President William Ruto/FILEThe High Court in Nairobi has dismissed a petition challenging the alleged inclusion of four senior advisors and political figures in Cabinet meetings, finding that the petitioner failed to prove their permanent participation and instead relied on inadmissible hearsay.
Justice Lawrence Mugambi delivered the judgment on August 13, noting that the petitioner had not presented the written Cabinet decision required under Article 153(1) of the Constitution to substantiate the claim.
Petitioner Charles Mugane alleged that on June 27, 2023, the Cabinet approved a decision allowing the then UDA Secretary-General Cleophas Malala, Chief Economic Advisor David Ndii, National Security Advisor Monica Juma, and Women’s Rights Advisor Harriette Chiggai to attend Cabinet meetings.
He claimed the four took an oath of secrecy at the State House before attending their first meeting that day, arguing their inclusion was unconstitutional under Article 152 since they were not Cabinet Secretaries and held other political or advisory roles.
“The Petitioner herein contends that the continued attendance of cabinet meetings by the four respondents is unconstitutional, unlawful, illegal, null, and void ab initio as they were done in total disregard of substantive and procedural, constitutional requirements applicable,” the petition stated.
He sought declarations that their inclusion was null and void, alongside orders of mandamus and prohibition to exclude them from future meetings.
The respondents opposed the petition.
Malala denied ever attending Cabinet meetings, describing the allegations as “imaginary” and based entirely on newspaper articles, which he argued were inadmissible hearsay under Section 86(1) of the Evidence Act.
“The Petition is imaginary, unfounded on unsubstantiated allegations with evidence heavily and/or solely gleaned on newspaper cuttings, which is hearsay evidence pursuant to Section 86(1) of the Evidence Act, thus inadmissible and does not disclose any reasonable cause of action,” Malala observed in response.
He also noted that no official written Cabinet decision had been produced as required by law.
Ndii, Juma, and Chiggai defended their positions as advisory roles created under Executive Order No. 2 of 2023, insisting that the President was constitutionally empowered under Article 132(3) to invite any person to Cabinet meetings in relation to specific agenda items.
They maintained that their attendance, if any, would be in an advisory capacity and did not make them Cabinet members, citing international practice in countries such as the United States and Canada, where advisors may attend high-level executive meetings without being formal members.
In his ruling, Justice Mugambi stressed that the burden of proof lay on the petitioner to produce credible evidence.
The judge noted that without the written Cabinet decision envisaged under Article 153(1), the court could not confirm the alleged approval to include the four in Cabinet meetings.
The court also addressed the constitutional question, distinguishing between permanent inclusion of non-Cabinet members — which would be unconstitutional under Article 152(1) — and occasional invitations to provide expertise on specific matters, which the President and Cabinet were entitled to make.
Justice Mugambi stated that nothing in the Constitution barred the Executive from seeking expert advice in policy discussions, provided it did not amount to expanding Cabinet membership.
“Neither the Constitution nor any law that I am aware of expressly bars the Cabinet or the President from seeking counsel for purposes of having the Cabinet benefit from experts before making policy decisions on a matter before it,” the judge noted.
“I do not, therefore, think that it is the business of this Court to interpret that legal gap in a manner that constrains the discretion of the Cabinet or even the President on an internal operational matter within the Executive Branch.”
Finding no credible proof of permanent inclusion, the court
dismissed the consolidated petitions and made no order as to costs.
