Katiba Institute v Attorney General & 2 others; Ndii & 20 others (Interested Parties) (Petition E317 of 2025) [2026] KEHC 258 (KLR) (Constitutional and Human Rights) (22 January 2026) (Judgment)

Court: High Court at Nairobi (Milimani Law Courts)

Delivered on January  22 ,2026 by Justice Bahati Mwamuye

Background

The petition arose from a constitutional challenge brought by Katiba Institute against the Attorney General, the Public Service Commission (PSC), and the Salaries and Remuneration Commission (SRC) following the creation of several offices designated as “Advisors to the President” and the subsequent appointment of twenty-one individuals to those offices. The petitioner contended that the President, acting through the Office of the Attorney General, unilaterally established these offices without adhering to the mandatory constitutional and statutory framework governing the creation of public offices. It was argued that the process bypassed the constitutional role of the PSC under Article 234, ignored the advisory mandate of the SRC under Article 230, and was undertaken without public participation contrary to Articles 10 and 232 of the Constitution.

Katiba Institute further asserted that the impugned actions resulted in a bloated and duplicative executive structure, occasioned imprudent use of public funds in violation of Article 201, and undermined the values of transparency, accountability, and meritocracy that underpin the public service. The appointments were said to have been made through handpicking rather than fair competition, with no disclosure of the rationale, functions, number, or remuneration of the advisors. The petitioner therefore sought declarations that the creation of the offices and the appointments were unconstitutional, orders of certiorari quashing the decisions, and structural reliefs directing the PSC to audit and abolish unlawfully created offices.

The Attorney General and the PSC opposed the petition, maintaining that the President acted within Article 132(4)(a) of the Constitution and that PSC recommendations were duly obtained in accordance with the Public Service Commission Act and Regulations. The SRC argued that no specific cause of action had been disclosed against it. The Interested Parties(the  advisors ) did not participate in the proceedings despite being duly served.

Issues for Determination

From the pleadings and submissions, the Court isolated several issues for determination. The first issue was whether the petition met the threshold of precision required in constitutional litigation, particularly in relation to the allegations made against the Salaries and Remuneration Commission.

The  second issue was  whether the establishment of the offices of Advisors to the President and the appointment of the Interested Parties complied with Article 132(4)(a) of the Constitution and the applicable statutory framework.

The  third issue considered by the Court was whether the process complied with sections 27 and 30 of the Public Service Commission Act and Regulation 27 of the Public Service Commission Regulations, 2020. In this it examined whether the failure to involve the Salaries and Remuneration Commission in assessing the financial implications of the offices rendered the process unconstitutional.

The fourth  issue and final issue  was whether the establishment of the offices required public participation, whether the appointments violated the values and principles of public service under Article 232 , whether the use of public funds met the standard of prudence under Article 201, and whether the Respondents violated the rights to access information under Article 35 and fair administrative action under Article 47 of the Constitution.

Court’s Determination

On the first issue of precision, the Court held that the petition satisfied the threshold in Anarita Karimi Njeru v Republic (Miscellaneous Criminal Application 4 of 1979) [1979] KEHC 30 (KLR) (Crim) (29 January 1979) (Judgment)  as against the Attorney General and the Public Service Commission, as it clearly identified the impugned conduct and the constitutional provisions allegedly violated. However, the Court found that the allegations against the Salaries and Remuneration Commission were vague and derivative, with no specific breach demonstrated. Consequently, the petition was dismissed as against the SRC, with each party bearing its own costs.

Regarding the second and  core issue of constitutionality, the Court held that Article 132(4)(a) did not grant the President unfettered power to create public offices. That power was expressly conditioned on acting in accordance with the recommendation of the Public Service Commission. Interpreting Article 132(4)(a) together with Article 259(11), the Court emphasized that a valid recommendation must be substantive, independent, and the product of a genuine deliberative process. Upon examining the correspondence relied on by the respondents, the Court found that the PSC merely reacted to requests naming specific individuals, approved the creation of offices and appointments simultaneously, and failed to demonstrate any internal deliberations, workload analyses, or assessment of financial implications. This reduced the PSC’s role to a rubber stamp, contrary to its constitutional independence.

The Court considered the third issue  whether the process of recruiting  the advisors violated sections 27 and 30 of the Public Service Commission Act. The requests for establishment of the offices lacked the mandatory information required by law, including comprehensive workload analysis, financial implications, grading justification, and the verification statement mandated by section 27(2). These omissions were held to be substantive and fatal, rendering the establishment of the offices unlawful. The Court also found non-compliance with Regulation 27 of the PSC Regulations, noting that the PSC failed to determine the appropriate number of advisors needed and did not ensure that the proposed advisors possessed unique competencies unavailable within the public service. Although the Court dismissed the case against the SRC for lack of precision, it held that the failure by the Attorney General and the PSC to seek and incorporate SRC advice on the fiscal implications of creating the offices constituted a further constitutional flaw. The establishment of senior advisory positions had a direct impact on the public wage bill and should have involved SRC input in line with Articles 201 and 230 of the Constitution.

On fourth and final issue , the Court held that the creation of multiple, publicly funded advisory offices within the Executive Office of the President was a matter of significant national concern that transcended internal administration. The absence of any form of public participation violated Articles 10 and 201 of the Constitution. The Court also found that the opaque, non-competitive appointment process violated the values and principles of public service under Article 232, particularly the requirements of transparency, fair competition, and merit.The Court concluded that the creation of the offices and appointments amounted to imprudent use of public funds in violation of Article 201, breached the right to access information under Article 35 due to failure to proactively disclose relevant details, and violated the right to fair administrative action under Article 47 as the process was unlawful, unreasonable, and procedurally unfair.

Consequently, the Court declared the establishment of the offices and the appointments unconstitutional, quashed the impugned decisions, and issued structural orders directing the Public Service Commission to audit and abolish unlawfully created offices.