Court Stops Transfer of Public Seal from Attorney General’s Office to Head of Public Service

High Court issues conservatory orders against 2023 executive order, citing constitutional violations and separation of powers concerns

The High Court in Nairobi has delivered a significant blow to President William Ruto’s administration by suspending the implementation of Executive Order No. 2 of 2023, which sought to transfer custody of Kenya’s Public Seal from the Attorney General’s office to the Head of Public Service.

Justice Bahati Mwamuye issued the conservatory orders on Friday following a petition by the Katiba Institute, a constitutional rights lobby group, which challenged the legality of the transfer and accused the President of overstepping his constitutional mandate.

The contested executive order, issued on November 1, 2023, attempted to move the Public Seal from Attorney General Dorcas Oduor’s custody to Head of Public Service Felix Koskei in the Executive Office of the President.

The Katiba Institute argued that this transfer violated the Constitution and represented an administrative action taken without legal sanction.

“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 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 Mwamuye ruled.

The case has been scheduled for mention on July 2, 2025, for further directions.

The controversy stems from the President’s attempt to circumvent parliamentary oversight.

Last year, Parliament declined to approve the deletion of Section 28 of the Office of the Attorney General Act through the National Government Administration Laws (Amendment) Bill No. 73 of 2023.

The National Assembly rejected the Executive’s attempt to amend the law and recognize the Head of Public Service as the sole custodian of the Public Seal.

Section 28 of the Office of the Attorney-General Act explicitly states that the Attorney General shall have custody of the Public Seal.

The National Assembly found no satisfactory justification for transferring this critical state instrument from the Attorney General’s office.

Undeterred by Parliament’s rejection, President Ruto issued the executive order, prompting accusations of constitutional overreach and attempts to centralize executive power.

The Katiba Institute’s petition highlighted serious constitutional concerns about the transfer.

The lobby group argued that making the Attorney General the custodian of the Public Seal serves as a crucial check and balance, ensuring prior legal approval for key government decisions and preventing improper use of state instruments.

“There is real and imminent danger of usurpation of the powers and functions of the legislature. Furthermore, there is real and imminent danger of misusing the Public Seal without the advice and approval of the Attorney General,” the petition stated.

The institute’s lawyer, Kevin Walumbe, emphasized the urgency of the matter: “It is in the public interest that the matter be certified urgent and heard on a priority basis to stop any prejudice that may be caused by the illegal transfer of the Public Seal.”

Throughout the controversy, Attorney General Dorcas Oduor has consistently maintained that the Public Seal remains under her custody.

In recent statements, she has reaffirmed her position, pushing back against media reports and government statements suggesting the seal had been moved to the Head of Public Service.

The Public Seal serves as a key national symbol used to stamp and authenticate official government documents, making its custody a matter of significant constitutional and administrative importance.

This legal battle represents part of a broader struggle over constitutional checks and balances in Kenya.

The dispute highlights tensions between different branches of government and raises questions about the limits of executive power under the 2010 Constitution.

Legal experts have warned that transferring the seal from the Attorney General’s office to the Executive Office would effectively centralize power and undermine the separation of powers doctrine.

The Katiba Institute, known for its constitutional advocacy work, has positioned this case as fundamental to preserving Kenya’s democratic institutions and preventing what it characterizes as an executive power grab.