Hon Harrison Maluki Mawia & 2 others v Wiper Democratic Movement, The Secretary General & 4 others

3. 2. That pending the inter-parties hearing of this application, the Honourable court be pleased to issue a temporary order of stay of execution and/or enforcement of order no. b of the judgment of the Political Parties disputes Tribunal delivered on 24th June 2025 in PPDT Complaint No. E001 of 2025. 3. That pending the hearing and determination of this application the Honourable court be pleased to issue a temporary order of stay of execution and/or enforcement of the order no. b of the Political Parties Disputes Tribunal delivered on 24th June 2025 in PPDT complaint No. E001 of 2025 directing the 2nd respondent to convene a meeting and conduct elections within 30 days from the date of judgement. 4. That pending the hearing and determination of the appeal herein, this Honourable Court be pleased to issue a stay of execution and/or enforcement of order no. b of the judgment of the Political Parties Disputes Tribunal delivered on 24th June 2025. 5. That the costs of this application be in the cause. The Notice of Motion is supported by the affidavit of Hon. Harison Maluki Mawia and is based on the following grounds: 1. The tribunal’s Judgment declared the appellants’ removal from the respective house leadership positions as unlawful and in suo moto paradoxically ordered fresh elections within 30 days, which are imminent. 2. That the orders and directions given by the tribunal were not party of the prayers by either party in the proceedings and thus the court acted outside its jurisdiction. 3. The Appellants/Applicants have filed a competent appeal that raises serious and arguable legal questions with high prospects of success. 4. That the main appeal will be rendered nugatory and an academic exercise if this application is not certified urgent and the ex-parte orders for stay of execution issued as the respondent will proceed to execute the impugned judgment. 5. That the orders sought in the application only seek to preserve the juristic essence, the substance and the substratum of the instant appeal in real time and the spirit of the rule of law, fair hearing and fair administration action and access to justice between all the concerned parties. 6. If the 2nd respondent proceeds to conduct the elections as ordered by the tribunal, the appeal herein shall be rendered nugatory and an academic exercise, the appellants will suffer irreparable harm. 7. That the conduct of elections for the respective house leadership positions held b appellants/ applicants is guided by the Standing Orders of the Interested Party as well as the 2nd respondent’s constitution and the Tribunal grossly erred in purporting to give directions on how and when the elections would be conducted. 8. That the honourable Tribunal exceeded its statutory and constitutional jurisdiction by directing the 2nd respondent to hold elections within 30 days, effectively intervening in internal party affairs and imposing timelines for political processes outside its mandate under Section 40 of the Political Parties Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19506/eng@2025-07-28 2

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9. That under the applicable Standing Orders of the County Assembly of Kitui, elections for leadership positions can only be conducted where a vacancy exists, and since the Appellants are currently in office, no lawful basis exists for convening or conducting elections, rendering the Tribunal’s order legally untenable. 10. That the decision of the Tribunal violates the appellants’ rights under Articles 47 and 50 of the Constitution, which guarantee fair administrative action and the right to a fair hearing. The Tribunal failed to provide a complete and effective remedy despite finding the removal unlawful, and its orders leave the appellants vulnerable to further unlawful action before their appeal is heard. 11. That the Tribunal, having correctly found that the appellants’ constitutional and procedural rights had been violated, erred in issuing consequential orders that, if implemented, would perpetuate and deepen the same violations, including subjecting the appellants to fresh elections before a lawful vacancy arises or due process is followed. Such an approach defeats the protective function of constitutional rights, undermines the integrity of adjudication, and offends the principles of justice and governance under Articles 10, 47, and 50 of the Constitution. 12. The balance of convenience favours the preservation of the status quo until the legality of the impugned decision is conclusively determined by this court. 13. This application has been made without undue delay and in good faith. 14. That the orders sought in the application only seek to preserved the juristic essence, the substance and the substratum of the instant appeal in real time and the spirit of the rule of law, fair hearing and fair administration action and access to justice between all the concerned parties. 15. No prejudice will be occasioned to the respondents if the application is allowed, while great prejudice shall result to the appellants if denied. 16. It is in the interest of justice that orders sought be granted. 4. The application is supported by the affidavit of Hon. Harrison Maluki Mawia who is the leader of the Majority Party, Majority Party Whip and Deputy Majority Whip. The affidavit is sworn on behalf of the 2nd & 3rd applicants vides annexed authority marked HMM1. The applicants have reiterated the above grounds in his affidavit and avers that they were removed from office through a process which they challenged thro’ the Political Parties Disputes Tribunal Complaint No. E001/2025. The Tribunal delivered Judgment on 24/06/25 and declared that their removal was unlawful but instead of reinstating them fully it directed the 2nd respondent to convene a meeting within 30 days to hold fresh leadership elections and only directed that they remain in office temporary pending such elections. 5. The applicants contend that they have lodged an appeal in this court and has raised weight and triable issues. It is the applicant’s contention that if the court does not order stay of execution the 2nd respondent is likely to proceed with elections rendering the appeal herein nugatory. The applicant avers that the 2nd respondent is likely to proceed with election as directed by the Tribunal and are apprehensive that the elections may be held at anytime even before this application is determined as the 1st and 2nd respondent have issued a notice of a meeting for Wiper election and nominated leaders in Kitui and part of the agenda of the meeting is to comply with Judgment of the Political Parties Disputes Tribunal dated 24/06/2025 which includes holding elections. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19506/eng@2025-07-28 3

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6. It is the contention by the applicant that they are opposed to the decision of the Tribunal to validate a process that it itself declared unlawful. That the Tribunal exceeded its statutory and constitutional jurisdiction under Section 40 of the Political Parties Act by effectively restructuring the leadership of a political party and imposing timelines for internal processes a function squarely reserved for Political Party Organs and regulated by Party Constitutions and relevant standing orders. The applicant further avers that under the Kitui County Assembly Standing Orders, elections for Majority Leader, Majority Whip and Deputy Whip can only be conducted where the respective offices have fallen vacant either thro’ resignation, lawful removal or natural affliction. He asserts that the 1st, 2nd and 3rd appellant remain in office as duly elected officials and no lawful process has been undertaken to vacate those offices and accordingly, holding fresh elections without a vacancy is a legal and procedural nullity and undermines the rule of law and internal party governance. That the decision of the Tribunal offends the Constitutional rights guaranteed under Article 47 of the Constitution as well as Article 50 which secures the right to have disputes resolved before an independent and impartial forum. That the Tribunal has deprived them these remedies and it is in the interest of justice that the court orders stay of execution of the Judgment pending the hearing and determination of thee appeal. 7. The application was filed under a certificate of urgency and this court ordered that there be an interim order of stay of execution and/or enforcement of the order No. B of the Judgment of the Political Parties Dispute Tribunal for a period of 14 days pending the hearing and determination of the application inter-parties. This prompted the first and 2nd respondents to file a Notice of Motion dated 10/07/2025 under a certificate of urgency seeking to discharge the interim orders based on the grounds that it has occasioned a leadership vacuum in Kitui County and were obtained by material non-disclosure and in bad faith. They further contend that the applicants are misusing and abusing judicial and court processes. That the 1st, 2nd and 3rd applicants are no longer leader of Majority Party, Majority Party Whip and Deputy Majority Whip of the Majority side in the County Assembly of Kiuti, the interested Party herein as they were lawfully removed from office on 4/7/2022 prior to the service of the court orders issued by this court at a session of the majority of the members in Kitui County pursuant to orders of the Parties Dispute Tribunal issued on 24/6/2025. That the session held on 4/7/2025 was in strict compliance with the orders to the Tribunal of 24/6/2025 and Standing Order 15 of Kitui County Assembly in the manner provided in the law. That the court ought to support this process and not seen to worsen it. That there is no other procedure in law to resolve the dispute between members of a political party in terms of their leadership in the assembly and neither is the court clothed with jurisdiction to block ex-parte the process of removal and replacement of Party leadership in the County Assembly of Kitui, this is a matter in the hands of members of the majority party and majority members. That it is in the interest of justice that the application be heard as a matter of urgency. The respondents in the substantive Notice of Motion pray that the order issued on 4/7/2025 be set aside and the Notice of Motion dated 1/7/2025 be struck out and the court to direct the Deputy Speaker or other member of the Interested Party’s Speaker’s panel to ensure compliance with prayer No. 2 in so far as it relates to announcing the majority party leadership changes in Kitui County Assembly. 8. The motion is based on the ground that the suit is bad in law and offends public policy. That there is no cause of action with respect to the suit. Further that: 1. That this court has no jurisdiction to impose political leadership in the County Assembly and this is an issue determined by the majority members of the majority party in the County Assembly. 2. Court orders ought to be respected and the nature of disputes understood by courts to allow for justice to be served. This can only be done if ex-parte orders are avoided where no prima facie substance is apparent particularly in political disputes. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19506/eng@2025-07-28 4

