The High Court has allowed Katiba Institute’s petition challenging the creation and staffing of the Offices of Advisors to the President, declaring the move unconstitutional for violating the Constitution and established public service governance frameworks.

In its judgment, the Court found that the establishment of the offices and the appointment of advisors were undertaken without a clear constitutional or statutory basis and in a manner that bypassed the mandate of the Public Service Commission (PSC). The Court held that the President cannot create public offices and appoint office holders in the public service outside the framework set out in the Constitution, legislation, and PSC procedures. Additionally, the High Court faulted the President for proceeding to create offices and appoint the advisors without seeking the input of the Salaries and Remuneration Commission.

The Court further emphasized that executive authority under Article 131 of the Constitution must be exercised in a manner consistent with the principles of good governance, including transparency, accountability, merit-based recruitment, fiscal responsibility, and meaningful public participation. Any structure that creates permanent or salaried positions within the public service must therefore comply with these standards.

The judgment also addressed concerns about the use of public funds, noting that the creation of the offices had significant budgetary implications that were not subjected to proper legal and institutional oversight. The Court warned that allowing such practices would open the door to abuse of executive power, undermine constitutional safeguards, and weaken the professional and independent character of the public service.

As a remedy, the Court nullified the decision to establish and staff the Offices of Advisors to the President and affirmed the central role of the Public Service Commission in regulating appointments, promotions, and establishment of offices within the public service.

Importantly the High Court issued an innovative remedy in the nature of structural remedy requiring the Public Service Commission to conduct a comprehensive audit within 90 days of all offices established within the public service for the executive office of the president since August 2022 and abolish all offices that were created unconstitutionally.

In welcoming this judgment, Katiba Institute’s Litigation Counsel, Joshua Malidzo Nyawa stated that the High Court yet again stood up to the expectations of the Kenyans as the people’s court. That the decision evidences the shift from mere symbolic constitutionalism to real constitutionalism. That strict compliance with the Constitution is not just a wish but a binding commandment.