[2025] KECA 106 (KLR)

Speaker of the National Assembly of Kenya & another v Njiru & 40 others (Civil Appeal (Application) E119 of 2024) [2025] KECA 106 (KLR) (24 January 2025) (Reasons)

Neutral citation: [2025] KECA 106 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal (Application) E119 of 2024

SG Kairu, LA Achode & GWN Macharia, JJA

January 24, 2025

Between

The Speaker of the National Assembly of Kenya

1st Applicant

Hon. Moses M. Wetangula

2nd Applicant

and

Kenneth Njagi Njiru

1st Respondent

Meshack Suba Churchill

2nd Respondent

Lempaa Suyinka

3rd Respondent

Teddy M. Muturi

4th Respondent

Amos Wanjala

5th Respondent

Steven Kihonge Ndung’u

6th Respondent

Sophie Dola

7th Respondent

Winnie Thuo

8th Respondent

Eng. Victor Ng’ang’a

9th Respondent

Simon Lokoma

10th Respondent

Caroline Mogaka

11th Respondent

Francis Kenya Mwangi

12th Respondent

Kenya Kwanza Coalition

13th Respondent

The National Assembly of Kenya

14th Respondent

Registrar of Political Parties

15th Respondent

Hon. Kimani Ichung’wa

16th Respondent

Hon. Owen Baya

17th Respondent

Hon. Sylvanus Osoro

18th Respondent

Hon. Naomi Jillo Wako

19th Respondent

Hon. Sabina Chege

20th Respondent

Independent Electoral & Boundaries Commission (IEBC)

21st Respondent

The Hon. Attorney General

22nd Respondent

Hon. Kanini Kega

23rd Respondent

Anne Nderitu

24th Respondent

Kenya Revenue Authority

25th Respondent

Cabinet Secretary the National Treasury and Economic Planning

26th Respondent

United Democratic Alliance

27th Respondent

Amani National Congress

28th Respondent

Ford Kenya

29th Respondent

Azimio La Umoja One Kenya Coalition

30th Respondent

Jubilee Party of Kenya

31st Respondent

Law Society of Kenya

32nd Respondent

Hon. Opiyo Wandayi

33rd Respondent

Hon. Robert Mbui

34th Respondent

Hon. Junet Mohamed

35th Respondent

Katiba Institute

36th Respondent

Maendeleo Chap Chap Party

37th Respondent

United Democratic Movement

38th Respondent

Movement for Democracy and Growth (MDG) Party

39th Respondent

Usawa Kwa Wote Party

40th Respondent

Roots Party

41st Respondent

(Being an application for stay of further proceedings pending the hearing and determination of the appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Ngaah, Chigiti (SC) & Mugambi, JJ.) dated 26th January 2024 in HC. Petition No. E202 of 2023 Petition E202 of 2023 )

Reasons

1. In their application dated 14th February 2024, the applicants, The Speaker National Assembly of Kenya and Hon. Moses M. Wetangula sought, in the main, an order for stay of further proceedings in Nairobi High Court Petition No. E202 of 2023, Keneth Njiru & Others v. Kenya Kwanza Alliance & Others, pending the hearing and determination of their appeal from a ruling of the High Court delivered in that suit on 26th January 2024.

2. Having heard counsel on the application on 19th June 2024, we, in accordance with Rule 34(7) of the Court of Appeal Rules,gave our decision at the close of the hearing declining to grant the order of stay of the proceedings before the High Court and reserved the reasons for doing so. We now do so.

3. The parties were represented by learned counsel as follows: Mr. Fred Ngatia, SC appeared with Ms. Guserwa for the applicants. Mr. Kibe Mungai appeared for the 1st to 12th respondents. Mr. Mbarak held brief for Mr. Murugara for the 13th and 27th respondents and for Ms. Nganyi for the 14th respondent. Mr. Omagwa held brief for Mr. Kibanga for the 15th and 24th respondents. Mr. Millimo appeared for the 16th to 19th respondents. Mr. Manyara appeared for 20th and 23rd respondents. Ms. Wanjiru for the 22nd and 26th respondents. Mr. Ngethe for the 29th respondent. Mr. Ochieng Oginga for the 30th, 33rd, 34th, and 35th respondents. Mr. Malidzo Nyawa for the 36th respondent. Mr. Mbatai held brief for Mr. Issa for the 38th respondent.

4. The background to the application, in brief, is that the 1st to 12th respondents filed a petition before the High Court seeking numerous reliefs, among them, declarations: that Azimio La Umoja One Kenya Coalition Party is the Minority Party in the National Assembly; that Kenya Kwanza Alliance is the Minority Party in the National Assembly; and that the 2nd applicant is not qualified to be Speaker of the National Assembly. Other prayers were for declarations that the Finance Act, 2023 and the Appropriation Act, 2023 are unconstitutional; and that the employment of Tax Assistants by the Kenya Revenue Authority is unconstitutional.

