The High Court has issued a conservatory order suspending the implementation of Executive Order No. 2 of 2023, which sought to transfer the custody of the public seal from the Office of the Attorney General to the Head of Public Service, Felix Kosgey.
Justice Chacha Mwita issued the order on Thursday, June 12, 2025, in response to a petition filed by the Katiba Institute which challenges implementation of the Executive Order to the extent that it purports to reorganise 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.
“A conservatory order is hereby issued restraining or stopping 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
The court directed that the pleadings be served immediately to the Attorney General and other respondents, with responses to be filed and served within seven days.
The petitioner will then have seven days to file and serve a supplementary affidavit, if any, along with written submissions not exceeding 10 pages.
The respondents will have a further seven days to file and serve their written submissions, also not exceeding 10 pages each. Directions on the matter are scheduled for July 2, 2025.
The conservatory order restrains the implementation of Executive Order No. 2 of 2023 to the extent that it purports to reorganize the 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.
Katiba Institute petition challenges Executive Order No. 2 of 2023 – Organisation of Government of the Republic of Kenya issued by President William Ruto on 1 November 2023 to the extent that it transferred the public seal from the office of the Attorney-General to the Executive Office of the President under the custody of the Head of Public Service.
In its case, Katiba Institute claims that Executive Order No 2 of 2023 remains operational despite its clear violation of the Constitution and the separation of powers.
“The transfer of the seal from the Office of the Attorney-General to the Office of the President effectively centralizes the power to approve and seal important national agreements without the Attorney General’s approval,” lawyer Kevin Walumbe told the court.
“Further, it removes the need for the Attorney-General to give legal advice and approval before Executive actions are made legally binding on all State organs.”
The court heard that the Seal, which is fixed on critical documents, agreements and treaties to give them legality, a symbol of the government’s authority.
“Once affixed with the public seal, documents gain legal authority and are binding on all organs of the State. The rationale for making the Attorney General the custodian of the Public Seal was to ensure the Attorney General’s approval in key decisions relating to public matters prior in an aim to avoid improper use,” Katibat Institute argued.
Katiba said President William Ruto bypassed Parliament through the Executive order. According to the lobby, the move is an usurpation of the powers conferred on the AG and the House’s powers to make laws.
“Parliament rejected a proposal to legalise the action through legislation,” the lobby group said.
The High Court will further examine the legality and constitutionality of the executive order, with the next directions scheduled for July 2, 2025.
