dismissed an application by 21 Presidential Advisors seeking to remain in office after their positions were declared unconstitutional.

Presiding over the case, Justice Bahati Mwamuye rejected the application for a stay of execution, which sought to pause the enforcement of a prior ruling that had found the creation and staffing of these advisory roles inconsistent with the constitution.

The ruling underscores a judicial trend emphasising strict adherence to constitutional procedures in public appointments and the management of taxpayer funds.

The dispute originated from a petition filed by the Katiba Institute, a constitutional watchdog, which challenged the establishment of the advisory roles by the presidency.

In its primary judgment delivered in January 2026, the court found that the executive had bypassed both the Public Service Commission (PSC) and the Salaries and Remuneration Commission (SRC).

The judgment noted that the offices were created without the required public participation or parliamentary oversight.

The court concluded that the offices were established in a manner that conflicted with principles of transparency and fiscal responsibility enshrined in the 2010 constitution.

During today’s proceedings, the 21 advisors—including David Ndii, Monica Juma, and Prof. Makau Mutua—requested a stay, arguing that an immediate exit could disrupt operations at State House.

Justice Mwamuye dismissed this argument, noting that the matter had already been fully adjudicated.

“The doctrine of res judicata [a matter already judged] prevents a matter from being repeatedly litigated,” he stated, adding that the legal arguments presented did not meet the high threshold required to halt a constitutional declaration.

The Katiba Institute, represented by counsel Joshua Nyawa, argued that the executive must operate within the law.

“The President and the Executive have previously delivered public services within the framework established by the constitution,” the institute said in its submissions.

Following the ruling, Nyawa stated that the decision reinforces that “strict compliance with the constitution is not just a wish but a binding command for all state organs.”

The consequences of the court’s decision are immediate.

The National Treasury is barred from disbursing any funds for salaries, allowances, or benefits to the 21 advisors.

In addition, the court’s broader structural directive remains in effect.

The PSC is required to conduct a comprehensive audit of all offices created within the executive since 2010 to ensure constitutional compliance, with a 90-day deadline for completion.

The ruling has been widely interpreted as a move to reinforce constitutional governance and ensure that public service appointments remain transparent, merit-based, and legally sound.