[2019] KEHC 11482 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT CHUKA

CONSTITUTION AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. 4 OF 2019

IN THE MATTER OF ARTICLES 22(1) OF THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND

FREEDOM UNDER ARTICLES 1 (1) (b), 1 (4)(b), 2(1), 3(1), 10, 19, 20, 21 (1), 22, 23, 27, 28, 40, 27, 232(1) (d) (e) and 258 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF BREACH OF THE RIGHT TO FAIR ADMINISTRATIVE ACTION

AND

IN THE MATTER OF NATIONAL GOVERNMENT CO-ORDINATION ACT, 2013,

AND

IN THE MATTER OF COUNTY GOVERNMENT ACT, 2012

BETWEEN

ISAAC MUGO........................................................................1ST PETITIONER

BERNARD NYAGA...............................................................2ND PETITIONER

EUSTACE MUTURI..............................................................3RD PETITIONER

GEOFFREY K. WAMUGWETWA......................................4TH PETITIONER

JAPHET MICHENI NJERU.................................................5TH PETITIONER

JASPHER M. NJERU.............................................................6TH PETITIONER

SILAS MUTEGI......................................................................7TH PETITIONER

SABASTIAN N. NJOKA........................................................8TH PETITIONER

JOSEPH MBUBA MIRIBA...................................................9TH PETITIONER

JUSTUS N. M'NGITUNG'A................................................10TH PETITIONER

NATHAN KEA IBURIA......................................................11TH PETITIONER

ERASTUS K. NKUNE.........................................................12TH PETITIONER

SAMUEL MUTEGI KIUNGO............................................13TH PETITIONER

JOSEPH MBUBA.................................................................14TH PETITIONER

VERSUS

DR. FRED OKENGO MATIANG'I,

THE CABINET SECRETARY, MINISTRY OF INTERIOR AND

COORDINATION OF NATIONAL GOVERNMENT........1ST RESPONDENT

THE HONOURABLE ATTORNEY GENERAL................2ND RESPONDENT

AND

INDEPENDENT ELECTORAL AND BOUNDARY

COMMISSION OF KENYA..........................................INTERESTED PARTY

R U L I N G

1. Before this court is a Notice of Motion dated 26th June 2019 brought pursuant to Rule 7, 19, and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms, Practice and Procedure Rules) by Albano Mugambi Kiania and 18 others, (the Applicants herein) basically asking this court to enjoin them as interested parties for purposes of the petition filed herein.

2. The grounds upon which this application has been brought are listed as follows:-

i. That the Applicants are residents of Igambang'ombe Sub-County representing 17 out of 18 Sub-Locations in Igambang'ombe Sub-County.

ii. That the Applicants have alleged that the Petitioners save for Petitioner No. 8, 10, 11 and 12 are not residents of Igambang'ombe Sub-County and in their view do not represent the interest, views and wishes of the residents of the said Igambang'ombe Sub-County.

iii. That contrary to the petitioners assertions there was in their view public participation before igambang'ombe Sub-County was created.

iv. That Igambang'ombe Sub-County was created following a request by residents of Igambang'ombe and Mariani Wards owing to their hitherto marginalization of the area while under Meru South Sub-County.

v. That public participation was carried out in all the Sub-Locations of Igambang'ombe Sub-County and all the communities living in the Sub-County who include the Chuka, the Mbeere and Tharaka communities were involved.

vi. That creation of Igambang'ombe Sub-County and the establishment of Sub-County headquarters at Kathwana has brought services closer to the people resident within the Sub-County who previously would travel over 40 Km to Chuka Town to access services.

vii. That the creation of Igambang'ombe Sub-County and the establishment of the headquarters at Kathwana has brought numerous benefits to the Area residents.

viii. That those numerous benefitted will in their view be taken away if the application and the petition are entertained.

ix. That the Applicants wish to be enjoined in this petition to bring out the correct position.

x. That unless the Applicants are enjoined as Interested Parties, pertinent information that is critical to the determination of this petition will be left out and thereby occasion immense prejudice to the residents of Igambang'ombe Sub-County.

3. This application has been supported by the affidavit of Albano Mugambi Kiania sworn on 26th June 2019 where he has deposed that he is swearing the affidavit in support on his own behalf and the 18 other Applicants and majorly reiterated the above listed grounds and I am not going to replicate them because this application was not opposed by parties in this petition. Nonetheless this court must be satisfied that the intended Interested Parties are not only likely to be affected by the decision arrived in this petition but must show that they have useful information which they can add to enrich the determination of the petition.

