[This is a guest post by Miriam Maina.]
…if we are victorious in one more battle against the Romans, we shall be utterly ruined…
Losses on Italian shores.
History is awash with chronicles of battles won, but wars lost. Hollow victories. Expensive victories. Ruinous victories. Pyrrhic victories. The original pyrrhic victory was painfully endured by King Pyrrhus of Epirus in B.C. 281, who, after winning two wars against the Romans in defense of his fellow Greeks, lost most if not all his troops, and most curiously, 20 elephants. Among those lost were close confidants and seasoned generals. Some accounts report that upon receiving this news, King Pyrrhus dispiritedly remarked, “Ne ego si iterum eodem modo vicero, sine ullo milite Epirum revertar.” (If I achieve such a victory again, I shall return to Epirus without a single soldier.) And thus the term was born, warning us that some victories are tantamount to defeats.
Gains at the High Court in Milimani
HCCHRPET. 317 OF 2025 Katiba Institute vs AG & 2 Others challenged the constitutionality of the process of setting up presidential advisors’ offices and enjoined all these office holders as Interested Parties. The court was satisfied that they had all been comprehensively served with the relevant documentation to enable them to respond and participate in the petition, noting that they had been adversely mentioned. They willfully declined this invitation. Remarkably, it is only after the delivery of the judgment, that some of them have come forth with a barrage of reactions ranging from the perspective that there is pressing necessity for advisors in the President’s office, to terming the judgment, and with visceral inaccuracy, a pyrrhic victory. In other words, some of the Interested Parties’ position has been that though constitutionalism prevailed, this success is on aggregate nothing compared to losing the expertise that they provided the Executive, and by extension the nation: hence a meaningless achievement.
In finding merit in the petition, the High Court declared the offices of presidential advisors unconstitutional for a plethora of reasons, including want of transparency and public participation in violation of Article 10 & 201 (a), material non-compliance with values of public service as set out in the Public Service Commission Regulations, the Public Service Commission Act, and the Constitution of Kenya, 2010. This post briefly analyses the judgment above (which I shall call here Advisors 1) and the subsequent ruling by the same court on the issue of stay (Advisors 2), with the aim of rejecting any possibility that this body of juridical work, and its practical effects, could be a pyrrhic victory.
The judgment’s constitutional anchor
In his analysis of Advisors 1, Gautam Bhatia concludes that the overarching themes emanating from the landmark judgment are public participation and opening power up for public scrutiny. This finding is nothing if not apt. In defense of the patent violations of the Constitution and legislation, the State argued that the appointment of presidential advisors was an “internal operational decision” that did not require public participation. In rejecting this justification, Justice Mwamuye finds in paragraph 72 that:
…the creation of multiple senior and publicly funded offices within the highest office of the land is of a wholly different character. It affects the structure of the executive, has substantial recurring fiscal costs, and potentially alters the dynamics of policy formulation. It is a decision of high governance and public interest that is very much fitting for public participation.
In further breathing life to Articles 10 & 232, and diametrically diverging from the misapprehension that the president can be advised in informal kitchen cabinets over breakfast, (what Mwamuye J calls a “jobs for the boys culture”), the court posits in paragraph 75:
“…To be clear, the President of the Republic of Kenya is this nation’s highest-ranking state and public officer and the holder of this nation’s highest government office. The President of the Republic is not just the Head of the National Executive but indeed the Head of State and Government, the Commander in Chief of the Defence Forces, and a Symbol of National Unity. The proposed creation of an advisor to the President is thus a matter of significant national concern and one which undoubtedly should be subjected to public participation.”
Guarding the principles of public service
That the head of the president is heavy from carrying the prominent crown of constitutional duty is beyond argument. Over and above all else, the President is a symbol of national unity. Does it not surely matter to the public, then, who the holder of such an exalted office takes their counsel from? The court was satisfied that the Public Service Commission had on this occasion operated merely as the Executive’s rubber stamp, as opposed to the legal custodian of merit and fair competition within the Public Service. In fact, in the court’s words in paragraph 80, the process followed was the very antithesis of transparency because,
…the positions were never advertised. There was no open call for applications, no shortlisting based on objective criteria, no interviews conducted by an independent panel. Specific individuals were simply named by the President’s Executive Office and thereafter appointed as fair accompli. This is precisely the handpicking or jobs for the boys’ culture that Article 232 was designed to eliminate…
From the foregoing, and returning to the most important question that this post seeks to answer, does the abolition then of high taxpayer expense offices established through processes that were plainly contradictory to the principles of financial responsibility, involvement of the people to policy making or accountability as envisaged by our transformative charter really amount to a hollow victory? This article and the judgment above strongly refute that position. It is, in fact, why one of the most consequential orders made by the court in paragraph 106 (d) is that:
A permanent injunction be and is hereby issued, restraining the 1st and 2nd Respondents, their agents, or anyone acting under their authority from … effecting any payments to the Interested Parties pursuant to their appointments to the said unconstitutional offices…
The practical impact of this order is in fine alignment with the Court of Appeal’s pronouncement in Fred Matiang’i, Cabinet Secretary, Ministry of Interior and Co‐ordination of National Government v. Miguna Miguna & 4 others [2018] eKLR, that when courts make orders or declarations, they do not do so as pleas, suggestions or mere good ideas. Judicial authority is compulsive and exacting. As a result, a finding of illegality like in Advisors 1 must be binding and consequential. The most rational immediate action was to stem the bloodletting of taxpayer monies through vessels and arteries rooted in opaqueness and irregular processes. This adherence that is true to the calling in Article 3 in defense of the sovereign and the supreme law cannot in any world leave the victors – the People – in a weaker position as argued by David Ndii, the 1st Interested Party.
Attempting to maintain status quo ante.
In a peculiar turning of the tables, the Interested parties – all of whom had initially declined to participate in the Petition – filed an application seeking to stay the effects of the judgment as they concurrently pursued the avenue of an appeal. That they would now come asking the court for discretionary reliefs to shield them from its edicts is most telling.
In a ruling delivered on 3rd February 2026, the court dismissed the entire application, terming it res judicata. The arguments advanced in the formal application were a mirror image of those orally canvassed in court minutes after Advisors 1 was delivered. To be sure, Mwamuye J. proceeds to inform the Applicants in paragraph 13 that, “…it does not matter that the first Application was made orally and the second one was made in writing. The substance of the two being the same means that the doctrine of res judicata bars that second attempt.”
This piece concertedly agrees with Advisors 2. Legal order abhors cyclic litigation, also called litigation in instalments. Indeed, Vigram VC in Henderson v Henderson was clear as a whistle that, “…where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not … permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident omitted part of their case.”
Prospectively speaking, who is to say that all the arguments advanced in favor of the application for stay, namely; support for the executive office, prejudice, transition and handover, would not have been successfully litigated in the main proceedings had the Interested parties been bothered to file responses? That answer is, unfortunately, now a secret kept by their silence.
Conclusion
In the upshot, not nearly enough has been said about the High Court’s vigilance in this matter. Not enough has been said about the responsible manner in which it has carried and conveyed the unmistakable voice of the Constitution of Kenya 2010 as it speaks, telling us unwaveringly that, “…no person may claim or exercise (whether in illegal offices or kitchen cabinets over breakfast) state authority except as authorized under this Constitution.”Thus, in departing from sentiments made in Italy by a king reeling from a victory that threatened to destroy him, this article finds that fidelity to the Constitution is worth every confidant, seasoned general and advisor lost in the battle for a post-2010 constitutional democracy. If anything, Advisors 1 & 2 are a far cry from losses.