[2021] KEHC 8204 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 115 OF 2019

JOHN HARUN MWAU...............................................................APPLICANT

VERSUS

SIMONE HAYSOM............................................................ 1ST DEFENDANT

PETER GASTROW.............................................................2ND DEFENDANT

MARK SHAW.....................................................................3RD DEFENDANT

AND

THE HONOURABLE ATTORNEY GENERAL......1ST INTERESTED PARTY

THE INSPECTOR GENERAL...............................2ND INTERESTED PARTY

THE NATIONAL POLICE SERVICE....................3RD INTERESTED PARTY

RULING

The application before court is dated 13th July, 2020 by the defendants/applicants who are seeking the following orders;

1. Spent

2. The names of the 1st, 2nd and 3rd interested parties be struck out as parties improperly joined to the suit, and paragraph 106 of the plaint consequently be struck off.

3. The costs of this application be awarded against the plaintiff.

The interested parties filed a replying affidavit in opposition to the application sworn by Peter Njeru, an officer of the National Police Service, dated 14th September, 2020. The plaintiff filed his sworn replying affidavit dated 17th September, 2020. When the matter came up for directions, parties agreed to have the application dispensed with by way of written submissions. The defendants/applicants filed their submissions dated 30th November, 2020 while the plaintiff filed his submission on 18th January, 2021. The interested parties filed two sets of submissions dated 8th January, 2021 and 18th January, 2021 respectively.

Applicants’ submissions

The application is brought under the provisions of Order 1 Rule 10(2) and Orders 51 Rules 3 and 4 of the Civil Procedure Rules, 2010, Sections 1A and 3A of the Civil Procedure Act, Cap 21 and all other enabling provisions of the law.

The plaintiff avers that the report allege that some of the investigations on the allegations made by the defendants were done by 2nd and 3rd interested parties. Therefore, the presence of the 2nd and 3rd interested parties will assist the court in resolving the issue of truth of the allegations against the plaintiff by providing evidence and material necessary.

The plaintiff argues that the Constitution of Kenya, 2010 under Articles 33(3), 35(2), 20(1), 21(1) gives the interested parties constitutional obligation to promote and fulfill the plaintiff’s right as protected under the Bill of Rights.

The defendants/applicants submits that the interested parties being creatures of the constitution tasked with constitutional and statutory mandate to serve the Republic of Kenya and all its citizens and residents cannot be said to have a legal interest in the plaintiff’s personal action against the defendants.

The defendants /applicants state that according to the Black’s Law Dictionary, 8th Edition, an Interested Party has been defined as:

‘a party who has recognizable stake and therefore a standing in a matter.’

Similarly, Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 as:

‘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.’

The defendants’/applicants’ have also referred to the Supreme Court case of Francis Karioki Muruatetu & Another v Republic & 5 Others [2016] eKLR where the court referred to the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLRdefined an interested party as”...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...”

It is the defendants’/applicants’ submission that the participation of the interested parties herein is contrary to the provisions of the Civil Procedure Rules, 2010 for two reasons. First, they were joined from the commencement of the action without being subjected to the legal test as to the propriety of their joinder and in capacities not anticipated or permitted by the rules. Secondly, they do not have any right to or interest in the reliefs sought by the plaintiff. The defendants/applicants further submit that the inclusion in a suit should be sought by an interested party orally or in writing after which the court will use its discretion to decide whether to admit or not. The court can also on its own motion admit an interested party to a suit to enable it completely adjudicate over the issues before it. The defendants/applicants have relied on the case of Communication Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLRwhere the supreme Court of Kenya held as follows;

[22]In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:

“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the causeab 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…”

[23]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 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.”

The defendants’/applicants have also relied on the ruling by Mativo J. in Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLRwhere it was held that;

“The test is not whether the joinder of the person proposed to be added as an interested party would be according to or against the wishes of the petitioner or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the petitioner. It is whether the intended interested party has an identifiable stake,ora legal interestorduty in the proceedings.

In determining whether or not an applicant has a legal interest in the subject matter of an action sufficient to entitle him to be joined as an interested party the true test lies not so much in an analysis of what are the constituents of the applicant's rights, but rather in what would be the result on the subject-matter of the action if those rights could be established.

It is a mandate of the court that as far as possible all matters in controversy between the parties should be completely and finally determined and all multiplicities of legal proceedings concerning any of the matters be avoided. In this regard, it would be appropriate and in the interest of justice that all matters touching and concerning the subject matter of the suit in the case at hand be determined finally and completely to avoid litigating over the same matters again.”

Reliance has also been placed on the Muruatetu Case, where the Supreme Court of Kenya outlined the requisite elements to being joined as an interested party to a suit when it held thus;

“[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.”

It is submitted that the striking out of the interested parties’ names for misjoinder cannot result in a multiplicity of suits and further if the interested parties consider themselves defamed by the contents of research documents they should file a separate suit to have their claim determined.

The defendants/applicants submit that the issues before court should only be framed from the controversy between the principal parties and relied on the principles laid down by the Supreme Court decision in the case of Methodist Church in Kenya v Mohammed Fugicha & 3 others [2019] eKLRwhere it held, citing the Murautetu case;

“Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the Court.”

