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Court of AppealDismissedCivil Application E655 of 2025

Attorney General & 4 others v Law Society of Kenya & 3 others

Court of Appeal
25 September 2026
2,117 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to suspend a High Court ruling that struck down an Executive Order controlling State Corporation staffing, so the judgment stays in force.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Munyao Sila, LK Kimaru and JO Okello, JJA) dismissing an application under Rule 5(2)(b) of the Court of Appeal Rules by the Attorney General and four other State actors for stay of execution of a High Court judgment delivered on 7 November 2025 (L.N Mugambi, J) in Constitutional Petition No. E273 of 2024. The High Court had declared Executive Order No. 3 of 2024 (Guidelines on Management and Terms and Conditions of Service for Board Members and Staff of State Corporations) unconstitutional for encroaching on the Public Service Commission's mandate under Article 234, declared Sections 5(3) and 27(c) of the State Corporations Act unconstitutional, and quashed the Executive Order and Guidelines by certiorari, with no orders as to costs in the public interest litigation. Applying the settled two-limb test from Stanley Kangethe Kinyanjui v Tony Ketter, the court found the intended appeal arguable - the extent of the President's powers vis-a-vis the PSC over State Corporations' human resource functions had not been decided in the respondents' cited authorities. However, the applicants failed the nugatory limb: the Executive Order had been stayed since June 2024, was never implemented, and conservatory orders in Petition No. E303 of 2023 remained in force, with State Corporations and Public Universities operating smoothly. Public interest also favoured refusal, since an unconstitutional, unoperationalized regime should not displace an existing regime found sound in law. The application was dismissed with no orders as to costs. The High Court judgment remains in force pending the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have an arguable appeal
  2. 2.Whether the appeal will be rendered nugatory if stay is not granted
  3. 3.Whether public interest favours the grant of stay

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal is arguable because the extent of the President's powers vis-a-vis the PSC over State Corporations' human resource functions remains to be interrogated.

Reasoning

The court found the respondents' authorities inapplicable because neither decision interpreted the President's powers in making executive orders directing State Corporations, and Executive Order No. 3 of 24 May 2024 was not the subject of those decisions. A single arguable point suffices under the Kinyanjui v Ketter standard.

p. 4
02

Nugatory limb

Holding

The appeal will not be rendered nugatory if stay is refused because the Executive Order was never implemented and existing conservatory orders in Petition No. E303 of 2023 remain in force.

Reasoning

The undisputed evidence of the PSC's CEO showed the impugned Executive Order had been stayed since 5 June 2024 and never operationalized; State Corporations and Public Universities continued operating under pre-existing instruments without crisis. If the appeal succeeds, the regime will simply transition to the Executive Order.

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Public interest

Holding

Public interest does not favour staying a judgment declaring an unoperationalized Executive Order unconstitutional.

Reasoning

The High Court had pronounced the Executive Order unconstitutional before it was operationalized. The court held it would not be in the public interest to allow an unconstitutional, never-implemented regime to take over an existing regime found sound in law.

p. 4

Legal principles established

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  • A Rule 5(2)(b) applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; in constitutional and governance questions, public interest is an additional consideration.
  • A single arguable point suffices for the arguability limb, and it need not be a point that must succeed.
  • Where a legal regime has been declared unconstitutional and was never operationalized, public interest does not favour allowing it to displace an existing regime found sound in law.

Court orders

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  1. 1.The application for stay of execution pending the intended appeal is dismissed
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Constitutional Petition No. E273 of 2024
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the High Court judgment pending the intended appeal

The applicants failed the nugatory and public interest limbs of the Rule 5(2)(b) test

p. 4

Costs

We make no orders as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the applicant needs to demonstrate two limbs, firstly, that he has an arguable appeal, and secondly, that if stay is not granted, the appeal will be rendered nugatory.
p. 3Rule 5(2)(b) threshold
a single arguable point is sufficient, and neither is it one that must succeed.
Arguability standard
We are not persuaded that in those circumstances, it would be in the public interest to allow a legal regime that has been declared unconstitutional and which has not been operationalized, to take over one that has been existing and found to be sound in law.
p. 4Public interest in stay applications
For not meeting the nugatory test and the public interest test, this application fails.
p. 4Disposition
The result is that this application is dismissed.
p. 4Final orders

Issues in the judgment

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minor

High Court petition number left blank in the style of cause

minor

Judgment inconsistently refers to Law Society of Kenya as 1st respondent and 5th respondent

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Attorney General & 4 others v Law Society of Kenya & 3 others", Case Analysis (2026). Civil Application E655 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1825/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.