Attorney General & 4 others v Law Society of Kenya & 3 others
The bottom line
#Kenya's Court of Appeal refused to suspend a High Court ruling that struck down an Executive Order controlling State Corporation staffing, so the judgment stays in force.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have an arguable appeal
- 2.Whether the appeal will be rendered nugatory if stay is not granted
- 3.Whether public interest favours the grant of stay
Key legal issues
#Arguability of the intended appeal
The appeal is arguable because the extent of the President's powers vis-a-vis the PSC over State Corporations' human resource functions remains to be interrogated.
The court found the respondents' authorities inapplicable because neither decision interpreted the President's powers in making executive orders directing State Corporations, and Executive Order No. 3 of 24 May 2024 was not the subject of those decisions. A single arguable point suffices under the Kinyanjui v Ketter standard.
Nugatory limb
The appeal will not be rendered nugatory if stay is refused because the Executive Order was never implemented and existing conservatory orders in Petition No. E303 of 2023 remain in force.
The undisputed evidence of the PSC's CEO showed the impugned Executive Order had been stayed since 5 June 2024 and never operationalized; State Corporations and Public Universities continued operating under pre-existing instruments without crisis. If the appeal succeeds, the regime will simply transition to the Executive Order.
Public interest
Public interest does not favour staying a judgment declaring an unoperationalized Executive Order unconstitutional.
The High Court had pronounced the Executive Order unconstitutional before it was operationalized. The court held it would not be in the public interest to allow an unconstitutional, never-implemented regime to take over an existing regime found sound in law.
Legal principles established
#- A Rule 5(2)(b) applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; in constitutional and governance questions, public interest is an additional consideration.
- A single arguable point suffices for the arguability limb, and it need not be a point that must succeed.
- Where a legal regime has been declared unconstitutional and was never operationalized, public interest does not favour allowing it to displace an existing regime found sound in law.
Court orders
#- 1.The application for stay of execution pending the intended appeal is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Constitutional Petition No. E273 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court judgment pending the intended appeal
The applicants failed the nugatory and public interest limbs of the Rule 5(2)(b) test
Costs
We make no orders as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the applicant needs to demonstrate two limbs, firstly, that he has an arguable appeal, and secondly, that if stay is not granted, the appeal will be rendered nugatory.
a single arguable point is sufficient, and neither is it one that must succeed.
We are not persuaded that in those circumstances, it would be in the public interest to allow a legal regime that has been declared unconstitutional and which has not been operationalized, to take over one that has been existing and found to be sound in law.
For not meeting the nugatory test and the public interest test, this application fails.
The result is that this application is dismissed.
Issues in the judgment
#High Court petition number left blank in the style of cause
Judgment inconsistently refers to Law Society of Kenya as 1st respondent and 5th respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General & 4 others v Law Society of Kenya & 3 others", Case Analysis (2026). Civil Application E655 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1825/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.