The High Court has issued conservatory orders halting the implementation of Executive Order No. 2 of 2023, which sought to transfer custody of the Public Seal from the Attorney General to the Head of Public Service (HOPS) in the Executive Office of the President.
Justice Chacha Mwita delivered the ruling on Thursday, June 12, declaring that the transfer raises “fundamental constitutional and legal issues” that must be fully litigated before any action is taken.
“A conservatory order is hereby issued restraining or stopping implementation of Executive Order No. 2 of 2023 to the extent that it purports to reorganise government and transfer the Public Seal… until further orders of the Court,” ruled Justice Mwita.
The decision came just a day after Katiba Institute, a constitutional watchdog, filed a petition arguing that the executive order was an unconstitutional power grab that bypassed Parliament and undermined the doctrine of separation of powers.
Public Seal at the Centre of Dispute
The Public Seal is a powerful national symbol, typically affixed to official government documents to verify their authenticity and sovereign authority. Traditionally housed in the Office of the Attorney General, the Seal features Kenya’s coat of arms, flanked by two lions with spears and a traditional shield.
Katiba Institute’s legal team contended that Executive Order No. 2 violated the Office of the Attorney-General Act, 2012, by attempting to reassign custody of the Seal without proper parliamentary oversight. They further argued that the Administration Laws (Amendment) Bill, 2023, which facilitates the transition, is constitutionally flawed.
“The President cannot unilaterally transfer constitutional symbols or powers vested in an independent office. This is a clear breach of constitutional order,” Katiba Institute stated in its court filings.
Legal Proceedings Underway
In his directive, Justice Mwita acknowledged the gravity of the issue and ordered both parties to proceed with written submissions.
- Katiba Institute has been given seven days to file supplementary affidavits and written submissions, capped at ten pages.
- The respondents will then have seven days to respond.
Until the court hears and rules on the full petition, the Public Seal will remain under the custody of the Attorney General.
This latest development intensifies scrutiny of Executive Order No. 2 of 2023, which outlines the organisational structure of the Executive, including roles and responsibilities of Ministries, State Departments, and Agencies.
Critics say the order continues a pattern of executive overreach under President William Ruto’s administration, which has faced growing opposition over alleged attempts to consolidate power.
