Maulid v ODPP & 2 others (Petition E003 of 2026) [2026] KEHC 7014 (KLR) (20 May 2026) (Ruling)

Maulid v ODPP & 2 others (Petition E003 of 2026) [2026] KEHC 7014 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEHC 7014 (KLR) Republic of Kenya In the High Court at Garissa Petition E003 of 2026 JL Tamar, J May 20, 2026 Between Abdullahi Maulid Petitioner and ODPP Respondent and Fatuma Abdullahrahman Mohamed Applicant and Inspector General of Police Respondent Ruling 1.By notice of motion dated 17th march 2026, brought under the provisions of Article 22, 23, 50 and 159 of the Constitution of Kenya, Rule 3, 5(d), 7 and 15 of the Constitution (protections of Rights and Fundamental Freedoms) Practice and Procedure rules, 2013, Section 52 and 193A of the Criminal Procedure Code and all other enabling provisions of the Law, the applicant seek leave to be enjoined in these proceedings as an interested party and upon the grant of such order, the applicant be at liberty to participate in the proceedings by filing affidavits and such other pleadings. The application is premised on the grounds that the applicant is the complainant in a criminal matter the subject of the present petition where the petitioner moved the court to restrain the respondents from arresting or instituting criminal proceedings against him. Further, that the orders sought by the petitioner affects the applicant’s right to access justice and have her complaint investigated and determined in accordance with the law. That unless she is allowed to participate in these proceedings, the court may determine the petition without affording her an opportunity to be heard. 2.The 1st and 2nd respondent are not opposed to the application for joinder and filed no affidavit or submissions thereto. However, the petitioner is strongly opposed to the joinder application and filed a replying affidavit stating that the petition challenges the constitutionality and propriety of the decision of the respondents to investigate, arrest and prosecute and not the question of ownership of the property in dispute which is pending before the ELC court. The petitioner contend that the respondents are seized of the complaint giving rise to the intended prosecution as by law required and the involvement of the applicant is of little or no significance at all. Further that the applicant has not shown a clear and identifiable interest in the proceedings, that is not adequately represented by the existing parties. Fundamentally, allowing the applicant into the proceedings would unnecessarily introduce issues relating to ownership of the suit property, thereby shifting the focus away from constitutional issues before the court. 3.The applicant filed submissions dated 10th April 2026 stating that the request to participate in the proceedings, is not to ventilate ownership of land but to protect her constitutional right to access justice and ensure that her complaint is lawfully investigated and determined. That the order to halt arrest, investigations and prosecution arising from her complaint if allowed would have the effect of extinguishing her complaint without affording her an opportunity to be heard. It is submitted that the petition and the orders sought directly affect the applicant for the reason that she it is on the basis of her complaint that the intended criminal process is initiated. Her role in the matter is therefore central and not peripheral. 4.On whether the respondents adequately represent the interest of the applicant, it is urged that the applicant personal interest as a victim and complainant is distinct and cannot be fully articulated by the respondents whose mandate is to prosecute offences and undertake investigations on behalf of the state respectively and therefore excluding the applicant from the proceedings would amount to shutting out the complainant contrary to Article 48 and 50 of the constitution. 5.It is also the applicant contention that immediate and substantial injustice would be suffered if conservatory orders are granted without affording her a hearing over a complaint lodged by her. That the pending matter before the ELC wound not cure any prejudice as those proceedings involve proprietary right while the present petition concerns the validity of the criminal process and in any event, the two processes are distinct and mutually exclusive under Section 193A of the Criminal Procedure Code. In conclusion, the applicant submit that her participation will be limited to demonstrating the factual foundation and the legitimacy of the complaint that triggered the impugned investigations. 6.The petitioner on the other hand object to the applicant’s participation in this matter arguing that the dispute between the interested party and the petitioner relates to ownership and possession of the suit property subject of proceedings before the Environment and Land Court in ELC E016 of 2025 which is pending determination. That notwithstanding the existence of the said matter, the respondents have proceeded to initiate criminal process against the petitioner which forms the basis of this petition. The petitioner referred to a number of authorities on who an interested party is and the circumstances for admission as an interested party. It is urged that the applicant has not met the threshold for joinder, as her interest is purely private and proprietary related which is pending before the ELC court. Further the interest of the applicant is fully represented by the respondents who have taken up and are advancing the complaint forming the basis of the intended prosecution.The issue for determination is;Whether the Applicant should be enjoined as an Interested Party in the proceedings herein. 7.The statutory underpinning for joinder as an interesting party is anchored in order 1 rule 10(2) of the Civil Procedure Rules 2010 which states as follows: -i.“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 or settle all questions involved in the suit, be added.” 8.Further Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines who an interested party is;i.“Interested party” means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation; 9.The Supreme Court of Kenya in Communications Commission of Kenya and 4 Others …Vs… Royal Media Services Limited & 7 Others Petition No. 15 OF [2014] eKLR relied on its earlier decision in the MUMO MATEMO case where the Court in defining who an Interested Party is, and held as follows:i.