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3. That the orders issued by this Honourable court on 4th July 2025 have created chaos, confusion and disorder within Kitui County Assembly. 4. The members of the 1st respondent met pursuant to a judgment of the Political Parties Disputes Tribunal (PPDT) of 24th June 2024 that directed members to have a meeting and find ways to resolve the leadership dispute including by way of elections. 5. The party leadership gave due notice for the meeting and travelled to Kitui on 4th July 2025 to hold consultations, review the matter and resolve the leadership dispute that pitted the appellants herein against the majority membership of their political party, Wiper Democratic Party, who no longer wish to have them, any further in office. 6. As the respondents moved to find a solution procedurally, and sat with members who voted to remove the appellants herein and replace them. this was done, the former majority leader, 1st appellant did mention that orders had been obtained to stop the move to find a solution, no service had been effected by the time elections were conducted. 7. That the appellants herein are no longer office holders in the offices of Majority Party leader, Majority Party Whip and Deputy Majority Whip of the 1st respondent and this is confirmed by the party itself as per minutes of the Elections. 8. That it is impossible for this Honourable Court to have issued the interim orders had it understood the nature of the suit and it is urged that they be set aside to allow the assembly to operate effectively pending inter-partes hearing. 9. Nothing is alleged as being unprocedural, indeed, the appellants confirm having received the notice. There therefore was no jurisdiction for the interim orders in the first instance to continue. 10. The Honourable court has caused a leadership vacuum by the interim orders of 4th July 2025 and disrupted orderly conduct of house business. 11. That the only known way for political parties to change leadership is by the majority members of the majority party determining the leadership. 12. That speaker Kevin Kinengo Katisya is an interested party in the dispute between the Majority party members in Kitui County Assembly in so far as he has deliberately aligned with the appellants herein who seek to abuse the court process to cling to their positions in the County Assembly. 13. That the speaker Katisya has severally resisted to announce the preferred leaders of the Majority Party in the Assembly in a clear act of abuse of office. 14. That it is incumbent upon the court to direct that a person not directly interested in this matter announces the leadership changes in the assembly as is required by Standing Order 15 of the Kitui Cunty Assembly Standing Orders as Katisya Kinengo the Speaker will not act against his interest and will not announce it but for an order of this court. 15. The court lacks jurisdiction to determine a non-justiciable political suit. 16. A suit which does not lie cannot be tried by a court as there would be nothing to determine. 17. The suit is null and void for want of major provisions of the law. 18. The plaintiff’s claim is still borne, the cause of action does not exist in law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19506/eng@2025-07-28 5

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19. That the appeal is a disguise, a move to delay justice and to abuse the court literally to allow an unpopular leadership to stay on in power against the wishes of the majority leadership in the Court Assembly. 9. The Notice of Motion is supported by the affidavit of Shakila Addalla, the Secretary General of Wiper Democratic Movement who has urged the court to set aside the interim orders issued by this court to allow the orderly running of the 1st respondent as a political party in whom all parties herein are members including the Speaker of the Interested Party, Kinengo Katisya currently facing disciplinary proceedings to allow the taking office by the 3rd, 4th & 5th respondents and orderly running of the county affairs to avoid being used to keep an unpopular leadership in office removed through the vote of the majority members. He avers that following persistent leadership challenges a vote of no confidence was passed against the appellants. This was communicated to he Wiper members on 17/02/2025 inviting all WDM MCA from Kitui County Assembly to a meeting at Wiper Democratic Movement headquarters Nairobi. The notice is annexed as UDM-1. That Hon. Munyoki Mwinzi was elected as Majority Leeder Hon. Erastus Mbuno, Deputy Majority Leader and Daniel Ngoima Kimanzi Majority Whip and Hon. Cyrus Kisavi Musyoka the Deputy Majority Whip. 10. That the Speaker failed to communicate and implement the leadership changes. The newly elected leadership lodged a complaint with the party regarding the speaker’s non-compliance. That the appellant approached the Political Parties Dispute Tribunal and obtained a conservatory order against their removal from office. The Tribunal issued its Judgment on 24/6/2025 and held that the 1st respondent was in breach of the process for failure to respond to the letters by the appellants. The Tribunal directed that the right process be followed and members to meet within 30 days to resolve the matters and consider all ways including by way of elections. 11. That the party fully complied with the Judgment and on 4/7/2024 members voted to resolve the dispute by elections. The 1st respondent after the vote informed the team that there was a court order. That he confirmed that there was no service of the order. Later at 9.20pm the Speaker sent a message saying that the elections were against the court order. That the 3rd, 4th & 5th respondents are the undisputed party leadership at Kitui County and the court should allow them to assume office. That the case filed in this court is a smoke screen and aimed to delay the removal of the applicants from office and to unlawfully misuse the orders of this court. He contends that the court lacks jurisdiction to adjudicate over who will be leader of the 1st respondent in the Assembly of Kitui or resolve a matter where there is no cause of action. The 3rd, 4th and 5th respondents opposed the application and filed a replying affidavit. The applications were canvassed by way of written submissions. This court gave directions that the application for stay of execution filed by the appellants and the Notice of Motion to discharge the interim orders be heard simultaneously. Submissions Analysis and Determination 12. 13. I have considered the applications. The issues for determination are: 1. Whether this court should order stay of execution of the decision of the Political Parties Disputes Tribunal to be referred to as PPDT. 2. Whether the court should discharge the interim orders of stay of execution issued by this court on 4/7/2024. Whether the court should order stay of execution of the Judgment of the PPDT. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19506/eng@2025-07-28 6

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The appellants filed the Notice of Motion dated 1st July 2025 and the substantive prayer was brought under Order 42 of Rule 6 of the Civil Procedure Rules which provides as follows: 14. 15. “ (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) No order for stay of execution shall be made under sub-rule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and (b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. (3) Notwithstanding anything contained in sub-rule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application. (4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given. (5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling. (6) Notwithstanding anything contained in sub-rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.” The three conditions which a party seeking an order of stay of execution has to fill are: 1. That substantial loss may result to the applicant unless the order is issued. 2. The application has been brought without unreasonable delay. 3. Security as the court may order for the due performance of the decree or order. These principles were laid down in the case of Butt v Rent Restriction Tribunal 1979 E.A where the court stated that: “ the power of the court to grant or refuse an application for stay of execution is discretion should be exercised in such a way not to prevent an appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19506/eng@2025-07-28 7

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b) The general principle in granting or refusing a stay is, if there is no other overwhelming hindrance, a stay must be granted so that an appeal should not be rendered nugatory should the appeal court reverse the Judgments discretion. c) Thirdly, that a Judge should not refuse a stay if there are good grounds for granting it merely because in his opinion, a better remedy may become available to he applicant at the end of the proceedings. d) Lastly, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances and its unique requirements. The court in exercising its powers under Order XLI Rule 4(2) (b) of the Civil Procedure Rules can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will lead to the lapse of the order of stay of execution. The first issue for consideration is whether the application was filed without undue delay. The impugned Judgment was delivered on 24/6/2025 this application was filed on 1/7/2025 together with the memorandum of appeal. My view is that the application for stay of execution was filed timeously and without undue delay. Substantial Loss: The issue of substantial loss is the key issue for determination which the court has to consider. In the case of Tropical Commodities Supplies Ltd & Others v International Credit Bank Ltd (in liquidation) (2004) EA 33 the court stated that, “Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept. It refers to any loss, great or small that is of real worth or value as distinguished from a loss without value that is merely nomicial.” 16. In the case of James Wangalwa and Another v Agnes Naliaka Cheseto, (2012) eKLR the court stated that: “ No doubt in law the fact that the process of execution has been put in place or is likely to be put in motion by itself does not amount to substantial loss. Even hen execution has been levied and completed, that is to say, that the attached properties have been sold as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rules. This is because execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential care of he applicant as the successful party in the appeal…the issue of substantial loss is the cornerstone of both jurisdictions substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.” 17. See Century Oil Trading Company Ltd v Kenya Shell Limited. High Court Milimani CA 156 of 2007 where the stated that the court has to balance the interest of the applicant who is seeking to preserve the status quo pending the hearing of the appeal so that his appeal is not rendered nugatory and the interest of the respondent who is seeking to enjoy the fruits of the Judgment. The court when dealing with an application of stay of execution seeks to ensure that the substratum of the Judgment is preserved https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19506/eng@2025-07-28 8