5. The applicants raised preliminary objections to the action contending that the High Court lacked jurisdiction to entertain the petition on grounds that it was sub judice; that the petition was fatally defective on ground of enjoining unrelated causes of action and unrelated parties rendering it impossible to hold a fair trial and that the occupants of the office of Speaker and Majority Leader of National Assembly are immune to suits. Having heard the parties, the High Court in its said ruling of 26th January 2024 dismissed the objections and directed that the matter proceeds to hearing.

6. Aggrieved, the applicants filed a Notice of Appeal dated 26th January 2024 on which the present application dated 14th February 2024 is hinged.

7. In support of the application, Mr. Ngatia in highlighting the applicants’ written submissions submitted that the appeal, which is already filed, is arguable as the 1st to 12th respondents’ petition contains at least eighteen causes of action without any common question; that in addition to misjoinder of causes of action there is also misjoinder of parties; that in the circumstances a fair trial is impossible; that under Article 25(c) of the Constitution, the right to fair trial cannot be limited; that unless the High Court proceedings are stayed, the damage is irreversible and the appeal will be rendered nugatory.

8. Mr. Mbarak on his part in supporting the application submitted that a ruling of the Speaker on Majority and Minority party in the National Assembly was rendered; that should the proceedings before the High Court proceed, and the ruling of the Speaker is overturned and this Court ultimately finds that the High Court lacked jurisdiction, precious time will have been wasted.

9. Mr. Milimo submitted that the petition before the High Court offends the doctrine of exhaustion; that procedures under the Political Parties Act were not exhausted and the impugned ruling is contradictory in that regard; that the threshold for the grant of the orders sought is met; and that the application should be allowed.

10. The application was also supported by Mr. Ngethe, Mr. Manyara, Mr. Omagwa and Ms. Wanjiru.

11. Mr. Kibe Mungai in opposing the application was supported by Mr. Ochieng Oginga, Mr. Ndegwa Njiru, Mr. Nyawa in urging that courts should uphold the right to fair hearing; that in this case, all the parties will be heard before the High Court; that there is a fundamental question before the High Court whether the ruling of the Speaker of the National Assembly on the Majority and Minority parties accords with the Constitution and the High Court is the correct forum to determine that question and it should be permitted to do so; that any party aggrieved by any decision the High Court might render in that regard would then be at liberty to challenge it. It was submitted that the intended appeal cannot, in those circumstances, be rendered nugatory.

12. Having considered the application, the affidavits in support and in opposition, and the rival written and oral submissions we concluded, having regard to the principles in Stanley Kangethe Kinyanjui v Toney Ketter and 5 others [2013]eKLR, that the applicants’ appeal is indeed arguable. Mindful that an arguable appeal is not one that must necessarily succeed but one worthy of consideration by the Court, there is for instance the issue whether the High Court erred in declining to strike out the petition on grounds of misjoinder of parties and causes of action with respect to which issue we were referred to English decisions of the House of Lords and Court of Appeal in Smurthwaite and Others v. Hannay and Others (1894) AC 494 and Stroud v. Lawson and Others (1898)2 QB respectively as well as a decision of the Supreme Court of the Democratic Socialist Republic of Sri Lanka.

13. On the nugatory aspect, this Court, in its decision in Meta Platforms, Inc. & Another v. Samasource Kenya EPZ Limited t/a Sama & 185 Others; Central Organization of Trade Unions Kenya & 8 Others (Interested Parties) (Civil Application E178 of 2023) [2023] KECA 999 (KLR) observed that:“Where an interlocutory order does not finally dispose of the case, the court should be slow to stay proceedings because of an aggrieved party. This is so because such an order could be made the subject of appeal if it ultimately becomes necessary following the final judgment. It saves time and expense to proceed with the case. It is the duty of every court to eliminate situations which may unnecessarily cause delay in the administration of justice. However, if a successful appeal will put an end to the proceeding in the trial court, prudence dictates that a stay of proceedings be granted.”

14. In the present case, we considered that the decision the subject of appeal is interlocutory; that it was represented to us during the hearing of the application that parties had already filed submissions with respect to the petition before the High Court and what remained was the highlighting of those submissions; and that any party aggrieved by the decision of the High Court on the petition would have a right and opportunity to challenge it on appeal. We concluded that no exceptional circumstance had been demonstrated to warrant the stoppage of proceedings before the High Court.

15. Those then are the reasons we dismissed the applicants’ application dated 14th February 2024 with no orders as to costs.

DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JANUARY 2025. S. GATEMBU KAIRU, FCIArb.......................................JUDGE OF APPEALL. ACHODE.......................................JUDGE OF APPEALG.W. NGENYE-MACHARIA......................................JUDGE OF APPEALI certify that this is a true copy of the original,signedDEPUTY REGISTRAR.