Guyo & another v Guracha & 9 others (Civil Appeal E309 of 2024) [2025] KECA 261 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that questions about a politician's party membership and resignation require a full hearing with evidence, not a shortcut challenge.
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 High Court had jurisdiction over the petition given section 40 of the Political Parties Act, 2011 and the Political Parties Disputes Tribunal
- 2.Whether Articles 181 and 182 of the Constitution read with section 33 of the County Governments Act, 2012 oust the High Court's jurisdiction over the petition
- 3.Whether the petition was bad in law for seeking to restrain the Governor and Deputy Governor from discharging their constitutional mandate
- 4.Whether the preliminary objection, resting on contested facts (membership and resignation), could properly be determined at a preliminary stage
Key legal issues
#Whether contested questions of party membership and resignation can be resolved via preliminary objection
They cannot; both are questions of fact requiring evidence at the hearing of the petition, so the preliminary objection was properly dismissed.
The appellants prevaricated on whether they were Jubilee Party members, creating a dispute of fact. Resignation is likewise factual. Under Mukisa Biscuits, a preliminary objection must assume all pleaded facts are correct and raise a pure point of law; where facts must be ascertained it is improperly raised. Further, the objection was not capable of disposing of the entire suit since prayers against other respondents would survive.
Scope of an interlocutory appeal
The Court of Appeal on an interlocutory appeal must not make conclusive findings of fact or law that would prejudice or embarrass the trial court.
The parties conflated the real issue and argued matters reserved for trial. The established practice is that an interlocutory court expresses views only on a prima facie basis; a concluded view would tie the hands of the judges who eventually hear the case.
Whether the preliminary objection could dispose of the suit
No; even if the prayers against the Governor and Deputy Governor failed, the prayers against the other respondents would remain intact.
Following Law, JA in Mukisa Biscuits, a preliminary objection must be one that may dispose of the suit. The High Court found that upholding the objection would render only the prayers against the appellants unmerited, leaving the rest of the petition alive, and no issue was taken with that finding on appeal.
Legal principles established
#- On an interlocutory appeal, an appellate court may only express views on matters in controversy on a prima facie basis and must not make conclusive findings that would tie the hands of the trial court.
- A preliminary objection must raise a pure point of law on assumed facts; it cannot be raised where facts must be ascertained or judicial discretion exercised, and it must be one capable of disposing of the suit.
- Resignation, like defection, is a matter of fact requiring factual interrogation and cannot be the subject of a preliminary objection.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the 10th respondent
- 3.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- Appeal against a preliminary ruling under the appellate jurisdiction of the Court of Appeal (Constitution of Kenya, 2010); no specific provision cited in the judgment
Relief refused
#Setting aside the High Court's dismissal of the preliminary objection
The preliminary objection rested on contested facts of membership and resignation which cannot be determined as a pure point of law, and even if upheld it would not dispose of the whole suit
Costs
Appeal dismissed with costs to the 10th respondent (the Attorney General)
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.
We have said enough, we believe, to show that this appeal is devoid of merit. It is dismissed with costs to the 10th respondent.
A preliminary objection is in the nature of what used to be called a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
resignation is a matter of fact and just like defection, it similarly requires factual interrogation devoid of which it cannot be the subject of a preliminary objection.
at an interlocutory stage, the Court may only express its views on the matters in controversy on a prima facie basis
for it to be upheld, the preliminary objection must be one that may dispose of the suit
Issues in the judgment
#The coram lists D. K. Musinga as President of the Court of Appeal but no single judge is identified as author of the judgment, which reads as a judgment of the whole bench
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Guyo & another v Guracha & 9 others (Civil Appeal E309 of 2024) [2025] KECA 261 (KLR)", Case Analysis (2025). Court of Appeal, Nairobi, Civil Appeal (interlocutory appeal from High Court petition); judgment delivered 21st February 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/261/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.