National Disciplinary Committee of the Jubilee Party & 2 others v Kioni & 5 others (Civil Appeal (Application) E500 of 2024) [2025] KECA 440 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the intended appeal is arguable under Rule 5(2)(b)
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.
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.
Whether the intended appeal would be rendered nugatory if stay is not granted
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.
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.
Legal principles established
#- 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
#- 1.Notice of motion dated 3rd October 2024 dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
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
Costs
Application dismissed with costs to the respondents
Quotable passages
#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.
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.
In the circumstances, the applicants have failed to satisfy the second limb of rule 5(2)(b) of this Court's Rules.
Accordingly, we find that the notice of motion dated 3rd October 2024 is unmeritorious. We hereby dismiss it with costs to the respondents.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.