https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7400

Kendagor & 4 others v Muihu & 2 others (Civil Case 239 of 2016) [2026] KEHC 7400 (KLR) (Civ) (7 May 2026) (Ruling) Neutral citation: [2026] KEHC 7400 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 239 of 2016 SN Mutuku, J May 7, 2026 Between Eilean Kendagor 1st Plaintiff Sureya Roble 2nd Plaintiff Hon. Beatrice Kones 3rd Plaintiff Mary Odhiambo 4th Plaintiff Phyllis Polong 5th Plaintiff and Rahab Mwikali Muihu 1st Defendant Elizabeth Mayieka 2nd Defendant and Maendeleo Ya Wanawake Organization Interested Party Ruling Background 1.Under determination is a Notice of Motion dated 27/01/2026 (the Application). It was filed by Sureya Roble and Hon. Beatrice Kones (the 2nd and 3rd Plaintiffs respectively) against the Rahab Mwikali Muihu, the 1st Defendant/Respondent, Elizabeth Mayieka, the 2nd Defendant/Respondent and Maendeleo Ya Wanawake Organization, the Interested Party (Interested Party). The Application seeks the following orders:i.Spent.ii.Spent.iii.That pending the hearing and determination of Civil Suit No. 239 of 2016, an order for injunction do issue restraining any recruitment of members, collection of subscriptions, nomination of candidates, or any electoral process whatsoever of Maendeleo ya Wanawake Organization.iv.That this Honourable Court be pleased to stay, suspend and/or cancel the Gazette Notice issued by the Chairperson of the National Elections Board of Maendeleo ya Wanawake Organization calling for elections.v.That costs of the Application be in the cause. 2.The Application has been brought under Sections 1A, 1B and 3A of the Civil Procedure Act (CPA); and Order 40, Rules 1, 2 and 3 of the Civil Procedure Rules (CPR). It is supported by the grounds found on the face of the Application and in the Supporting Affidavit of Mary Odhiambo (the 4th Plaintiff) in her capacity as Treasurer Interested Party and on behalf of the Plaintiffs herein in which it was deposed that the legitimacy of the officials of the Interested Party forms the crux of the present suit which is still pending determination and that notwithstanding the pending dispute on who constitute the lawful officials of the Interested Party, the Chairperson of the National Elections Board of the Interested Party recently issued a Gazette Notice calling for national elections whose process was scheduled to commence in January, 2026. 3.The 4th Plaintiff has stated that the proposed electoral process involves, inter alia, the recruitment and registration of members; the nomination of candidates for various leadership positions; and the preparation for national elections. That if permitted to proceed, the above process will not only have administrative effects but will further impact the leadership and governance of the Interested Party and that unless the prayers now sought are granted, the substratum of the suit will be compromised. Replying Affidavit 4.The Application is opposed. The 1st Defendant swore a Replying Affidavit on 13/02/2026 in opposition, in which she has deposed that she is the current Chairperson of the Interested Party; that the 4th Plaintiff is not the Treasurer of the Interested Party as averred; that the Plaintiffs herein are neither members nor officials of the Interested Party, having voluntarily vacated office in 2016; that following investigations and a recommendation by a disciplinary committee, the Plaintiffs herein were removed from their respective positions vide a resolution made by the National Executive Committee (NEC) of the Interested Party and therefore the Plaintiffs lack the locus standi in the matter. 5.Secondly, the 1st Defendant has deposed that the current officials of the Interested Party constitutes the legally recognized leadership and further, the Plaintiffs, upon instituting the present claim vide a plaint dated 9/09/2016, filed an application seeking similar orders as those now sought, which orders the court declined to grant. 6.It is the averment of the 1st Defendant that the Plaintiffs thereafter abandoned the suit, resulting in its dismissal for want of prosecution on 16/03/2022; that it was not until December, 2023 that the Plaintiffs applied to have the suit reinstated and that it is clear that the instant Motion is purely aimed at disrupting the normal operations of the Interested Party. 