The High Court in Nairobi has suspended an order giving Head of Public Service Felix Koskei authority to keep the public seal.

Justice Chacha Mwita restrained Kosgey and Attorney General Dorcas Oduor from implementing the Executive Order No. 2 of 2023 until such a time the court will issue other orders in the case filed by Katiba Insitute.

“A conservatory Order is hereby issued restraining or stopping implementation of Executive Order No. 2 of 2023 to the extent that it purports to reorganize government and transfer the public seal from the custody of the Office of the Attorney General to the Head of Public Service in the Executive Office of the President, until further orders of the Court,” ruled Justice Mwita.

In its case, the human rights lobby argued that the Seal was illegally moved from the AG to the hands of Koskei through an Executive order.

Katiba Institute claims that Executive Order No 2 of 2023 remains operational despite its clear violation of the Constitution and the separation of powers.

“The transfer of the seal from the Office of the Attorney-General to the Office of the President effectively centralizes the power to approve and seal important national agreements without the Attorney General’s approval,” lawyer Kevin Walumbe told the court.

“Further, it removes the need for the Attorney-General to give legal advice and approval before Executive actions are made legally binding on all State organs.”  

The court heard that the Seal, which is fixed on critical documents, agreements and treaties to give them legality, is a symbol of the government’s authority. 

“Once affixed with the public seal, documents gain legal authority and are binding on all organs of the State. The rationale for making the Attorney General the custodian of the Public Seal was to ensure the Attorney General’s approval in key decisions relating to public matters prior in an aim to avoid improper use,” Walumbe argued.

Katiba said President William Ruto bypassed Parliament through an Executive order. According to the lobby, the move is a usurpation of the powers conferred on the AG and the House’s powers to make laws.

“Parliament rejected a proposal to legalise the action through legislation,” Walumbe said.

An omnibus Bill, the National Government Administration Laws (Amendment) Bill, 2023, was tabled in the National Assembly and was being considered by the Justice and Legal Affairs Committee.

However, former AG Justin Muturi said the Bill did not originate from the Cabinet. He also distanced himself from the proposed law.