Civil society organisation, the Katiba Institute, has written to the Controller of Budget Office demanding strict compliance with a High Court ruling that declared the creation and staffing of offices for Presidential Advisors unconstitutional, intensifying scrutiny over the government’s use of public funds.
In a letter dated February 4, 2026, addressed to Controller of Budget Margaret Nyakang’o, the organisation sought written confirmation that no funds have been approved for the former advisers or their offices since January 22, when the High Court nullified the positions.
“I write to draw your attention to the aforementioned judgment and to request confirmation that, in line with Article 228, no payments to the former Presidential Advisers, their staff, or offices have been approved since January 22, 2026, nor will they be approved hereafter,” Katiba Executive Director Nora Mbagaithi said.
The move shifts the dispute from the courtroom to Kenya’s public finance oversight system, placing the Controller of Budget under scrutiny regarding whether funds have continued flowing to the affected offices despite the court’s decision.
Under the Constitution, the Controller of Budget serves as a gatekeeper for public spending, authorising withdrawals from public funds and ensuring expenditures comply with the law.
The demand follows a High Court decision rejecting an attempt by the 21 former advisers to suspend the January ruling.
The court dismissed their application for a stay of execution, allowing full enforcement to proceed.
Among those affected are David Ndii, Makau Mutua, Monica Juma, Harriet Chigai, and Edward Kisiang’ani, who had served in various advisory roles to the President.
In its January verdict, the court ruled that the advisory offices lacked a clear legal basis and duplicated roles already existing within the public service.
“The court found that the establishment of these offices and the appointment of advisers were undertaken without constitutional or statutory backing, bypassing the mandates of the Public Service Commission (PSC) and the Salaries and Remuneration Commission (SRC),” Katiba stated in its letter.
The court also flagged concerns over public finance management, noting the offices carried “significant budgetary implications” without proper legal and institutional oversight.
As part of the judgment’s implementation, the PSC and SRC were ordered to cease recognising the posts and stop related payments.
Additionally, the PSC was directed to conduct a 90-day audit of offices created under the Executive Office of the President since the 2010 Constitution.
The advisers, listed as interested parties in the case, swiftly returned to court seeking a stay of execution.
They argued that a temporary return would facilitate an orderly transition, protect their intended appeal, and prevent prejudice to the President. The Attorney General, PSC, and SRC supported their application.
However, the court dismissed the bid, citing the doctrine of res judicata, which bars relitigation of matters already conclusively decided.
“I find and hold that the application dated January 27, 2026, is indeed res judicata,” the judge ruled, noting similar stay requests had been rejected shortly after the January 22 judgment.
The court warned against “cyclic litigation,” stating that repeatedly revisiting settled issues exacerbates case backlogs and undermines judicial certainty.
“Where the substance and arguments are identical, res judicata bars a second attempt,” the judge affirmed, effectively ending any prospect of a temporary return to office.
With enforcement now unimpeded, Katiba’s letter turns attention to the Controller of Budget, whose constitutional mandate under Article 228 includes authorising withdrawals from public funds and ensuring lawful expenditure.
By demanding confirmation that no payments have been approved post-judgment, Katiba seeks to ensure the ruling has financial as well as administrative consequences.
“The judgment also addressed concerns about the use of public funds,” Ms Mbagaithi wrote, emphasizing that the offices’ creation lacked proper oversight. The letter requested a response within 14 days.
The dispute originated from Katiba’s petition, which argued that the advisory roles duplicated existing offices, encroached on public service functions, and were established without legal checks.
The court concurred, underscoring that public sector appointments and remuneration must follow PSC and SRC procedures and be rooted in statute or the Constitution.
While the advisers retain the right to appeal at the Court of Appeal, the High Court has affirmed they have no legal basis to remain in office pending further litigation.
