Court of Appeal deals setback to National Assembly in majority party dispute

National Assembly Speaker Moses Wetang'ula/FILE

The National Assembly has suffered a setback after the Court of Appeal declined to suspend a decision that found National Assembly Speaker Moses Wetangula acted unlawfully in declaring the Kenya Kwanza coalition as the majority party in the House.

Justices Daniel Musinga, Mumbi Ngugi, and Francis Tuiyot said there was no evidence that the decision of the High Court has disrupted the work of the National Assembly. If anything, the court observed that the sittings at the assembly were still ongoing even after the High Court's decision.

"There is no sufficient evidence before us that the business of the National Assembly is likely to grind to a halt unless the orders sought are granted," said the appellate judges.

They took note of Wetangula's ruling delivered on February 12, whose effect was that the National Assembly continued to discharge its duties, "albeit with acrimony." 

The National Assembly, in persuading the court to grant an order of stay, contended that the High Court decision disrupted operations in the National Assembly, particularly in the formation of key committees.

They named the House business committee, which plays a critical role in managing the legislative agenda and ensuring the smooth functioning of parliamentary business.

It was further contended that without clarity on the majority and minority parties and their respective leadership, the formation of at least 17 key committees, including the Budget and Appropriation Committee and the Public Accounts Committee, has become impossible.

They reiterated that the High Court judgement has occasioned confusion, uncertainty, and a standoff in the National Assembly.

The applicants also contended that there is a threat of contempt of court proceedings being instituted against the Speaker of the National Assembly following the High Court decision that he cannot hold the dual positions of Speaker and still be leader of Ford Kenya Party. 

However, the respondents, among them Kenneth Njagi, who had filed the case at the High Court, said the only reason Parliament was pursuing the applications for the stay of the High Court judgement was because of the determination that touched on the dual roles of the Speaker.

On this, the appellate judges said the proper forum for probing the Speaker's compliance or non-compliance of the orders of the High Court lies before the same court where contempt of court proceedings are likely to be instituted.

Justices Jairus Ngaah, John Chigiti and Lawrence Mugambi, on February 7, declared that the question as to which party or coalition is the majority in the National Assembly in the 13th parliament was determined by the sovereign will of Kenyan voters during the August 9, 2022 general elections.

The bench also annulled Wetangula's decision made on October 6, 2022, that declared Kenya Kwanza as the Majority in the House.

The judges in their decision said Wetangula acted unreasonably when he assigned to the Kenya Kwanza alliance the 14 members of the Azimio coalition who had resigned from the outfit.

Wetangula had claimed that several Azimio members had formally written to his office to denounce their association with the Raila Odinga-led political outfit.

These members are 14 MPs drawn from four parties, namely the United Democratic Movement (UDM), Movement for Democracy and Growth (MDG), Maendeleo Chap Chap (MCC), and Pamoja African Alliance (PAA). But the bench said when he signed an affidavit in court to oppose the case, he didn't provide any evidence of any post-election agreements involving the said parties and Kenya Kwanza coalition.

Wetangula had claimed that the parties signed and deposited with the registrar of political parties the agreements. But the judges reiterated that in the absence of any proof, the decision by Wetang'ula cannot be allowed to stand.

"Even Kimani Ichung'wah, who said he tabled the agreements in Parliament during a debate on the issue of majority and minority, has not exhibited any such agreement in court," the bench said.