7.The 1st Defendant, further, stated that the Gazette Notice in question was lawfully issued in line with the constitutional mandate of the Interested Party, through a member-driven process. That, the election process is to be conducted in a transparent and all-inclusive manner for the members. That consequently, if the electoral process is paused, the electoral calendar of the Interested Party will certainly be adversely affected and its functions will be paralyzed. That it would therefore serve the interest of justice for the Interested Party to be allowed to proceed with its electoral process as scheduled. Grounds of Opposition 8.On its part, the Interested Party filed Grounds of Opposition dated 9/02/2026 to oppose the Application in which the following grounds were raised:i.That the reliefs sought under Prayers (2) (3) & (4) of the Application are Res Judicata having been considered vide the Ruling of Hon Lady Justice L Njuguna on 31st of October 2016.ii.The much-heralded right to be heard, as observed by the Court of Appeal Muchanga Investments Limited Vs Safaris Unlimited (Africa) Ltd And 2 Others Civil Appeal NO. 25 Of 2002 (2009) KLR 229 is qualified in law and the court retains the right to fetter it in regulation of proceedings and balancing the rights and obligation of the parties before it. The Finite judicial resources must be respected and optimally used by litigants appearing before Court. In such a case where the Plaintiffs and Defendants case is Closed an attempt to hear the Present Application is seeking to have the court determine an interlocutory matter midstream the substantive hearing whereas the Interested Party has not closed its case. The Balance of Convenience Rests in favour of the court determining the Substantive matter after close of the Interested Party case.iii.The circumstances and premise of the motion before the Hon Court, calls for the Application to be dismissed with costs on a full indemnity basis. 9.The Interested Party has similarly placed reliance on the Replying Affidavit sworn by its Executive Officer, Isabell Mumbua Ndolo, on 2/02/2026, wherein it is deposed that the 4th Plaintiff lacks locus standi to swear the Supporting Affidavit to the Application since she is no longer an official of the Interested Party. That moreover, the 4th Plaintiff admittedly last participated in the affairs of the Interested Party in the year 2016 and is therefore not privy to the resolutions passed in Annual General Meetings (AGM) held thereafter. 10.It is further deposed that pursuant to a ruling delivered by Njuguna, J. on 30/10/2016, the Defendants herein were permitted to run the affairs of the Interested Party in their respective official positions and in accordance with the Interested Party's constitution. 11.The deponent has stated, further, that in its recently held AGM, members of the Interested Party approved the electoral calendar and as at now, nationwide recruitment of new members is ongoing with the same scheduled to end tentatively on 1/05/2026. 12.The deponent has stated that the instant Application is intended to curb the running the affairs of the Interested Party and if allowed, will prejudice the Interested Party and that, in contrast, the Plaintiffs herein will not suffer any prejudice if the Application is dismissed, since it has been established that their last active participation in the affairs of the Interested Party was in 2016. Submissions 13.The Motion was argued orally. Mr. Noordin, counsel for the 3rd and 4th Plaintiffs, briefly submitted that the issue as to who are the legitimate officials and members of the Interested Party is yet to be determined and hence if the electoral process is permitted to proceed before a determination is made, this suit will be rendered nugatory and its substratum will be destroyed. That in the circumstances, it is imperative that the injunctive orders sought are granted and the status quo be maintained. 14.Mr. Njaramba advocate for Eilean Kendagor (the 1st Plaintiff) indicated that he would not be responding to the issues pertaining to the Application. He associated himself with the submissions of the Applicant. 15.Mrs. Mbugua, counsel for the 1st Defendant, reiterated the averments made in the replying affidavit to the effect that the Interested Party is governed by a Constitution which dictates its functions and mandate. That the parties to this suit are not the only members of the Interested Party; rather, there are over 4,000,000 members, countrywide, who have equal rights. That the Interested Party is mandated by its constitution to carry out elections in accordance with the terms set out therein and that it would therefore be prejudicial for the electoral process to be halted at the request of the Plaintiffs herein. 16.Counsel submitted that the 4th Plaintiff is neither an official nor a member of the Interested Party, having, previously, abandoned her duties together with the other Plaintiffs herein and that the pertinent issues arising in this suit have no correlation with the elections of the Interested Party. 17.Counsel reiterate that the instant Application is res judicata for the reasons stated earlier. 18.Mr. Mukele, counsel for the 2nd Defendant, associated himself with the submissions of the 1st Defendant. 19.Mr. Kirwa, counsel for the Interested Party, likewise associated himself with the submissions by Mrs. Mbugua and placed reliance on the Grounds of Opposition and Replying Affidavit sworn on behalf of his client. He submitted that suit by the 2nd Plaintiff and Phyllis Polong (the 5th Plaintiff) abated following their deaths and that substitution is yet to be done. 20.It is counsel’s argument that the 2nd Plaintiff herein had previously filed an application in 2023 seeking to stop an AGM from taking place at the time but which application was never prosecuted. That even following reinstatement of the present suit, the said Plaintiff did not seek to have the aforesaid application reinstated. 