All Eyes on Court of Appeal as Nelson Havi Delivers This Message on Rulling Involving Ruto’s Advisor

Senior Counsel Nelson Havi has publicly criticized a recent Court of Appeal decision, accusing Justices Weldon Korir, Hedwig Ong'udi, and Samson Okong'o of making a grave error by staying a High Court ruling that declared the offices of Adviser to the President unconstitutional.

In a detailed post on X, Havi argued that the three-judge bench wrongly granted a stay of execution on the High Court's January 2026 judgment, which had quashed the creation and appointments of 21 presidential advisers, including prominent figures like David Ndii and Makau Mutua.

The High Court, presided over by Justice Bahati Mwamuye, found the process violated constitutional provisions, lacking proper recommendations from the Public Service Commission, public participation, and fiscal analysis, rendering the positions unlawful and an imprudent use of public funds.

The Court of Appeal's March 13, 2026, ruling temporarily reinstated the advisers pending a full appeal by the government, citing the appeal's arguability and public interest. Havi contended this was not mere incompetence but misconduct and misbehavior.

The Court of Appeal's March 13, 2026, ruling temporarily reinstated the advisers pending a full appeal by the government, citing the appeal's arguability and public interest. Havi contended this was not mere incompetence but misconduct and misbehavior.

He emphasized that stays cannot apply to declaratory orders or certiorari quashing unlawful actions, as this would temporarily legitimize what was already nullified. 

He cited precedents like Republic v The Municipal Council of Mombasa, Ex Parte Adopt A Light Limited (2008) eKLR, stating the appellate court lacks jurisdiction to reverse such orders interimly.

Havi noted a pattern where such stays favor government entities but not private litigants, suggesting subordination to the executive rather than adherence to legal principles. 

He urged prioritizing the full appeal instead and warned that pandering to the executive could warrant removal from office, though he doubted the Judicial Service Commission would act due to claims of decisional independence.

The ruling has sparked debate over judicial impartiality, executive influence, and constitutional compliance in public appointments, with critics questioning the judiciary's role in checking state power.