Masase & another v Speaker, County Assembly of Kisii & 6 others (Civil Application E061 of 2025) [2026] KECA 1414 (KLR)
The bottom line
#Kenya's Court of Appeal refused to reinstate two removed Kisii County Assembly members pending appeal, because their removal was complete, compensable, and stopping assembly business would hurt the public.
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 applicants have established at least one arguable point in the proposed appeal
- 2.Whether, if the injunctions are denied, the intended appeal will be rendered nugatory (including the balance of convenience/public interest)
Key legal issues
#Whether the applicants demonstrated an arguable appeal under rule 5(2)(b)
Yes - the argument that the dispute was wrongly classified as a political parties dispute when it involved removal of an independent member and an employment dispute sufficed.
The court adopted the Kang'ethe Kinyanjui test that an arguable appeal need not succeed but must not be frivolous. The contention that the trial judge erred in finding the dispute fell under the Political Parties Act, including as regards an independent member who belongs to no party, was enough to cross the arguability threshold.
Whether the appeal would be rendered nugatory if the injunction is denied
No - the alleged harm is compensable in damages, the removal is complete and potentially reversible, and public interest favours continued committee business.
Applying the nugatory test from Kang'ethe Kinyanjui, the court held that economic loss can be reasonably remedied through compensation and pecuniary reliefs. Since the applicants' removal and replacement had already been perfected and entrenched, no injunction was needed to preserve the position, and halting committee business would cause irreversible public injury.
Legal principles established
#- An application under rule 5(2)(b) requires the applicant to satisfy both limbs: an arguable appeal and that the appeal will be rendered nugatory if relief is denied; success on one limb alone is insufficient.
- Where removal and replacement have already been fully effected and are reversible or compensable in damages, an interlocutory injunction will be refused; the balance of public interest may weigh against stalling public business.
Court orders
#- 1.The notice of motion dated 27th March, 2025 is dismissed
- 2.Costs shall abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court (ELRC)
- Amended ex parte chamber summons dated 17th February, 2025
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Temporary injunction restraining implementation of the impugned communications of 12th February 2025 pending appeal
Removal already perfected and entrenched; nothing left to be arrested by a temporary injunction; balance of public interest against the injunction
Injunction restraining payments, disbursements or allowances to persons appointed in place of the applicants
Alleged economic loss can be adequately remedied through compensation
Injunction restraining implementation of directives or resolutions of the reconstituted committees
Stalling county assembly business would amount to irreversible public injury
Costs of the application
Costs to await the outcome of the appeal
Costs
Costs shall abide the outcome of the appeal.
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.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
the applicants have succeeded on the threshold of the proposed appeal being arguable and not frivolous, but they have failed on the limb of the proposed appeal being rendered nugatory because their removal may be reversible or adequately remedied through compensation.
it is not disputed that the removal of the applicants has already been perfected through their replacement so that nothing is left to be arrested by a temporary injunction - the removal and replacement having completely become, for the time being, fully entrenched.
In the result, the applicants have failed to fully satisfy the requirements for the grant of injunction orders as prayed for under Rule 5(2)(b) of the Court of Appeal Rules, 2022. The upshot is that the application is not merited and it is hereby dismissed. Costs shall abide the outcome of the appeal.
Issues in the judgment
#The judgment states the application was 'listed for hearing before us on 4th May, 2026', yet submissions dated 27th April 2026 were filed and the judgment is dated 10th July 2026 - internally consistent, but the applicants' submissions are dated 19th September, 2025, which post-dates the impugned ruling of 24th March 2025 but predates the hearing date; no material contradiction found.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masase & another v Speaker, County Assembly of Kisii & 6 others (Civil Application E061 of 2025) [2026] KECA 1414 (KLR)", Case Analysis (2026). Notice of motion dated 27th March, 2025 (application in a pending intended appeal from ELRC at Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1414/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.