In its response, Katiba Institute argues that the advisers have no legal basis to seek a stay or review of the judgment, maintaining that the High Court’s decision was final and can only be challenged through an appeal to a higher court.

The institute contends that once a court has rendered a final judgment, it lacks jurisdiction to reopen or reconsider its own decision. 

“A party cannot, through the guise of an application which is in substance and effect an appeal, invite this Court to reopen, reconsider, or sit in judgment over its own final decision,” reads the response filed in court. 

Through its lawyer, Malidzo Nyawa, Katiba further argues that the application for stay is unmerited, noting that the advisers have failed to demonstrate any prejudice they would suffer if the orders are not suspended.

Katiba dismisses claims that the absence of the advisers would cripple government operations, pointing out that the President and the Executive have operated within the constitutional framework since 2010 without the contested offices. 

“The President and the Executive have been able to deliver public services within the framework established by the Constitution before the creation of the contested offices. What are these cataclysmic or debilitating consequences that will suddenly befall the people of Kenya as they await the determination of an appeal, if any is filed?” the Institute argues.

The court has also been told that if there were genuine concerns about disruption to government operations, it is the Attorney General not the advisers, who ought to have moved the court. 

“If the application before the court is not about the Executive, whose interest is the application meant to serve? It is clear that the application is brought by the Interested Parties to serve their own interests,” court papers state.

The High Court had earlier ruled that the creation and staffing of the advisers’ offices was unconstitutional, rendering their appointments null and void. By Dzuya Walter, Citizen Digital