Milimani High Court Judge Chacha Mwita has ordered Katiba Institute and the Attorney General’s (AG) office to comply with directions issued on June 12, 2025, stating that they were clear on the filing of responses and submissions.
Justice Mwita issued the orders on Wednesday, July 2, 2025, after lawyer Kevin Walumbe, representing the petitioner Katiba Institute, told the court that they had not received any responses from the respondents (AG’s office) after serving them with pleadings.
Principal State Counsel Samwel Kaumba confirmed that the office of the AG had received the pleadings from Katiba Institute.
“My Lord, indeed I confirm service of the pleadings upon the Attorney General (AG). My Lord, in response to the pleadings, I formulated a draft of replying affidavit which I have forwarded to the client,” State Counsel Kaumba told the court.
Further, Counsel Kaumba urged the court to note that the petition had been overtaken by events, stating that it originated from Executive Order Number One of 2023, which he cited as no longer in force.
However, in response, Justice Mwita urged him to file the response as directed earlier.
The State Counsel added that he would include the issue of the petition being overtaken by events in his response.
“Yes, that is what I want, because how do I record that? File a response, raise those grounds,” Justice Mwita responded.
Justice Mwita also stated that the order stopping the implementation of a Presidential Executive Order that transferred the Public Seal from the Attorney General’s office to the Head of Public Service in 2023 remains in force until the petition filed before the court is heard and determined.
On November 1, 2023, President William Ruto issued an executive order dubbed Executive Order No. 2 of 2023, which transferred the Public Seal to the office of the Chief of Staff and Head of Public Service.
Henceforth, Felix Koskei became the “Custodian of the Kenya Public Seal and other instruments of the State for national posterity,” as outlined in the executive order, as one of the functions of the Chief of Staff and Head of Public Service.
The order explained that the transfer and other reorganisations in it were meant to enhance efficiency, transparency, and accountability at all levels of government through a governance structure and leadership that ensures rapid delivery of public services to Kenyans in every part of the Republic.
“Now therefore, I, William Samoei Ruto, President of the Republic of Kenya and Commander-in-Chief of the Defense Forces, by the authority vested in me by the Constitution and Statute Laws of Kenya, hereby order and direct that the Government of Kenya shall be organized as set out in this Executive Order; that this Order assigns functions and institutions amongst ministries and State departments as hereunder; and that this Order supersedes Executive Order No. 1 of 2023 issued on the sixth day of January, 2023,” the executive order summary read.
In their petition filed on June 4, 2025, Katiba Institute is seeking a declaration that the Attorney General is the legal and physical custodian of the Public Seal.
Notably, the petitioner urges the court to declare the executive order purporting to 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 as null and void.
Katiba Institute further argues that the transfer of the Public Seal is contrary to Articles 47, 94, and 156 of the Constitution and Section 28 of the Office of the Attorney General Act.
According to the petitioner, the order transferring the Public Seal is a violation of the Constitution, adding that it was an administrative action taken without the sanction of the law, and that the President acted in excess of his powers.
“The President transferred the Public Seal from the Office of the Attorney General to the Executive Office of the President under the specific custody of the Chief of Staff and Head of Public Service,” part of the petition read.
On Thursday, June 12, 2025, Justice Chacha Mwita said that upon considering the pleadings and issues raised in Katiba Institute’s petition, he was convinced that it raises fundamental constitutional and legal matters of great public importance.
“A conservatory order is hereby issued restraining 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,” Justice Mwita ordered.
He further directed that the pleadings be served immediately and responses be filed and served on both the application and petition within seven days from the date of service.
He ordered Katiba Institute to file and serve a supplementary affidavit, if any, together with written submissions to both the application and petition within seven days after service.
The court also directed that Attorney General Dorcas Oduor and Head of Public Service Felix Koskei each file and serve written submissions to the application and petition within seven days.
The matter will be mentioned on October 27, 2025, to confirm compliance.
