https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1414

Masase & another v Speaker, County Assembly of Kisii & 6 others (Civil Application E061 of 2025) [2026] KECA 1414 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1414 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Application E061 of 2025 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Hon. Michael Motume Masase 1st Applicant Hon. Naftali Onkoba 2nd Applicant and The Speaker, County Assembly of Kisii 1st Respondent The County Assembly Of Kisii 2nd Respondent Hon. Henry Moracha, Leader Of Majority, Azimio Coalition 3rd Respondent Hon. John Ombati, Party Whip, Azimio Coalition 4th Respondent and Everlyne Moraa Mogire 1st Interested Party Walter Mochache 2nd Interested Party Jim Kenyanya 3rd Interested Party (Being an application for temporary injunction pending the hearing and determination of intended appeal against the Ruling and Order of the Employment & Labour Relations Court at Kisumu (Gakeri, J.) dated 24th March, 2025 in ELRC Miscellaneous JR No. E007 of 2025) Ruling 1.The applicants’ notice of motion dated 27th March, 2025 is brought under rule 5(2)(b) of the Court of Appeal Rules. The applicants pray for orders as follows:1.A temporary injunction do issue restraining the respondents, their agents, servants, or any other persons acting under their instructions from implementing the impugned communications dated 12th February 2025, which have resulted in the applicants’ removal from their positions in various committees and the appointment of new officers in their stead, pending the hearing and determination of the intended appeal.2.A temporary injunction do issue restraining the respondents from making any payments, disbursements, or allowances to any persons appointed to the applicants’ positions pursuant to the impugned communications, pending the hearing and determination of the intended appeal.3.A temporary injunction do issue restraining the respondents, their agents, or any other persons, from implementing any directives or resolutions passed by the new committee members as restructured by the impugned communications, pending the hearing and determination of the intended appeal.4.Costs of this application be provided for. 2.To put this application into perspective, the 1st and 2nd applicants, who were elected members of the County Assembly on an independent ticket and the Jubilee Party ticket respectively, were removed from various committees of the Kisii County Assembly. The impugned letters communicating their removal further noted the appointment of the interested parties to the committees in their place. Consequently, the applicants filed an amended ex parte chamber summons dated 17th February, 2025, seeking leave to apply for judicial review orders, and for such leave to operate as a stay of execution of the actions outlined in the impugned letters dated 12.02.2025. The 1st and 2nd respondents opposed the application by filing a preliminary objection that the suit fell under the jurisdiction of the Political Parties Dispute Tribunal and the ELRC lacked jurisdiction to entertain the dispute. The ELRC (Dr. Gakeri, J.) upheld the respondents’ preliminary objection and struck out the applicants’ application by a Ruling delivered on 24th March, 2025. 3.The applicants were aggrieved by that decision and after lodging a notice of appeal dated 24th March, 2025, they filed the present application. The application is supported by the grounds set out on its face and in the 1st applicant’s supporting affidavit sworn on 27th March 2025. It is urged that the impugned letters have resulted in an unlawful restructuring and removal of the applicants from office with a consequential expenditure of public money. Further, the applicants state that they will suffer irreparable loss entailing an economic loss. The applicants state that their intended appeal has high chances of success based on arguable legal principles. That without an injunction, the respondents will continue to implement the impugned communications, thus allowing further illegal restructuring and expenditure of public funds. 4.The application was listed for hearing before us on 4th May, 2026.Learned counsel Mr. Obiero appeared for the applicants while Ms. Muma, holding brief for Mr. Ondimu, appeared for the 1st and 2nd respondents. There was no appearance for the 3rd and 4th respondents as well as all the interested parties despite due service of the hearing notice on them. Counsel present highlighted the written submissions filed for the applicants and, for the 1st and 2nd respondents. 5.In their submissions dated 19th September, 2025, the applicants submitted that rule 5(2)(b) of the Court of Appeal Rules vests this Court with the discretion to grant injunctive or conservatory relief where it is just. Regarding the existence of an arguable appeal, it was submitted for the applicants that the dispute relates to employment rights and removal from public office which are distinct from inter-party disputes. That the political parties’ formal denials demonstrate that this is not a political dispute in the statutory sense. Mr. Obiero highlighted that the 1st applicant is not a member of a political party so that the inter- party disputes procedures would not be applicable. Counsel further submitted that the applicable standing order 53 of the Kisii County Assembly’s Standing Orders on the right to be heard had been violated thereby rendering the restructuring in which the applicants were removed from office unlawful. He urged us to find that the respondents’ actions and the factual context provide at least one arguable ground of appeal. 6.As to whether the appeal will be rendered nugatory, it was submitted for the applicants that the ongoing occupation, payment and exercise of powers by the disputed new appointees will fundamentally reshape the factual ground. That public funds are being drawn on potentially void appointments and irreversible administrative acts are being undertaken. They argued that it would be impossible to implement any appellate decision in their favour, as financial loss may not be recoverable. That legal or administrative decisions made in the interim may result in further litigation or nullification, causing significant embarrassment and liability for the County. Mr. Obiero while admitting that the applicants had already been replaced in their previously held committee positions, he urged us to grant an injunction whose effect and scope would be to stop further implementation of their removal by stopping the committees from undertaking their business. For the nugatory threshold, the applicants cited the cases of Martha Thairora Gikundi v Elizabeth Kananu & Hellen Nthiori M’itiri [2020] KECA 101 (KLR) and Discovery Technologies Ltd v Estate of Pierinna Nyokabi Kinyanjui & others [2020] KECA 291 (KLR). 