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Court of AppealAllowedCivil Application E101 of 2024

Devolution Empowerment Party & another v Chepngeny & 5 others

Court of Appeal
20 December 2024
4,247 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal paused a High Court ruling against the Devolution Empowerment Party, keeping contested party leadership changes on hold until the full appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru (Warsame, Mativo and Gachoka, JJA) on a notice of motion dated 6th November 2024 by the Devolution Empowerment Party and its National Executive Committee seeking stay of execution of a judgment of the High Court at Kericho (Sergon, J.) dated 30th October 2024 in Constitutional Petition No. E009 of 2024. The High Court had found that the Political Parties Disputes Tribunal lacked jurisdiction over an anticipated dispute, upheld the petition, and quashed the Tribunal's ex parte order and Gazette Notice No. 5805 of 9th May 2024 gazetting party officials. The applicants sought stay pending appeal under Rule 5(2)(b) of the Court of Appeal Rules, 2022. Applying the settled twin principles - arguability and nugatory aspect - the Court found one bona fide arguable ground: whether the High Court judge usurped the PPDT's jurisdiction over political party disputes. On the nugatory limb, the Court noted that although a Special National Delegates Convention had been held on 23rd November 2024 electing new officials, those officials were yet to be registered because the PPDT, in a separate complaint (PPDTC/E008/2024), had restrained the Registrar of Political Parties from implementing the Convention's resolutions. The contested officials therefore remained unregistered, and the applicants satisfied the second prerequisite. The Court allowed the application and stayed execution of the High Court judgment pending the hearing and determination of the appeal, with costs of the application in the appeal. The ruling binds no issue of substantive law beyond restating Rule 5(2)(b) principles; it preserves the status quo ante pending the full 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 intended appeal is arguable
  2. 2.Whether, if the application is not granted, the success of the appeal would be rendered nugatory

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found one bona fide arguable ground: whether the learned Judge usurped the jurisdiction of the PPDT to hear and determine disputes arising from a political party.

Reasoning

The Court applied the settled test that an arguable appeal need not succeed but must not be frivolous and warrants full argument. Without making definitive findings on the merits, it held that the jurisdictional question - whether the High Court judge encroached on the PPDT's statutory preserve - was a bona fide issue fit for resolution on appeal.

p. 7
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

The second limb was satisfied because the contested officials are yet to be registered owing to the PPDT stay, so the appeal would be rendered nugatory if the High Court judgment were executed.

Reasoning

The Court noted that nugatory factors depend on the circumstances of each case and the conflicting claims of both sides. Since the Registrar had been restrained by the PPDT from implementing the resolutions of the Special National Delegates Convention, the contested officials remained unregistered, and execution of the High Court judgment would render the appeal nugatory.

p. 8

Legal principles established

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  • A Rule 5(2)(b) applicant must demonstrate both that the appeal is arguable and that it would be rendered nugatory if stay is refused; one limb alone is insufficient.
  • On a Rule 5(2)(b) application the Court exercises an original, independent discretion, not an appellate one.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 30th October 2024 by Sergon, J. in Kericho High Court Constitutional Petition No. E009 of 2024 pending the hearing and determination of the appeal to the Court of Appeal
  2. 2.Costs of the application shall be costs in the appeal

The bench

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

Mohamed Abdulahi Warsame
MA WarsameJA
Currently serving
majority
majority
majority
On appeal from
High Court of Kenya at Kericho
Constitutional Petition No. E009 of 2024
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 5(2)(b), 44(1) & (2) and 45 of the Court of Appeal Rules, 2022

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.

Therefore, we find that the applicants have satisfied the second prerequisite and allow the application dated 6th November 2024 and order a stay of execution of the judgment delivered on 30th October 2024 by Sergon, J.
p. 8Final orders - stay granted
These two limbs must both be demonstrated and it would not be enough that only one is demonstrated.
p. 7Rule 5(2)(b) twin principles
The costs of this application shall be costs in the appeal.
p. 8Costs order

Issues in the judgment

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minor

Paragraph numbering restarts; two paragraphs are numbered '1'.

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, "Devolution Empowerment Party & another v Chepngeny & 5 others", Case Analysis (2024). Civil Application E101 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1856/eng@2024-12-20

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