Kagai v Dzuya & 7 others; Registrar of Political Parties & another (Interested Parties) (Employment and Labour Relations Petition E008 of 2024) [2024] KEELRC 2438 (KLR)
The bottom line
#A Nairobi court ruled that seven Jubilee Party officials could not keep their state corporation jobs and party positions at the same time, giving them 30 days to choose one.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was sub judice given pending High Court suits over the Jubilee Party leadership
The petition was not sub judice because the respondents failed to demonstrate that the pending suits were between the same parties, over the same subject matter, and before courts of competent jurisdiction.
The court adopted the Supreme Court's formulation of the sub judice rule in the KNCHR case, which requires proof of multiple suits between the same parties or their representatives over the same subject matter before competent courts, with the later suit staying pending the earlier one. The respondents only showed pending suits by other parties (e.g. matters by Hon. Jeremiah Kioni) and a status quo order; they did not prove the required identity of parties and subject matter, so the sub judice objection failed.
Whether the 1st to 7th respondents simultaneously held political party office and public office
The petitioner proved on a balance of probability that each of the seven respondents held both political party office and public office at the same time, the facts not having been controverted.
The respondents were gazetted as Jubilee Party national officials by Gazette Notice No. 3195 of 22/3/2022 and were appointed to various state corporations in May, August and October 2023. The evidence was not rebutted; pending litigation over party positions elsewhere did not resolve the dispute, as the fact of dual holding was established on the material before the court.
Whether the dual holding violated the Constitution and the law
The appointments of the seven respondents to state corporations while they held Jubilee Party office violated Article 232(2)(b) of the Constitution, section 23(2) of the Leadership and Integrity Act and section 12(1)(c) of the Political Parties Act.
Relying on its earlier decision in Ben Murumbi Sihanya, the court held that a public officer within Article 260 cannot hold party office or engage in compromising political activity. Applying that principle, the concurrent holding of Jubilee Party positions and state corporation appointments contravened Article 232(2)(b), section 23(2) of the Leadership and Integrity Act and section 12(1)(c) of the Political Parties Act.
Whether the respondents should refund remuneration earned while holding both offices
The refund prayer was dismissed because there was no evidence of any remuneration actually paid to the respondents by the Jubilee Party.
Although the court found the dual holding unlawful, the reliefs on remuneration required proof of actual payment. No such evidence was placed before the court, so the prayers for refund of remuneration failed for lack of proof, limiting the relief granted to the declaration and the election order.
Legal principles established
#- A public officer, within the meaning of Article 260 of the Constitution, shall not hold office in a political party or engage in political activity that may compromise or be seen to compromise the political neutrality of their office.
- A party invoking the sub judice rule must establish that there is more than one suit over the same subject matter, one instituted before the other, both pending before courts of competent jurisdiction, and that the suits are between the same parties or their representatives.
- A party found to hold both political party office and public office must be put on terms to elect which to keep, failing which the public office is automatically relinquished.
Court orders
#- 1.A declaration that the 1st to 7th respondents ought not to hold office as officials of a political party and public office at the same time, as that violates Article 232(2)(b) of the Constitution, section 23(2) of the Leadership and Integrity Act and section 12(1)(c) of the Political Parties Act.
- 2.The 1st to 7th respondents are granted the opportunity to make an election as to which office they wish to relinquish and which they opt to retain, to be exercised within 30 days of the order, failing which the position held in the state corporation or public office shall automatically be relinquished.
- 3.Each party to meet their own costs of the suit.
- 4.For the avoidance of doubt, the EACC was struck out of the suit and does not appear as a party in the judgment.
- Jurisdiction invoked
- Original constitutional petition jurisdiction under the Constitution of Kenya 2010 (Articles 77, 232(2)(b), 260 read with section 23 of the Leadership and Integrity Act and section 12 of the Political Parties Act); no specific constitutional or statutory article invoking jurisdiction is quoted in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kagai v Dzuya & 7 others; Registrar of Political Parties & another (Interested Parties) (Employment and Labour Relations Petition E008 of 2024) [2024] KEELRC 2438 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2438/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.