7.Further, it was submitted for the applicants that the preservation of the status quo is essential for the legitimacy of the court process and public confidence in the rule of law. That the attendant public interest and administrative justice considerations weigh heavily in favour of the relief sought. 8.The 1st and 2nd respondents stated in their submission dated 27th April 2026, that the learned Judge of the ELRC properly declined jurisdiction. They submitted that the applicants had failed to satisfy the two-limb threshold required for the grant of injunctive relief under rule 5(2)(b) as set out in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 others [2013] eKLR. On an arguable appeal, the 1st and 2nd respondents noted that the intended appeal does not raise a novel legal question and expresses disagreement with a correct application of settled law. That the applicants’ characterization of the dispute as an employment and labour relations one contradicts the facts of the matter and binding legal provisions. They urged that an appeal built on a legally untenable premise cannot be arguable within the meaning of rule 5(2)(b). 9.The 1st and 2nd respondents further submitted that the second limb of the nugatory test requires proof of irreparable harm that cannot be remedied if the appeal succeeds. They asserted that the applicants retain the option to pursue their dispute before the Political Parties Dispute Tribunal, the proper forum established by law. The 1st and 2nd respondents highlighted that the dispute was governed by section 40 of the Political Parties Act which covered parties and independent county assembly members. Further, the availability of that forum negates the claim of irreparable prejudice. They cited the case of Equity Bank Limited v West Link MBO Limited [2013] eKLR, in which the court held that the mere possibility of inconvenience or disruption does not satisfy the nugatory test. 10.It was urged for the 1st and 2nd respondents that even if this Court were to consider the balance of convenience, the same would favour the respondents. That the reconstitution of county assembly committees is an internal political act essential to the operation of legislative business. That granting the orders sought would interfere with the constitutional mandate of the Kisii County Government and disrupt ongoing committee work at the expense of public interest. They further urged that jurisdiction under rule 5(2)(b) is exercised in the interests of justice and not intended to grant substantive relief at an interlocutory stage. That the injunctive orders sought by the applicants would amount to reinstating the applicants to committee positions, thereby pre-empting the outcome of both the appeal and the appropriate dispute resolution process. The 1st and 2nd respondents maintained that the applicants had failed to satisfy both limbs of the rule 5(2)(b) test. 11.The first issue for determination is whether the applicants have established at least one arguable point in the proposed appeal. In Stanley Kang’ethe Kinyanjui v Tony Keter & 5 Others [2013] eKLR this Court described an arguable appeal as follows:“vii).An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.viii).In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.” 12.In view of that holding, we readily find that the applicants have established an arguable point. They have stated that the learned trial Judge erred in finding that the dispute fell under the jurisdiction of the Political Parties Act; that it was not an employment dispute, and, the same applied even to the 1st applicant who was not a member of a political party but was an independent member of the county assembly. The applicants have succeeded on that limb therefore. 13.The second issue is whether the applicants have established that if the injunctions as prayed for are denied, the appeal will thereby be rendered nugatory. In Stanley Kang’ethe Kinyanjui v Tony Keter & 5 Others (supra) this Court held as follows:“ix).The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling.x).Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” 14.The applicants’ case is that they will suffer economic loss and public money will be expended on what they consider to be their unlawful replacements at the committees. We are satisfied that the concerns can be reasonably remedied through appropriate compensation and related pecuniary reliefs. 15.It is the applicant’s case that the reconstituted or restructured committees will make decisions which will likely be unlawful on account of impaired membership flowing from their alleged unlawful removal. However, they have not provided the legal basis for such serious proposition as may be based on the county assembly standing orders and other relevant law to buttress the submission. As submitted by the 1st and 2nd respondents, the balance of public interest weighs heavily against granting the injunctions as prayed for so that the running of the county assembly business through the committees should continue with no disruption. We have found that the private interest of the applicants being alleged economic loss can be sufficiently remedied through compensation unlike stalling of the business of the committees and the county assembly and which pause would amount to irreversible public injury. 16.In our view therefore the applicants have succeeded on the threshold of the proposed appeal being arguable and not frivolous, but they have failed on the limb of the proposed appeal being rendered nugatory because their removal may be reversible or adequately remedied through compensation. Further, the applicants have failed on the consideration of balance of convenience as the balance of public interest weighs heavily against granting the injunctions as prayed for. We have particularly noted that it is not disputed that the removal of the applicants has already been perfected through their replacement so that nothing is left to be arrested by a temporary injunction - the removal and replacement having completely become, for the time being, fully entrenched. As urged by the 1st and 2nd respondents, we find that the otherwise rested removal and replacement of the applicants should not be disturbed at this interlocutory stage free from the benefit of the hearing the parties and determination of the dispute upon merits. 17.In the result, the applicants have failed to fully satisfy the requirements for the grant of injunction orders as prayed for under Rule 5(2)(b) of the Court of Appeal Rules, 2022. The upshot is that the application is not merited and it is hereby dismissed. Costs shall abide the outcome of the appeal. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA......................................JUDGE OF APPEALE. C. MWITA......................................JUDGE OF APPEALB. ONGAYA......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar