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Court of AppealDismissedCivil Appeal (Application) No. 80 of 2014· [2014] KECA 313 (KLR)

Political Parties Forum Coalition & 3 others v Registrar of Political Parties & 2 others [2014] KECA 313 (KLR)

Court of Appeal of Kenya
17 October 2014
2,428 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to freeze the Political Parties Fund during an appeal because money wrongly spent can be recovered later, so the appeal would not be pointless.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Waki, G.B.M. Kariuki and Ouko, JJ.A) on an application under Rule 5(2)(b) of the Court of Appeal Rules for an injunction pending appeal. The applicants, having lost before Majanja, J. in the High Court a constitutional petition challenging the 5% vote threshold in section 25(2)(a) of the Political Parties Act for eligibility to the Political Parties Fund, sought to restrain the Registrar of Political Parties from disbursing the Fund until their appeal was heard. Only three parties (TNA, ODM and URP) qualified for funding under the provision. Counsel agreed the appeal raised arguable points, leaving only the nugatory aspect for determination. The Court reaffirmed the settled principles: under Rule 5(2)(b) the Court exercises an independent discretionary jurisdiction; both arguability and the nugatory aspect must be satisfied; a successful litigant should not be deprived of the fruits of judgment. Applying the presumption of constitutionality, the Court held that granting the injunction would be unconscionable and occasion a miscarriage of justice to the qualified parties. Even if section 25(2)(a) were found unconstitutional, the Government could make provision for the applicants in the next budget cycle, or the three qualifying parties could be ordered to refund funds. The application was accordingly dismissed, with costs in the appeal, and the appeal was directed to be listed for hearing on a priority basis.

Key legal issues

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Whether an injunction should issue under Rule 5(2)(b) restraining disbursement of the Political Parties Fund pending appeal

Holding

The application fails on the nugatory limb: the applicants did not show that the appeal, if successful, would be rendered nugatory, since the Government could avail the funds or the qualifying parties could refund them.

Reasoning

The Court reiterated the well-established Rule 5(2)(b) principles: arguability and nugatory aspect must both be satisfied. It accepted that arguable points exist but found that any success on appeal could be remedied by future budgetary provision or refund of funds, so an injunction would unconscionably deprive qualified parties of the fruits of the High Court judgment.

p. 5

Legal principles established

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  • Under Rule 5(2)(b) the Court exercises an independent discretionary jurisdiction, not an appeal from the trial court; both arguability and the nugatory aspect must be satisfied, and no definitive determination of contested facts is permitted.
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be prevented is reversible, or, if not reversible, whether damages will reasonably compensate the aggrieved party.

Court orders

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  1. 1.The application under Rule 5(2)(b) for an injunction pending appeal is dismissed
  2. 2.Costs of the application to be in the appeal
  3. 3.The appeal to be listed for hearing on a priority basis

Authorities

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Legislation

  • Political Parties ActSection 25(2)(a)
  • Political Parties ActSection 25(1), (2)(b), (3); First Schedule (Code of Conduct)
  • Constitution of KenyaArticle 91
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

  • Damji Pragji Mandavia v Sara Lee Household Body Care Ltd
    Civil Application No. 345 of 2004
  • Nairobi Metropolitan PSV Sacco Union Ltd and others v County Government of Nairobi & 3 Others
    Civil Application No. Nai. 16 of 2014
  • Stanley Kangethe v Tony Ketter
    Civil Application No. 31 of 2012
On appeal from
High Court of Kenya at Nairobi
Constitutional Petition No. 436 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction pending appeal)

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, "Political Parties Forum Coalition & 3 others v Registrar of Political Parties & 2 others [2014] KECA 313 (KLR)", Case Analysis (2014). Civil Appeal (Application) No. 80 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/313/eng@2014-10-17

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