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pending the hearing and determination of the appeal. For the court to order stay of execution, the court has to determine the circumstances of the case. 18. In this case we are dealing with a situation where the impugned Judgement has been enforced. This appeal is against Order (b) of the Judgment of the PPDT which states as follows: “ b) An order is hereby issued directing the 2nd respondent to convene a meeting of its members in the interested party for purpose of resolving the leadership crisis in the majority side including holding any elections, if the members deem the same as necessary within 30 days from the date of this Judgment. The meeting shall be held in strict compliance with the Interested Party’s Standing Orders and the 2nd respondent’s Constitution and any other relevant law.” 19. The second respondent thro’ the affidavit of Shakila Abdalla has elaborately deposed that they have complied with the said Judgment and a Majority leader, Deputy Majority leader, Majority Whip and Deputy Majority Whip. The 2nd respondent in their grounds of opposition assert that the meeting of 4/7/2025 was conducted in strict compliance with the Judgment of the PPDT. The question is whether this court can order a stay of Judgment which has been fully complied with. I note that there was misrepresentation by the applicants as the respondent has annexed minutes to show that they participated in the meeting where the elections were held. 20. For the appellants to come before this court seeking to stay the judgment of the PPDT without disclosing to the court that the Judgement has been complied with amounts to an abuse of the court process. The applicants were seeking an equitable remedy, one of the maxims of Equity is that Equity does not act in vain. On the basis of this maxim courts have held again and again that it cannot satisfy itself by making orders which cannot be enforced or grant an injunction which will be ineffective for practical purposes. Where it is clear that it will be impossible to comply with the orders sought the court will decline to grant it. In R v Martime Authority & Another, Zam Zam Shipping Ltd (Interested Party) Judicial Review No. 2020) 2021 KEHC 309 Mativo J as he then was stated: “ No court of law well knowingly act in vain. The general attitude of courts of law is that they loath in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose.” 21. The Supreme court in Dade & 3 Others held v Inspector General of National Police Service & 5 Others Pet No. 6, (E007) 4 (E005) & 8(E010) of 2022 (Consolidated (2023) KESC 40 KLR stated that: “ An appeal or an issue is moot when the decision will not have the effect of resolving a life controversy affecting or potentially affecting the rights of parties. Such a life controversy must be present not only when the action or proceedings is commenced but also when the court is called upon to reach a decision. The doctrine of mootness is therefore based on a motion that judicial resources ought to be utilized efficiently and should not be dedicated to an abstract proposition of law and that courts should avoid deciding on matters that are abstract and academic.” 22. Thus, even where the appeal is arguable if it is merely academic it is bound to fail. It is clear from the facts of this case that the application has been overtaken by events and the issue of substantial loss does not arise. The appeal does not involve a monetary Judgment and the issue of security does not arise. The balance of convenience does not tilt in favour of the appellants. The respondents have raised the issue of jurisdiction of this court. The issue has been raised early enough as required in Owners of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19506/eng@2025-07-28 9

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Motor vessel Lilian S. v Caltex Oil Kenya Ltd where it was held that a question of jurisdiction may be raised by a party or court on its own motion and must be decided forthwith on the evidence before the court. That failure to make disclosure may result in the discharge of any order made upon ex-parte application. 23. The respondent held its elections and voted out the applicant in compliance with the Standing Order No. 15 of Kitui County Assembly. Courts have no jurisdiction to interfere with the affairs of the County Assembly. There was compliance with the Standing Orders and there is no jurisdiction for this court to interfere with that process. Whether the court should discharge the interim orders. 24. The respondents have shown that the appellants moved to the PPDT and obtained orders which allowed them to remain in office. They have now moved to this court to stay that decision which had in the interest of justice ordered the parties to conduct elections within 30 days. The applicants have not come to court with clean hands. Order 40 rule 7 Civil Procedure Rules provides as follows: “ Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.” 25. The Rule gives the court discretion to set aside discharge or vary orders issued ex-parte. It is trite that courts discretion should be exercised judiciously. The court has discretion under Section 3A of the Civil Procedure Act to issue such orders as may be necessary for the ends of justice provides as follows: “ Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 26. The court has been informed that the orders issued by the court have created chaos in the County Assembly. Court Orders should serve the interest of justice. It is in the Public interest that the interested party should function at all times for the benefit of the people of Kitui Court Article 1 of the Constitution recognizes that sovereign power belongs to the people and in this case the majority members of the elected representative in the assembly have spoken and their sovereign will ought to be respected. 27. I find that the interim ex-parte order does not augur well for running of the affairs of the County Assembly. I therefore order as follows: 1. That the interim ex-parte order issued on 4/7/2025 be set aside. 2. I grant prayer No. 4 of the Notice of Motion dated 10/7/2025 and Order that: a. 3. the Deputy Speaker or other member of the Interested Party’s Speakers panel to ensure compliance with Prayer No. 2 so far as it relates to announcing the Majority Party leadership changes in Kitui County Assembly. I make no orders as to costs. DATED, SIGNED AND DELIVERED AT KITUI THIS 28TH DAY OF JULY 2025 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19506/eng@2025-07-28 10

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