The High Court has dismissed a petition seeking to block President William Ruto from inviting external advisors to Cabinet meetings, ruling that occasional participation by non-Cabinet members is allowed under the Constitution.

The case was filed by lawyer Charles Mugane, who argued that the presence of political and policy advisors in Cabinet undermined good governance.

He was challenging a June 27, 2023, decision that allowed former United Democratic Alliance Secretary General Cleophas Malala, economist David Ndii, former Cabinet Secretary Monica Juma and gender advisor Harriette Chiggai to attend the sessions.

Justice Lawrence Mugambi found that while Article 152 of the Constitution defines the Cabinet’s composition, it does not expressly prohibit the President from inviting experts or advisors to provide technical or policy input on specific matters.

“A permanent inclusion allowing regular attendance of non-Cabinet members in meetings of Cabinet, however, would run afoul of Article 152(1) of the Constitution as it is tantamount to an unconstitutional expansion of the Cabinet,” he ruled.

“But occasional invitation of experts or advisors on a need basis falls within the President’s discretion.”

The judge said the petitioner failed to prove that the four advisors were permanent attendees.

He noted that Mugane’s case relied heavily on newspaper reports, which he described as “secondary evidence” and insufficient to back the claims.

Justice Mugambi contrasted the matter with a 2020 case in which the then Nairobi Metropolitan Services boss General Mohammed Badi was confirmed by State House as a regular participant in former President Uhuru Kenyatta’s Cabinet and had taken an oath of secrecy.

In the current case, he said, there was no formal communication or Cabinet decision proving regular attendance.

“Since Ndii, Malala, Juma and Chiggai have denied sitting in the Cabinet, the burden was on the petitioner to prove his allegations,” the judge said.

He also noted that the question of non-Cabinet members attending Cabinet is not new, recalling that current Lands Cabinet Secretary Alice Wahome had once challenged Badi’s participation in Kenyatta’s Cabinet, but the difference then was the availability of official confirmation.

In rejecting the petition, Justice Mugambi said courts should not “interpret a legal gap in a manner that constrains the discretion of the Cabinet or the President on internal operational matters within the Executive Branch,” as long as such discretion is exercised within constitutional limits.

The court made no orders as to costs.