Attorney General v Katiba Institute & 8 others
The bottom line
#The Court of Appeal has paused a ruling that declared Presidential Advisor offices unconstitutional, so the advisors keep working while the appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#The test for grant of a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules
The applicant must show the intended appeal is arguable (not frivolous) and that it will be rendered nugatory absent a stay; in constitutional public-interest matters a third condition - that it is in the public interest that stay be granted - may apply.
The Court restated the settled principles from Trust Bank v Investech and adopted the Supreme Court's Munya v Kithinji third condition of public interest. The discretion under Rule 5(2)(b) is original, independent and discretionary but must be exercised judiciously and rationally, not impulsively or out of sympathy, against the facts of each case.
Whether the nugatory limb was satisfied where the affected advisors were already in office
It was satisfied: the 3rd to 23rd Respondents were already in office rendering services when the judgment declared their offices unconstitutional, so declining a stay would likely disrupt the functions of the Office of the President, distinguishing CAS 2 where appointees had not assumed office.
The Court applied its own precedents CAS 1 and CAS 2, aligning the case with CAS 1 (officers already in office, stay granted) rather than CAS 2 (appointees yet to assume office, stay refused). The 1st Respondent's duplication-of-roles objection was held to be an issue for the substantive appeal. A proportionality evaluation between competing public-interest positions supported the grant.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin test that the intended appeal is arguable and that it would be rendered nugatory absent a stay; in constitutional matters a third public-interest condition may be added, and where the officials whose offices were declared unconstitutional were already in office and rendering services, a stay will be granted to preserve institutional continuity pending appeal.
Court orders
#- 1.An order staying execution of the judgment and orders of the High Court of 22nd January 2026 in Constitutional Petition No. E 317 of 2025, including the declaration of unconstitutionality of the creation of the offices of Presidential Advisors, pending the hearing and determination of the intended appeal
- 2.A recommendation to the President of the Court that the intended appeal be heard on a priority basis
- 3.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya
- Constitutional Petition No. E 317 of 2025
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; Articles 25, 47 and 50 of the Constitution; sections 3, 3A & 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Katiba Institute & 8 others", Case Analysis (2026). Civil Application of 27th January 2026 (arising from High Court Constitutional Petition No. E 317 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/564/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.