21.It is counsel’s contention that a resolution was passed on 30/01/2026 by the officials of the Interested Party, at the recent AGM. He further contended that the impugned calendar constitutes an ongoing process and hence the instant Motion has been overtaken by events. 22.In his brief rejoinder, Mr. Noordin argued that all the parties before this court are concerned with the interest of the Interested Party and that it is true that the Interested Party’s operations will be paralyzed. He however argued that undertaking elections while the matter is still pending in court would be prejudicial. That the prayers sought are intended to maintain the status quo of the Interested Party and to protect current members. Analysis and Determination 23.I have considered the Application and the grounds supporting it. I have considered the Replying Affidavits and Grounds of Opposition as well as rival submissions. 24.I observed that there are two (2) preliminary issues raised by the parties: to wit locus standi of the of the Plaintiffs, specifically the 4th Plaintiff to bring this application and the issue that the application is res judicata. It is prudent to determine the two issues first. 25.On locus standi, I have considered the rival arguments on the matter. I have also read and considered the pleadings and material on record. It is not disputed that the Plaintiffs herein instituted the present claim and have participated in the proceedings all along. It is also apparent from the record that the question of status of the Plaintiffs in respect of the Interested Party, arose in the course of the trial. I therefore deem this to constitute an issue better placed for consideration and determination at the point of judgment rather than at this stage. In any event, the record shows that the parties have closed their respective cases and the matter is now at the stage of final submissions. 26.The second preliminary issue has to do with whether the Motion is res judicata, in view of the ruling delivered by Hon. Lady Justice Njuguna, as she then was, on 31/10/2016. 27.I have read Section 7 of the Civil Procedure Act (CPA), which is the applicable provision on the issue of res judicata. It provides that:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 28.The record shows that upon instituting the present suit, the Plaintiffs filed an application dated 9/09/2016 seeking an interlocutory injunction retraining the Defendants, whether by themselves or through their agents or servants, from calling, organizing, coordinating, chairing, convening and/or holding any meeting for the Interested Party pending hearing and determination of the suit. The Plaintiffs also sought an order compelling the Defendants to step aside and handover their offices to their Deputies pending hearing and determination of the suit. 29.Upon consideration thereof, the Judge reasoned, in a ruling delivered on 31/10/2016, that to grant the injunctive orders sought would have the effect of paralyzing the operation of the Interested Party, a known national organization with widespread membership. In the circumstances and in the interest of justice, the learned Judge made orders pertaining to the carrying out of a comprehensive forensic audit of the Interested Party’s accounts for the past five (5) years. 30.To my mind, after my consideration of the circumstances and the nature of the current application, it is clear that while it may be true that both applications relate to injunctive orders, the context in which they are sought are different. In the present instance, the injunctive orders currently sought are in relation to the overall electoral process of the Interested Party, arising from the Gazette Notice earlier in 2026. I am therefore not persuaded that the current application is res judicata, as claimed. 31.Turning on the merits of the application, it is clear to me that it seeks an interlocutory injunction against the Interested Party to conduct the electoral process, which process includes recruitment of members, collection of annual subscriptions, nomination of interested candidates countrywide, compilation of the wards registers, voter registration, elections in the 1,450 wards in the 290 sub-counties, and in the 47 counties and finally the preparation of National Elections slotted to take place not later than 31/12/2028. It is a process that is scheduled to take place in two years’ time. It also seeks an order staying, suspending or cancelling the Gazette Notice, pending hearing and determination of the suit. 32.The general principles governing the grant of an interlocutory injunction clearly set out in numerous authorities. In Giella v Cassman Brown & Co Ltd [1973] EA 358 and Micah Cheserem v Immediate Media Services & 4 others [2000] eKLR, among other authorities, these principles are stated as follows:a.The applicant must establish a prima facie case with a probability of success.b.The applicant must show that he or she stands to suffer irreparable loss that cannot be adequately compensated by way of damages.c.Where the court is in doubt, then the balance of convenience should tilt in favour of the applicant. 