https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7021

African Centre for Coreective and Preventive Action & 31 others v Google Kenya Limited & 4 others; Ideate Tech Policy Africa Limited (Amicus Curiae) (Petition E068 of 2023) [2026] KEHC 7021 (KLR) (Constitutional and Human Rights) (20 May 2026) (Ruling) Neutral citation: [2026] KEHC 7021 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E068 of 2023 RE Aburili, J May 20, 2026 Between African Centre for Coreective and Preventive Action & 31 others & 31 others Petitioner and Google Kenya Limited 1st Respondent Hon Attorney General 2nd Respondent Cabinet Secretary, Ministry of ICT 3rd Respondent Data Protection Commissioner 4th Respondent Communications Authority of Kenya 5th Respondent and Ideate Tech Policy Africa Limited Amicus Curiae Ruling 1.In the petition dated 8th March, 2023, the petitioners describe the 5th respondent Communications Authority of Kenya as a state department responsible for facilitating the development of the information and communications sector including: cyber security, broadcasting multimedia, telecommunications, electronic commerce, postal and courier services whose address is provided. 2.In the facts giving rise to the filing of the petition, the petitioners accuse the 1st respondent Google Kenya of several breaches of the Constitution and the law, among those breaches are that the 1st respondent has violated rights of android users without their consent by using Artificial Intelligence to track their location and movement through its Global Positioning System (GPS) thereby violating their rights to privacy by disclosing such movements or location of users to third parties. 3.Apart from providing the description of the 5th respondent, nothing is mentioned against it, not even remotely or in the reliefs sought, no orders are sought against it. The petitioners in their petition have not created any nexus between the 1st respondent or any of the respondents and the cause of action albeit this Court is aware of the statutory mandate of the 5th Respondent which is established under section 3 of the Kenya Information and Communications Act. 4.Section 5 of the Act prescribes the objectives and purpose of the Authority as follows:5.Object and purpose of the Commission(1)The object and purpose for which the Commission is established shall be to licence and regulate postal, information and communication services in accordance with the provisions of this Act. 5.The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, commonly referred to as the Mutunga Rules, recognize that parties to a constitutional petition are not joined casually or for decorative purposes. Rule 5 grants the Court power to add a party whose presence is necessary for the effectual and complete determination of the issues in dispute, and equally, to strike out a party who has been improperly joined. 6.The guiding consideration is therefore necessity. A party must be before the Court because there exists a complaint against them, a relief sought from them, or because their participation is necessary for the Court to completely and effectually determine the dispute before it. 7.It is not enough for a petitioner to merely mention or describe a person as a respondent and leave it at that. Constitutional litigation, though guided by principles of substantive justice and flexibility of procedure, is still anchored on pleadings. Parties are entitled to know the case facing them. A respondent ought to discern from the petition and supporting affidavit what wrong is alleged against them, what constitutional infraction they are said to have committed, and what relief is sought against them. 8.This Court has carefully considered the Petition, the supporting affidavit, and the annextures thereto. Apart from being listed and described as the 5th Respondent, there is absolutely no allegation, complaint, accusation, act, omission, decision or constitutional violation attributed to the 5th Respondent. No factual deposition implicates the 5th Respondent in the dispute. Equally, no substantive relief is sought against it. 9.The 5th Respondent which filed a replying affidavit sworn on 12th December, 2025 by Samwel Rambo Deputy Director in charge of litigation and Commercial Services clearly asserted that it is wrongly enjoined to these proceedings as nothing had been alleged against them, even remotely as not even a complaint against the 1st respondent on alleged breach of data privacy was lodged with the 5th respondent. The 5th respondent therefore finds itself in these proceedings where it has been brought before this Court, in a petition alleging violation of rights, it had to instruct counsel who filed a response and is compelled by its mere presence, to participate in litigation without being told what exactly it is alleged to have done wrong. That is not how litigation is intended to work. 10.The 5th respondent having protested being dragged into this petition; it filed the afore stated replying affidavit protesting its presence in these proceedings. The petitioners never filed a rejoinder affidavit explaining the relevance of the 5th respondent. That silence has provoked the 5th respondent to file a formal application dated 10th December, 2025 seeking to be struck out of these proceedings, contending that its joinder is erroneous, misconceived and unnecessary and that it constitutes an abuse of court process. That it is a waste of precious time to have the 5th respondent participate in proceedings where no cause of action is disclosed against them whether expressly or by implication, which participation is prejudicial to the 5th respondent, a public body which is expected to use public resources prudently and efficiently as contemplated in Article 201 of the Constitution. 11.The application by the 5th respondent was served on the petitioners who never filed any response thereto, and despite service with a hearing notice for the hearing of the said application for 7th May 2026, the petitioners never attended court to orally respond to the application and defend the continued presence of the 5th respondent. 