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Court of AppealDismissedCourt of Appeal, Nairobi, Civil Appeal (interlocutory appeal from High Court petition); judgment delivered 21st February 2025

Guyo & another v Guracha & 9 others (Civil Appeal E309 of 2024) [2025] KECA 261 (KLR)

Court of Appeal of Kenya
21 February 2025
2,886 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is an interlocutory appeal to the Court of Appeal by the Governor and Deputy Governor of Isiolo County, Abdi Guyo and John Lowasa, against a High Court decision dismissing their preliminary objection to a constitutional petition. The petitioners alleged that the appellants defected from the Jubilee Party (a constituent of the Azimio coalition, under whose banner they were elected in August 2022) to the United Democratic Alliance in June 2023, and sought declarations that they were deemed to have resigned their elective positions, injunctions, mandamus against the Registrar of Political Parties and the IEBC, and compensation. The appellants' preliminary objection argued that the High Court lacked jurisdiction, first because party membership disputes must go to the Political Parties Disputes Tribunal under section 40 of the Political Parties Act, and second because removal of a Governor is governed by Articles 181 and 182 of the Constitution read with section 33 of the County Governments Act. The High Court bench dismissed the objection, holding that membership and resignation were contested questions of evidence unsuitable for determination at a preliminary stage, and that none of the fifteen prayers specifically sought the Governor's removal, so upholding the objection would not dispose of the whole suit. The Court of Appeal, Musinga, Ngugi and Odunga, JJA, in a single judgment, affirmed that decision. Applying Mukisa Biscuits, the Court held that resignation, like defection, is a matter of fact requiring evidentiary interrogation and cannot ground a preliminary objection, and that an interlocutory appeal permits only prima facie views. The appeal was dismissed with costs to the 10th respondent, the Attorney General.

Questions the Court framed

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

  1. 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. 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. 3.Whether the petition was bad in law for seeking to restrain the Governor and Deputy Governor from discharging their constitutional mandate
  4. 4.Whether the preliminary objection, resting on contested facts (membership and resignation), could properly be determined at a preliminary stage

Key legal issues

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01

Whether contested questions of party membership and resignation can be resolved via preliminary objection

Holding

They cannot; both are questions of fact requiring evidence at the hearing of the petition, so the preliminary objection was properly dismissed.

Reasoning

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.

p. 6
02

Scope of an interlocutory appeal

Holding

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.

Reasoning

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.

p. 6
03

Whether the preliminary objection could dispose of the suit

Holding

No; even if the prayers against the Governor and Deputy Governor failed, the prayers against the other respondents would remain intact.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the 10th respondent
  3. 3.It is so ordered

The bench

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

majority

Wrote the judgment

majority
majority
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

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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

p. 6

Costs

Appeal dismissed with costs to the 10th respondent (the Attorney General)

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.

We have said enough, we believe, to show that this appeal is devoid of merit. It is dismissed with costs to the 10th respondent.
p. 6Final orders - dismissal of the appeal
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.
p. 6Definition and limits of a preliminary objection (Newbold, P.)
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.
p. 6Resignation and defection as factual issues
at an interlocutory stage, the Court may only express its views on the matters in controversy on a prima facie basis
p. 5Restraint in interlocutory appeals
for it to be upheld, the preliminary objection must be one that may dispose of the suit
p. 6Preliminary objection must dispose of the whole suit (Law, JA)

Issues in the judgment

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minor

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

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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, "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.