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Court of AppealDismissedCivil Appeal (Application) E119 of 2024

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

Court of Appeal
24 January 2025
1,697 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to pause a High Court case about the Majority/Minority ruling, meaning courts will rarely halt proceedings over interim rulings.

What this practically means

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Executive summary

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This is the Court of Appeal's reserved reasons for declining, on 24 January 2025, to stay further proceedings in Nairobi High Court Petition No. E202 of 2023 pending the applicants' appeal from the High Court's ruling of 26 January 2024 (Ngaah, Chigiti (SC) & Mugambi, JJ.). In the petition, the 1st to 12th respondents sought, among other reliefs, declarations on the Majority and Minority parties in the National Assembly, that the 2nd applicant is not qualified to be Speaker, and that the Finance Act, 2023 and Appropriation Act, 2023 are unconstitutional. The High Court dismissed the applicants' preliminary objections asserting lack of jurisdiction (sub judice, misjoinder of causes of action and parties, and immunity of the Speaker and Majority Leader) and directed the petition to proceed to hearing. The applicants then applied to the Court of Appeal for a stay of the High Court proceedings. Applying Stanley Kangethe Kinyanjui v Toney Ketter, the court found the appeal arguable - notably on the misjoinder issue - but held that arguability alone does not suffice. Relying on Meta Platforms, Inc. v Samasource Kenya EPZ Limited, it held that where an interlocutory order does not finally dispose of the case, a court should be slow to stay proceedings, since the order can be challenged after final judgment and proceeding saves time and expense. As submissions had already been filed in the petition and any aggrieved party could appeal the High Court's eventual decision, no exceptional circumstance justified halting the hearing. The application was dismissed with no orders as to costs. These reasons bind subordinate courts on the principles governing stays of proceedings pending appeals from interlocutory decisions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended/filed appeal from the dismissal of the applicants' preliminary objections is arguable
  2. 2.Whether the appeal would be rendered nugatory if the order of stay of proceedings is not granted
  3. 3.Whether exceptional circumstances existed warranting a stay of the proceedings before the High Court

Key legal issues

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01

Whether the appeal is arguable

Holding

The appeal is arguable - for instance on whether the High Court erred in declining to strike out the petition for misjoinder of parties and causes of action - but an arguable appeal is not one that must necessarily succeed.

Reasoning

Applying the principles in Stanley Kangethe Kinyanjui v Toney Ketter & 5 others, the court found that the petition raised issues worthy of consideration, including the misjoinder question on which the applicants relied on English and Sri Lankan authorities. However, arguability alone was insufficient; the nugatory-prong of the stay test also had to be satisfied.

p. 4
02

Whether the appeal would be rendered nugatory absent a stay, given that the decision under appeal was interlocutory

Holding

No nugatory effect was established: the decision under appeal was interlocutory, the petition was at an advanced stage (submissions filed, only highlighting remaining), and any aggrieved party could appeal the High Court's eventual decision.

Reasoning

The court relied on its decision in Meta Platforms, Inc. v Samasource Kenya EPZ Limited, which holds that courts should be slow to stay proceedings when the order appealed from is interlocutory, since it can be made the subject of appeal after final judgment and proceeding with the case saves time and expense. A stay is appropriate only where a successful appeal would put an end to the trial court proceedings, which was not the case here.

p. 4
03

Whether exceptional circumstances warranted stopping the High Court proceedings

Holding

No exceptional circumstance was demonstrated to warrant stoppage of the proceedings before the High Court.

Reasoning

Even accepting the applicants' arguments about misjoinder, sub judice, exhaustion of procedures under the Political Parties Act, and the right to a fair trial, the court found that all parties would be heard before the High Court and that the fundamental constitutional question on the Speaker's ruling on Majority and Minority parties was properly before the High Court, with appeal rights preserved thereafter.

p. 4

Legal principles established

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  • Where an interlocutory order does not finally dispose of the case, the court should be slow to stay proceedings because an aggrieved party can challenge such an order following the final judgment; a stay should only be granted where a successful appeal will put an end to the proceedings in the trial court.
  • Exceptional circumstances must be demonstrated to warrant the stoppage of proceedings in a trial court pending an appeal from an interlocutory decision.

Court orders

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  1. 1.Dismissal of the applicants' application dated 14th February 2024 seeking stay of proceedings before the High Court
  2. 2.No orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
High Court of Kenya at Nairobi
HC. Petition No. E202 of 2023
Jurisdiction invoked
Rule 34(7) of the Court of Appeal Rules (application for stay of proceedings pending appeal)

Relief refused

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Stay of further proceedings in Nairobi High Court Petition No. E202 of 2023 pending the hearing and determination of the appeal

The decision under appeal was interlocutory; submissions were already filed with only highlighting remaining; any aggrieved party could challenge the High Court's final decision on appeal; no exceptional circumstance was shown

p. 4

Costs

The applicants' application dated 14th February 2024 was dismissed with no orders as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where an interlocutory order does not finally dispose of the case, the court should be slow to stay proceedings because of an aggrieved party.
p. 4Stay of proceedings - interlocutory orders
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.
p. 4Circumstances warranting a stay of proceedings
Mindful that an arguable appeal is not one that must necessarily succeed but one worthy of consideration by the Court,
p. 4Meaning of an arguable appeal
Those then are the reasons we dismissed the applicants’ application dated 14th February 2024 with no orders as to costs.
p. 4Final orders - disposition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Speaker of the National Assembly of Kenya & another v Njiru & 40 others (Civil Appeal (Application) E119 of 2024)  (24 January 2025) (Reasons) [2025] KECA 106 (KLR)", Case Analysis (2025). Civil Appeal (Application) E119 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/106/eng@2025-01-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.