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Court deals fresh blow to Wetang'ula, Kenya Kwanza in majority party dispute
National Assembly Speaker Moses Wetang'ula.
The Court of Appeal has dealt a blow to National Assembly Speaker Moses Wetang'ula and Majority Leader Kimani Ichung'wah after judges dismissed their request to suspend a High Court's ruling that quashed the designation of Kenya Kwanza Alliance as the Majority Party.
The court rejected arguments that Mr Wetang'ula was at risk of suffering a "monumental embarrassment" and that he could be "subjected to undue trauma and ridicule" if the said verdict is implemented since he is also facing contempt proceedings related to alleged disobedience of the same ruling.
And to underline the high stakes involved in the battle for control of Parliament, Azimio leaders Junet Mohammed (Minority Leader) and Robert Mbui (Deputy Minority Leader) teamed up in court with activists, who want Mr Wetang'ula punished over the alleged contempt.
Mr Junet and Mr Mbui opposed the application to suspend the ruling describing it as "legally defective" and that Mr Wetang'ula disobeyed the High Court judgement by re- assigning Kenya Kwanza Alliance the Majority status on February 12, 2025.
"The National Assembly and its Speaker have not come to court with clean hands as the Speaker disregarded and disobeyed the orders of the High Court when he delivered a ruling on February 12, 2025 declaring Kenya Kwanza the majority coalition in the National Assembly," said Mr Junet and Mr Mbui.
The Appeals Court was approached with five applications for stay of the High Court's judgement delivered on February 7, 2025 quashing Mr Wetang’ula’s October 2022 declaration that Kenya Kwanza was the Majority Party.
In the said judgment, the High Court made various declarations among them that the Speaker’s determination contained in his communication from the chair made on October 6, 2022, on the Majority and Minority in the National Assembly violated Article 108 of the Constitution and, therefore, it was null and void.
Another key declaration was that the question as to which party or coalition of parties is the majority in the National Assembly in the Thirteenth Parliament was determined by the Kenyan voters during the August 9, 2022 general Election.
In addition, the High Court found that House Speaker cannot simultaneously hold leadership position of a political party. Mr Wetang'ula is the leader of Ford Kenya party.
The declarations originated from a petition filed by 12 activists through lawyer Kibe Mungai, stating that based on results of the General Election and which were gazetted by the electoral commission, Azimio was the Majority Party with 171 MPs against Kenya Kwanza's 165.
Following the judgment Mr Wetang'ula, the National Assembly, UDA Party leaders in Parliament (Mr Ichung'wa, Owen Baya, Silvanus Osoro and Naomi Jillo), Kenya Kwanza Coalition and Maendeleo Chap Chap party filed separate appeals and also applied for stay of execution.
They wanted court to issue temporary orders suspending the execution of the High Court judgment pending hearing and determination of their respective appeals.
But Justices Daniel Musinga, Mumbi Ngugi and Francis Tuiyott dismissed the consolidated application saying that though the pending appeal is arguable, the applicants failed to demonstrate it would lose substance if the disputed judgment is implemented.
"The threshold for grant of conservatory orders, as sought by the applicants, in constitutional or public interest matters is much higher than in private party cases. We are not satisfied that it has been attained in these applications," said the bench.
Regarding Mr Wetang’ula’s assertion that he was at risk of been summoned by the High Court in the contempt proceedings, the judges said that could not be a reason to suspend the judgement.
"The likelihood of a party being summoned to court to respond to an allegation of contempt of court and the attendant inconvenience or embarrassment that may be so occasioned as a result is not sufficient reason to stay court proceedings," they said.
They also questioned why Mr Wetang'ula was seeking conservatory orders against the judgement when at the same time he was stating that he had complied with the said judgement.
Lawyer Elisha Ongoya strenuously submitted that the Speaker stood the risk of being punished by the trial court if found in contempt.
"The Speaker of the National Assembly could be subjected to undue trauma, ridicule, and embarrassment, which could jeopardize the legitimacy of the proceedings in the National Assembly," said Mr Ongoya.
In addition, that if the High Court's finding that the Speaker’s leadership positions in both the National Assembly and a political party is unconstitutional is left to stand, it could trigger a wave of litigations against other office holders, including the Speaker of the Senate and Speakers of the 47 County Assemblies.
With regard to the argument that the High Court judgment had disrupted the work of the National Assembly, the court said there was no sufficient evidence that the business of the National Assembly was likely to grind to a halt unless the orders sought were granted.
"Even after the contested Speaker’s ruling of February 12, 2025, the National Assembly has continued to discharge its duties, albeit with some acrimony," said the judges.