4. The civil procedure rules do not contain express provision with regard to an application by interested parties to be enjoined in a suit. This issue is often left to the discretion of the court and in exercising that discretion, courts must assess whether a party has sufficient interest in the subject matter in order to be enjoined in a suit. Order 1 Rule 10 (2) of the Civil Procedure Rules provides as follows:-

" The court may at any stage of the proceedings either upon or without the application for either party and on such terms as may appear to the court to be just order that the name of any party ........ whose presence before the court may be necessary in order to enable the court to effectually and completely to adjudicate upon and settle all questions involved in the suit(Emphasis added).

Under Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Fundamental Freedoms) practice and procedure Rules, 2013 the rule provide that a person may with leave of court make an oral or written application to be joined as an Interested Party. The court can also on its own motion join any Interested Party to the proceedings. The Emphasis in the above rules is court's discretion and as observed that discretion can only be exercised in favour of a party who demonstrates not just interest in the matter but go ahead and show what is it that he/she feels can add either to the petition or the answer to the petition that can add value or assistance in adjudication and determination of all the issues before court. In the case of SKOU Estate Ltd & 5 Others -vs- Agricultural Development Corporation and Another [2015] eKLR, Sila Munyao J made useful observations in this regard as follows:-

" 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 tomerely show that he/she has a cursory interest in the subjectmatter 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 demonstration that the presence of such a party will assist in the settlement of the questions involved in the suit, is not enough to entitle one to be enjoined in a suit as Interested Parties. In other words, there needs to be a demonstration that the interest of the person goes further than "merely being affected" by the Judgment or order. It must be shown that the presence is necessary so that issues in the suit may be settled and that if the person is not enjoined, the court may not be fully equipped to settle the questions in the suit or may be handicapped in one way or another. A joinder may also be allowed if the Interested Party has a claim of his own, which in the circumstances of the matter need to be tried or is convenient to be tried alongside the claims of the incumbent plaintiff and defendant. The threshold for joinder of an Interested Party should not be too low or else this is prone to open doors for busybodies to be jointed to proceedings merely to spectate or confuse issues in the matter. Apart from the above, whether or not to enjoin a person as an interested party must be looked at within the context of surrounding circumstances of each particular case.

5. Further to the holding in the above case which I fully share, this court is embolded by the decision of the Supreme Court in the case of Communications Commissions of Kenya & 4 Others - vs- Royal Media Services Ltd & 7 Others [2014] eKLR where the court held as follows:

" In determining whether the Applicant should be admitted into these proceedings as an Interested Party, we are guided by this court's decision in the Mumo Matemo case where the court (at paragraph 14 & 18) held;

" An Interested Party is one who has a stake in the proceeding though he or she is not party to the cause ab initio. He or she is the 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 appear in the proceedings and champions his other cause." Similarly in the case of Meme -vs- 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 questions 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. We ask ourselves the following questions; what is the intended party's stake and relevance in the proceedings and (b) will the intended Interested Party suffer any prejudice if denied joinder."

6. As matters stand in this petition, the petitioners claim that Igambang'ombe Sub-County was created without public participation and without the guidelines and principles under Article 10 (public participation) and 232 (Principles of Public Service). The intended Interested Parties have through the affidavit cited above and supporting documents have shown to have some insight of the factual background of the various areas they have described in Igambang'ombe and the reasons leading upto to the formation of the Sub-County. This background information has not been refuted by any party in this petition. It does appear without going into depth of the issues that the Applicants are in a position to assist this court understand the issues cropping up in this petition.

7. Having reached the above finding, I am not persuaded by the 19th intended Interested Party applicant that it will add any tangible value or assistance in the settlement of the dispute before me. I have gone through the affidavit of Daniel Murungi Mugao and I am not persuaded that the so called Kathwana Investors Forum is a legal entity in the first place. I am also not persuaded that presentation of a memorandum to the President regarding development of Kathwana County Headquarters of Tharaka Nithi County is sufficient to demonstrate that body whatever its form has peculiar interests that cannot be articulated by the residents of Igambang'ombe.

In the end I am satisfied that this application is merited and is allowed only to the extent of 1 to 18th listed parties. I am satisfied that the 1st to 18th Interested Parties not only have a stake in this petition but will add useful information as this court address the issues raised in this petition. Costs shall be in cause.

Dated, signed and delivered at Chuka this 9th day of July, 2019.

R. K. LIMO

JUDGE

10/7/2019

Ruling signed, dated and delivered in the open court in presence of Otieno for Petitioner, Kungu and Obura for Respondent & Kariuki for the intended Interested Party.

R.K. LIMO

JUDGE

10/7/2019