[2020] KEHC 1654 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAKAMEGA

PETITION NO. 9 OF 2020

FELIX SAYIA...............................................................................................................PETITIONER

VERSUS

THE COUNTY GOVERNMENT OF VIHIGA.......................................................RESPONDENT

AND

THE COUNTY ASSEMBLY OF VIHIGA...............................................1ST INTERESTED PARTY

THE FEDERATION OF WOMEN LAWYERS IN KENYA..................2ND INTERESTED PARTY

RULING

1. I am tasked with determining a preliminary objection, comprised in a notice, dated 21st October 2020, raised by Aggrey Musiega, who describes himself in the proceedings as 3rd interested party, challenging the jurisdiction of this court. The objection also raises the issue that the petition herein is res judicataand sub judice, as there are similar petitions filed before other courts in Nairobi and Kisumu, among other issues.

2. I have noted, from the record, that as at the time of the filing of the petition, Aggrey Musiega, was not a party to this cause, as he was not named as such in the petition, neither was he joined subsequently by an order of the court. He came into the matter by way of filing a memorandum of appearance, simultaneously with the notice of preliminary objection, on 21st October 2020.

3. Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines an interested party as follows:

““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 …"

4. Rule 7 of the same Rules provides how a person can get to be joined in constitutional proceedings as an interested party. The said Rule says:

“7. Interested party

(1) A person, with leave of the Court, may make an oral or written application to be joined as an interested party.

(2) A court may on its own motion join any interested party to the proceedings before it.”

5. In Francis Karioko Muruatetu & Another vs. Republic & 5 Others [2016] eKLR, the Supreme Court, in a ruling dated 28th January 2016, laid down the principles applicable to the joinder of interested parties as follows:

“[37] From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party:

One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements: -

i. 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 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. Lastly, a party must, in its application, set out the case and/or submissions 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.”

(Also SeeKensalt Limited vs. Water Resources Management Authority[2018] eKLR)

6. From the material that I have referred to above, it should be clear that for one to be added or joined as an interested party in a constitutional cause, they must first seek leave of court, either orally or in writing. The court can also, on its own motion, order the joinder of an interested party.

7. Aggrey Musiega, who claims to be 3rd interested party herein, did not apply to the court to be added or joined to the proceedings as such, neither did the court, on its own motion, make him an interested party. He just jumped into the fray, by throwing his documents into the record, before, first of all, getting permission of the court to come on board. He is, therefore, not properly in these proceedings. He is a total stranger, with no capacity to file any documents herein. The fact that he is mentioned in the petition, and the petition is, in fact, all about him, does not make him a party in the cause, so long as he is not named as such in the entitlement of the petitioner. He can only come in as an interested party, and the pathway to getting into the cause as such is Rule 7, which I have recited above.

8. In the circumstances, the notice of preliminary objection, that the said Aggrey Musiega filed on 21st October 2020, bearing an even date, is a nullity, and so are all the other filings by the said person. That being the case, the preliminary objection raised is not available for consideration, since the notice raising it is has to suffer the fate of being struck out, which I hereby proceed to do. See Serve In Love Africa Trust (Sila Trust) vs. County Government of Uasin Gishu [2016] eKLR.

9. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS20TH DAY OF NOVEMBER 2020

W MUSYOKA

JUDGE