12.This court therefore heard the 5th respondent on its application seeking to be struck out of these proceedings and the rest of the respondents were all in agreement with the 5th respondent. They also sought a notice to show cause do issue to the petitioners to show cause why the petition cannot be dismissed. 13.I have considered the application as filed and argued by the 5th respondent’s counsel. I am in agreement with the 5th respondent that parties should never be taken to court just to have their name on a petition. The reason for this is that courts are not places for gathering people to take up space, sit, do nothing 14.Even in ordinary litigation, Order 1 Rule 10(2) of the Civil Procedure Rules regarding the misjoinder of parties provides that:The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added. 15.The test for who constitutes a "necessary party" within the meaning of Order 1 Rule 10(2) has been the subject of extensive judicial pronouncement. A necessary party is one whose presence is indispensable for the court to effectually and completely adjudicate upon and settle all the questions involved in the suit. As was articulated in the Amon v Raphael Tuck & Sons Ltd [1956] 1 All ER 273, a necessary party is one against whom a direct right to relief exists, or without whom an effective decree cannot be issued. 16.In Werrot and Company Ltd & Others v Andrew Douglas Gregory & Others [1998] eKLR, the Court set out two guiding principles to determine the question of who is a necessary party as follows:“For determining the question of who is a necessary party, there are two tests:i.there must be a right to some relief against such a party in respect of the matter involved in the proceeding in question andii.it should not be possible to pass an effective decree in the absence of such a party." 17.The principle that repeatedly guide courts in determining whether a party has been properly joined to proceedings is that a necessary party is one whose presence is required before the Court in order to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit. 18.Similarly, in the above cited case of Amon v Raphael Tuck & Sons Ltd, Devlin J stated that the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled must therefore be one which cannot be effectually and completely settled unless he is a party. 19.However, in Susil Perera v. Kelly [2002] 3 Sri LR 163 at 168, it was held that the objective in adding a party to an action is to enable the court to effectively and completely adjudicate upon and settle all the questions involved in the action and not necessarily to claim relief against him. The fact that no relief has been claimed against the petitioner does not entitle the petitioner to a discharge from the proceedings if his presence is necessary for the effectual determination of all the issues involved in the case. 20.The distinction between this petition and the Susil Perera (supra) case is that in the instant case, Rule 2 of the Mutunga Rules define a respondent to mean a person who is alleged to have denied, violated or infringed or threatened to deny, violate or infringe a right or fundamental freedom. 21.On joinder of parties to constitutional petitions, Rule 5 of the Mutunga Rules provides that where a petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable and to what extent, may be determined as between all parties. 22.Under subrule 5 (d),the Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—(i)order that the name of any party improperly joined, be struck out; and(ii)that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added. 23.Thus, the rule also empowers the court at any stage of the proceedings either upon or without an application and on such terms as may appear just order that the name of any party improperly joined be struck out 24.In the present petition, this Court has not been shown that the presence of the 5th respondent is necessary in order for this court to completely and effectually determine all the issues raised in the petition. Differently put, this Court is unable to identify any issue that cannot be fully determined in the absence of the 5th Respondent. 25.I reiterate my earlier statement that parties should not be added to Court proceedings just to make the petition look good. A respondent should only be brought to court if there is an issue that needs their active and not passive participation. 26.In this case, the 5th respondent is not just any other party, it is enjoined as a main respondent, not as an interested party or amicus curiae. Its continued presence in these proceedings must serve a useful legal purpose such that whereas this Court remains mindful that constitutional petitions should not be defeated by procedural technicalities, that principle cannot be stretched to justify indiscriminate joinder of parties against whom no cause of action is disclosed. 27.Rule 5 of the Mutunga Rules as cited above exists not only to facilitate access to justice, but also to shield parties from unnecessary and unjustified litigation, so that the 5th respondent should not spent all the time in court simply saying that there is no allegation made against it, until the petition is heard and a decision rendered. 28.I am therefore satisfied that the 5th Respondent was improperly joined to these proceedings and that no reasonable cause of action has been disclosed against it. In the end, I find the application dated 10th December, 2025, seeking to strike out the 5th Respondent from these proceedings to be merited. I allow it and proceed to strike out from the petition herein the name of the 5th respondent. 29.I however order that each party bear their own costs of the application for striking out of the 5th respondent. 30.I so order. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF MAY, 2026R.E. ABURILIJUDGE