“An interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause. Similarly, in the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that:i.Joinder of a person because his presence will result in the complete settlement of all the question involved in the proceedings;ii.Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;iii.Joinder to prevent a likely course of proliferated litigation.i.We ask ourselves the following questions:a.what is the intended party’s state and relevance in the proceedings andb.will the intended interested party suffer any prejudice if denied joinder.” 10.It is therefore important to determine whether the applicant herein has satisfied the statutory requirement to be enjoyed in these proceedings. 11.The law on joinder of interested parties to suits has been settled by the Supreme Court of Kenya in the case of Francis K. Muruatetu and another v. Republic & 5 others (2016) eKLR, referred by the applicant. The court set out identifiable key elements for consideration in an application for joinder as an Interested Party. The elements are as follows: -i. “a.The Personal interest or stake that the party has in the matter must be set out in the application. The Interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.ii. b.The prejudice to be suffered by the intended Interested Party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.iii. c.Lastly, a party must, in its application, set out the case and/or submission it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.” 12.In Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] eKLR Justice Munyao Sila in dealing with the issue of an Interested Party seeking to be enjoined in a suit stated as follows;i.“In my view, for one to convince the court that he/she needs to be enjoined to the suit as interested party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A judgment or order in most cases does not only affect the litigants in the matter. It does have ramifications for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in a suit as interested party. 13.It is therefore important to determine whether the applicant herein has satisfied the statutory requirement to be enjoyed in these proceedings. 14.The court would allow an applicant to be joined as an interested party in pending or ongoing proceedings primarily if by so doing, the court would be able to effectively settle the issue(s) in controversy and if the interested party has an identifiable claim of his own to protect alongside that of the respondents. The applicant main contention is that as a party whose complaint triggered investigations, possible arrest and prosecution of the petitioner over criminal conduct involving the disputed property, her participation in this matter is crucial and her interest identifiable separate from those that would be advanced by the respondents. I do not think so. The main issue that the court would be called to interrogate in the petition, is whether the intended arrest and prosecution of the petitioner based on the materials collecting in investigations is contrary to the constitution and amounts to abuse of the prosecutorial power by the 1st respondents. The issue(s) are within the constitutional and statutory mandate of the 1st respondent with necessary expertise to deal with the matter conclusively. 15.It is trite law that the proper complainant in criminal proceedings is the Republic. This principle was enunciated in Roy Richard Elirema & Another vs Republic [2003] KECA 165(KLR) where the Court of Appeal stated that the complainant in this context has been interpreted to mean the republic in whose name all criminal prosecutions are brought, and not the victim of the crime who is merely a chief witness on behalf of the Republic. 16.Further, in Republic vs Ethics & Anti-Corruption Commission, Director of Public Prosecution & Chief Magistrates’ Anti-Corruption Court Malindi Law Court ex parte Stephen Sanga Barawa [2017] KEHC 7049 (KLR) the court reasoned that the DPP is the representative and mouthpiece of the complainant. The court explained as follows: -i.Article 157 of the Constitution gives powers to the DPP to institute and undertake criminal proceedings against any person before any court other than a court martial in respect of any offence alleged to have been committed. The DPP also has powers to take over and continue criminal proceedings commenced in any court other than a court martial that have been instituted or undertaken by another person or authority with the authority of the person or authority. The gist of the provisions of the Constitution and the statuses in relation to the matter before this court is that the DPP is the complainant and not the applicant. Precedents too have given expressions to this school of thought.ii.The prosecutor represents the republic who is the complainant in whose name all criminal proceedings are brought. A person who reports a crime may seek to withdraw his complaint but the DPP, in whose name the criminal proceedings began are to be sustained, must be a part of the withdrawal process. 17.The participation of the applicant in the present constitutional petition seeking to a stop a possible arrest, further investigation and prosecution of the petitioner is not necessary, particularly where as in this case the complainant had supplied investigative materials that convinced the respondents to undertake the intended action against the petitioner. The applicant has not demonstrated in my view that her interest in this petition will not be addressed adequately by respondents in whose mandate the investigation and prosecution repose. The material before the court in this petition is sufficient to make a determination one way or the other without appearing to be conducting a mini trial. 18.I do not see any prejudice that the applicant would suffer as I am of the view that in public law matters the constituent institutions established by the constitution and the statutes are better suited to advance public interest unless it be shown that those institutions are unwilling or unable discharge their duties. 19.Consequently therefore, the application for joinder dated 17th march 2026 is declined. 20.The application dated 25th February 2026 shall now proceed to inter-parties hearing. DATED, SIGNED AND DELIVERED AT GARISSA THIS 20TH DAY OF MAY 2026JOHN T LOLWATANJUDGE