33.The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, held the view that an applicant seeking an interlocutory injunction has to satisfy the triple requirements of establishment of the existence of a prima facie case, demonstration of irreparable injury if a temporary injunction is not granted and allay any doubts as to (b) by showing that the balance of convenience is in his favor. 34.The Court stated that the three conditions apply separately as distinct and logical hurdles to be surmounted sequentially by the applicant. That is to say, that an applicant who establishes a prima facie case must further establish irreparable injury, being injury, for which damages recoverable could not be an adequate remedy and that where the court is in doubt, then the court will consider the balance of convenience. Further, it was the view of the Court that where no prima facie case is established, the court need not investigate the question of irreparable loss or balance of convenience. 35.Regarding what constitutes a prima facie case, the Court of Appeal in Mrao Ltd v First American Bank of Kenya and 2 others [2003] eKLR defined a ‘prima facie’ case as follows:“A prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 36.The Court further opined that the standard for proving a prima facie case is higher than that associated with an arguable case and that an applicant must show an infringement of a right and the probability of success of his or her case upon trial. 37.My careful perusal of the record shows that the legitimacy, or otherwise, of the officials of the Interested Party constitutes one of the issues in contention in this suit, with both the Plaintiffs and the Defendants claiming to be the rightful officials and/or members of the Interested Party. While alive to the fact that care must be taken to avoid making pronouncements that might prejudice any part, it is my considered view that the Applicants have established a prima facie case in the instant application given that they are claiming legitimacy as similarly claimed by the Respondents. 38.On the issue of irreparable loss or damage, I have considered the case presented by the 2nd and 3rd Plaintiffs who have argued that unless the injunctive orders sought are granted, they will lose out on their participatory rights and erosion of their claim and that the electoral process will prejudice the Interested Party. In contrast, the Defendants and Interested Party have maintained that if an injunction is granted, the operations and functions of the Interested Party will be impeded, notwithstanding the fact that the electoral process was permitted to proceed by way of a resolution passed in the Interested Party’s AGM. 39.I have considered the rival positions taken above. In my view, in the absence of any contrary material, I am not persuaded that the 2nd and 3rd Plaintiffs have brought credible material to support their claim of irreparable harm or loss which cannot be compensated by an award of damages. 40.Upon my perusal of the Gazette Notice, it is clear that the same resulted from a resolution passed at the Interested Party’s AGM held on 9/12/2023 followed by a resolution passed on 16/12/2025 in line with its constitutional mandate. It is also apparent that various activities are scheduled to take place preceding the elections. I am also persuaded that, all things remain constant and given the stage where the current proceedings are at, this matter should be concluded before the electoral process of the Interested Party is concluded. 41.It is my considered view, therefore, that an injunction at this stage of the proceedings would not serve any practical purpose, especially given the nature of business that the Interested Party is engaged in. 42.Having determined so, I am not persuaded that the balance of convenience tilts in favour of the Plaintiffs in order to entitle them to the interlocutory injunction sought. Consequently, for all the foregoing reasons, I find no basis upon which to either stay, suspend or cancel the Gazette Notice at this juncture of the proceedings, with the result that the Notice of Motion dated 27/01/2026 is hereby dismissed. The costs of the Application shall abide the outcome of the suit. 43.It is so ordered. DATED, SIGNED AND DELIVERED THIS 7TH DAY OF MAY 2026.S. N. MUTUKUJUDGEIn the presence of:Mr. Ashiruma for the 1st PlaintiffMr. Oyoo for the 3rd and 4th PlaintiffsMs Anne Mbugua for the 1st DefendantMr. Mukele for the 2nd DefendantMr. Kirwa for the Interested Party