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Court of AppealDismissedNotice of Motion dated 3rd October 2024 (in intended appeal against High Court consolidated Civil Appeals Nos. E630, E635, E008, E736, E750 and E764 of 2023)

National Disciplinary Committee of the Jubilee Party & 2 others v Kioni & 5 others (Civil Appeal (Application) E500 of 2024) [2025] KECA 440 (KLR)

Court of Appeal
7 March 2025
2,805 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause a High Court ruling that restored Jeremiah Kioni and David Murathe to Jubilee Party, meaning they resume their positions while the appeal is prepared.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules by the National Disciplinary Committee of the Jubilee Party seeking stay of a High Court judgment delivered on 30th September 2024 by Mulwa, J., together with conservatory orders maintaining the Jubilee Party leadership as per Gazette Notice No. 9131 of 12th July 2023, pending an intended appeal. The High Court had set aside the majority decision of the Political Parties Dispute Tribunal which had upheld the expulsions of Jeremiah Kioni and David Murathe and the two-year suspension of Kanini Kega resolved on 10th February 2023, and had declared certain meetings and resolutions moot. The Court of Appeal framed a single issue: whether stay should be granted. It restated the twin conjunctive principles of Rule 5(2)(b) — arguability and nugatory-ness — drawing on its precedents in Stanley Kangethe Kinyanjui v Tony Ketter, Trust Bank v Investech Bank and Julius Wahinya Kang'ethe v Muhia Muchiri Ng'ang'a. The Court found the intended appeal arguable, accepting that a single bona fide ground suffices, particularly the contention that the High Court assumed jurisdiction over matters not before it or the PPDT. However, the applicants failed the second limb: counsel identified no particular party activities that would be irreversibly disrupted, and the respondents would simply resume their lawful positions, with recourse available if they exceeded their mandate under the Party Constitution. Both limbs being conjunctive, the Court dismissed the notice of motion dated 3rd October 2024 with costs to the respondents. The High Court judgment therefore remains operative pending the full hearing of the intended appeal.

Questions the Court framed

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

  1. 1.Whether the Court should grant an order of stay of execution of the High Court judgment pending the hearing and determination of the intended appeal, measured against the twin principles of arguability and nugatory-ness under Rule 5(2)(b)

Key legal issues

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01

Whether the intended appeal is arguable under Rule 5(2)(b)

Holding

The Court found the intended appeal arguable on a preliminary assessment of the draft grounds, which included complaints that the High Court assumed jurisdiction over matters not before it or the PPDT and determined issues still live before the Party's Internal Dispute Resolution Mechanism.

Reasoning

The Court reviewed the eight draft grounds of appeal, which questioned the High Court's jurisdiction and its handling of matters pending before the Party's IDRM. Applying the settled standard that an arguable ground need not succeed but must not be frivolous, and that a single arguable ground suffices, the Court concluded that the applicant had properly demonstrated arguability. This satisfied the first limb only.

p. 5
02

Whether the intended appeal would be rendered nugatory if stay is not granted

Holding

The Court held the nugatory limb was not satisfied: the 1st to 3rd respondents would merely resume their lawful positions in the Party, and if they acted outside the Party's Constitution there is recourse, so nothing irreversible was demonstrated.

Reasoning

The applicant asserted that party activities countrywide would be disrupted, but counsel did not identify any particular activities that would be disrupted. The Court noted that the respondents resuming their lawful positions is reversible in effect, and that any conduct beyond what the Party's Constitution permits them to do affords recourse. Having failed the second limb, and both limbs being conjunctive, the application necessarily failed.

p. 6

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs conjunctively; both must be met for a stay to issue.
  • An arguable appeal need not be one that must succeed; a single bona fide, non-frivolous ground suffices.
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.

Court orders

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  1. 1.Notice of motion dated 3rd October 2024 dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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

majority
majority
majority
On appeal from
High Court
Consolidated Civil Appeals Nos. E630 of 2023, E635 of 2023, E008 of 2023, E736 of 2023, E750 of 2023 and E764 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (original and discretionary jurisdiction to grant stay pending appeal)

Relief refused

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Stay of the High Court judgment delivered on 30th September 2024 pending the intended appeal

The applicants failed to satisfy the second limb of Rule 5(2)(b): they did not demonstrate that the appeal, if successful, would be rendered nugatory, as the 1st to 3rd respondents simply resume their lawful positions and there is recourse if they act outside the Party's Constitution

p. 6

Conservatory orders maintaining the leadership of the Jubilee Party as per Gazette Notice No. 9131 Vol. CXXV – No. 161 of 12th July 2023

The application was dismissed in its entirety as unmeritorious; the Court found no basis under the second limb of the Rule 5(2)(b) test to grant any interim relief

p. 6

Costs

Application dismissed with costs to the respondents

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.

Under Rule 5 (2) (b) of this Court's Rules, an applicant is required to satisfy us on the twin principles: first, that the appeal is arguable; and secondly, that if stay is not granted, the intended appeal, if successful, will be rendered nugatory.
p. 5Twin principles for stay under Rule 5(2)(b)
An arguable appeal is not one which must necessarily succeed, but must not be frivolous. Even a single bona fide issue is enough to meet the threshold of an arguable appeal.
p. 5Standard of arguability
In the circumstances, the applicants have failed to satisfy the second limb of rule 5(2)(b) of this Court's Rules.
p. 6Failure of the nugatory limb
Accordingly, we find that the notice of motion dated 3rd October 2024 is unmeritorious. We hereby dismiss it with costs to the respondents.
p. 6Final orders / disposition

Issues in the judgment

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minor

Party designations are inconsistently used in the judgment: the opening paragraphs describe Jeremiah Kioni, David Murathe and Kagwe Gichohi as the 1st to 3rd respondents and the National Disciplinary Committee as the 1st applicant, yet earlier text also labels the NDC, Joshua Kutuny and Kanini Kega as the '1st to 3rd applicants', and the substantive dispute describes the NDC as having expelled the respondents.

minor

The Court framed a single issue for determination (stay of execution) but the notice of motion also sought conservatory orders; the Court's disposition does not separately address the conservatory orders beyond dismissing the entire motion.

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, "National Disciplinary Committee of the Jubilee Party & 2 others v Kioni & 5 others (Civil Appeal (Application) E500 of 2024) [2025] KECA 440 (KLR)", Case Analysis (2025). Notice of Motion dated 3rd October 2024 (in intended appeal against High Court consolidated Civil Appeals Nos. E630, E635, E008, E736, E750 and E764 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/440/eng@2025-03-07

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