It is the defendants/applicants submissions that the court should remove the interested parties from the suit as they are disinterested and unconcerned parties whose participation would only serve to delay the fair trial and raise the costs of litigation to the prejudice of the defendants/applicants. The defendants/applicants further urge the court to expunge from the record all pleadings filed on behalf of the interested parties and strike out paragraphs 106 to 109 of the plaint.

i) Plaintiff’s submissions:

The plaintiff/respondent is in agreement that there exist no dispute with regards to who an interested party is. However, he submit that the joinder of an interested party ab initio is not fatal. The plaintiff has relied on the Court decision in Gladwell Otieno (Suing on her own behalf and as the Administrator of The Estate of the Late Virginia Wambui Otieno) & 2 Others v Standard Group Limited & Another [2017] eKLR, where the court held that;

“10. In the case at hand, what is stated in the publications in question is that the 1st Plaintiff, Gladwell Otieno is the founding Executive Director of the Applicant (AfriCOG). The rest of the article is about the alleged defilement which is the subject of the suit herein. The details of the alleged defilement do not touch on the Applicant in any way. The Applicant’s affidavit in support of the application has not pointed out how it has been adversely mentioned in the said publication which involves a matter of a very personal nature between the persons mentioned therein. Mention of the 1st Plaintiff being a founding Executive Director of the Applicant appears remote and is not proximate to the issue of defilement. There is no affidavit evidence or draft pleading to assist this court to discern the Applicant’s identifiable stake or legal interest herein or what prejudice the Applicant will suffer if not enjoined in the proceedings.”

The plaintiff has distinguished the present case from the Gladwell Case in that the three interested parties have been adversely mentioned in the publication complained off as set out in paragraph 25 and 37 of Peter Njeru’s affidavit. Additionally, the 3rd intersted party has filed a replying affidavit setting out their interests and legal duty necessitating their participation in the proceedings, including the prejudice they are likely to suffer.

The plaintiff further submits that the participartion of the interested parties have been given necessity when the defendants admitted that the issues of crimes published are of intense public interest and that they had a duty to publish the same to Kenyans. It is the plaintiff’s submission that the participation of the interested parties who have acknowledged being in possession of some raw data emanating from their investigation, would promote the fulfilment of his rights under Article 33(3) and Article 35 (2) of the Constitution as read together with Article 21 of the Constitution in relation to the duties and obligations of the interested parties.

The plaintiff submits that the participation of the interested party in the proceedings will assist the court in determining the matters herein completely and hence avoid future litigation and re-litigation over the contents of the research document.

It is the plaintiff/respondent submission that the interested parties have demonstrated their legal mandate and that the defendants/applicants have adversely mentioned them in the research document and the pleadings before court. This therefore necessitates the participation of interested parties in the proceedings.

The plaintiff/respondent contends that since the defendants/applicants have raised the issue of public interest in their statement of defence, this therefore makes the joinder of the interested parties a necessity.

ii) Interested Parties’ Submissions

The interested parties on their part submit that the factors to be considered by court in reaching its discreational decision to confirm joinder, adding or striking out a party in a suit should be guided by the following factors:

i)Whether the joinder/non joinder will assist the court in the effective and effectual determination of all questions arising in the suit.

ii)Whether the party sought to be joined or removed has any identifiable stake, legal interest or duty in the proceedings.

iii)Whether the joinder/non-joinder is likely to prejudice the said party.

The above position was stated in the case of Justin Kithinji Nderi & 2 others v Director of Public Prosecutions & Another; Njiiru Micheni Nthiga (Interested Party) [2020] eKLRwhere the court relied on the case of SKOV Estate Limited & 5 Others v Agricultural Development Corporation & Anotherwhere the J. Munyao held that;

“18. 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. 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 of that person is necessary, so that the 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 intended interested party has a claim of his own, which in the circumstances of the matter, needs to be tried, or is convenient to be tried alongside the claims of the incumbent plaintiff and defendant...”

The Interested Parties have submitted that their presence in the proceedings from the commencement of the suit does not violate the Civil Procedure Rules, 2010 and that an Interested Party can join the proceedings without being subjected to the legal test through a formal application. The interested parties rely on the provisions of Order 1 Rule 10 (2) of the Civil Procedure Rules that state;

2) 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.

The interested parties have also relied on the case of Habiba W. Ramadhan & 7 others v Mary Njeri Gitiba (2017) eKLR; Nairobi High Court ELC Case No. 119 of 2014 the Court stated as follows;

“As already observed by the Court, under Order 1 Rule 10(2) the Court has discretion to order joinder of any party to a suit at any stage of the proceedings so long as the presence of that party before the Court is necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions in dispute....”

The interested parties submit that their participation in the suit will assist the court in effectively and efficiently determining the issue of truth raised in the suit. This they submit is because they hold some of the relevant raw data information and material referred to in the research paper. The interested parties further submit that the allegation by the defendants that the interested parties ought not have been joined is merely a question of technicality and procedure and should therefore be dismssed in line with Article 159 (2) (d) of the Constitution.

