Court of Appeal suspends ruling declaring Ruto advisors' offices unconstitutional

The Court of Appeal has temporarily halted the implementation of a High Court judgment that declared the creation of several advisory positions in the Office of the President unconstitutional.

In a ruling delivered on Friday afternoon, the Appellate court granted an order staying the execution of the judgment pending the hearing and determination of an intended appeal filed by the government.

The judges noted that it was not disputed that the intended appeal raises arguable issues that deserve consideration by the court.

The key question for determination, they said, was whether failure to grant a stay would render the appeal nugatory if it ultimately succeeds.

The High Court had earlier issued orders declaring that the establishment of offices held by the 3rd to 23rd respondents, who serve as advisors to the President, was unconstitutional.

In determining whether to suspend the decision, the Court of Appeal considered whether the effects of the High Court judgment would be reversible if the appeal later succeeded, or whether damages would adequately compensate the affected parties.

The court also observed that applications for stay must be considered based on the specific facts and circumstances of each case.

Judges noted that the matter involves competing public interest considerations, requiring a proportionality assessment before deciding whether to grant the orders sought.

Lawyers for the applicant and supporting respondents argued that failing to suspend the judgment would paralyse Executive functions and cause administrative disruption within the Office of the President.

They also warned that the immediate removal of the advisors could create instability and constitutional uncertainty, particularly because formal handover processes had not taken place.

However, the first respondent opposed the application, arguing that allowing the stay would permit the continuation of unconstitutional actions despite the High Court’s findings.

The court examined earlier Appellate court decisions involving the now-defunct position of Chief Administrative Secretary (CAS), which had also been declared unconstitutional.

In one case, the Court of Appeal declined to suspend the ruling, reasoning that allowing individuals to serve in offices created in violation of the Constitution could not be justified even if services were rendered to the public.

“Service rendered in violation of the Constitution is no service at all in the eyes of the law,” the court had held in that earlier decision.

However, the judges said the current case differs from that situation because the advisors were already in office and performing their duties when the High Court issued its judgment.

The court noted that removing them immediately could disrupt the functioning of the Office of the President.

The judges further stated that concerns raised about possible duplication of roles would be addressed during the substantive hearing of the appeal.

“In the circumstances, we are convinced that the applicant has satisfied the two limbs for the grant of the order sought,” the court ruled.

The judges therefore issued an order staying the execution of the High Court judgment until the appeal is heard and determined.

Given the public interest nature of the dispute, the Court of Appeal recommended that the President of the court prioritise the hearing of the intended appeal.

The court also directed that the costs of the application will be determined based on the outcome of the appeal.