On the assertion that they do not have any right to or interest in the reliefs sought by the plaintiff, the interested parties submit that they have a legal duty as concerns the subject matter of the proceedings and they are therefore entitled to participate. The interested parties contend that the legal duty referred to is provided for under Section 24 of the National Police Service Act, where the 2nd and 3rd interested parties have statutory duty to investigate crimes, maintain law and order, collection of criminal intelligence, prevention and detection of crime, apprehension of offenders, enforcement of all laws and regulations with which it is charged and perfomance of any other duties that may be prescribed by the Inspector- General under the Act or any other written law from time to time. While Section 35 of the National Police Service Actempowers the 2rd and 3rd interested parties with the legal duty to investigate serious crimes of drug trafficking, money laundering and other crimes. It is the interested parties submissions that they have an interest in the outcome of the suit which is based on the research document suggesting that the failure, involvement and aqcuiescence of the law enforcement in Kenya is fueling the spread of drugs in the region. It is the interested parties submissions that the defendants have raised the defence of fair comment and therefore the truth or otherwise of the defendants factual statements and findings in the research document will be an issue for determination before this court. Subsequently, if the court finds that the research document statements and findings were true, then the interested parties have a legal duty over the said statements alleging commission of crimes. The interested parties have relied on the case of Aharub Ebrahim Khatiri v Nelson Marwa [2017] eKLR, where the High Court held that;

As interested parties, the applicants need only demonstrate interest in the subject of the suit or in other relevant matter affecting the suit... I think an issue may properly be taken to be a “question involved in the suit” ...I find therefore that the applicants are “necessary parties” within the meaning of order 1 rule 10 of the Civil Procedure Rules.”

The interested party submit that the defendants/applicants have made adverse allegations against the 3rd party in their research document as set out in the unrebutted paragraphs 20,21,22,24,25,26,29,30,31,33,37,39,40,41 and 42 of the replying affidavit of Peter Njeru. Similarly, the plaintiff has also made averments touching on the intersted parties in paragraph 32, 34,37,83,89,90,98,107,108 and 109 of the plaint. Consequently, they should be allowed to champion their own cause as refusal to admit them will be in violation of Articles 48 and 50(1) of the Constitution on their rights to access to justice and the right to be heard. On this point the interested parties relied on the case of Yusuf Abdi Adan & Another v Hussein Ahmed Farah & 3 others, Civil Case No. 100 of 2016 (Nairobi)where the court defined an interested party in the following terms;

“As an interested party is one who has a direct interest or stake in the case though he or she was not a party to the cause ab initio. That is one who will be affected by the decision of the court when it is made either way or a person who feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings to champion his or her cause.”

Lastly, the Interested parties submit that the prayer by the defendants/applicants that the court strikes out paragraph 107 to 109 of the plaint is an afterthought as their paryer in the defence was for stricking out only paragraph 106. Secondly, paragraph 106 sets out the role of the 1st interested party in realation to the proccedings.

Analysis

The issue for determination in this applications is:-

Whether the 1st, 2nd and 3rd Interested Parties were properly enjoined to the suit and are necessary parties to the suit or they should be struck out.

The Black’s Law Dictionary, 9th Edition at page 1232 defines an interested party as;

"A party who has a recognizable stake (and therefore standing) in the matter"

While the Civil Procedure Act, Cap 21 is silent on the concept of “interested party",Order 41 Rule 5 of the Civil Procedure Rules 2010, make a reference to the term “interested party” and states;

“The court either on its own motion or on application by any interested party, remove a receiver appointed pursuant to this order on such terms as it thinks fit"

The ‘Mutunga Rules’, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, Legal Notice No. 117 of 2013, defines an interested party as;

“A person or an entity that has an identifiable stake or legal interest or duty in the proceedings and may not be directly involved in the litigation”

The Rules further at Part II Clause 7 provides that, a person with leave of the Court may make an oral or written application to be joined as an interested party or the Court, on its own motion, may also join an interested party to the proceedings before it.

From the court record, it is evident that there was no leave of court sought by the Interested Party to be enjoined in this suit. It is the plaintiff/respondent who joined the interested party to these proceedings suo motto. I do agree with the submissions of the Defendants/Applicants that the participation of the interested parties herein from the commencement of the suit without leave of court is to some extent unprocedural. However, i associate with the reasoning of Mwongo J in Kenya Ports Authority V Kenya Power&Lighting Co. Limited (2012)eKLR that procedural technicality is a lapse in form that does not go to the root of the suit. The 1st, 2nd and 3rd interested parties have not objected to being enjoined in the suit and they have even filed Replying Affidavits in opposition. Further, recent trends have shown that interested parties can be enjoined when the suit is filing in court and are part of the original pleadings.

The Black’s Law Dictionary, 9th Edition defines a “Necessary Party” as being

“A party who being closely connected to a lawsuit should be included in the case if feasible but whose absence will not require dismissal of proceedings”

In Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR, Mativo. J. explained when an interested party ought to be enjoined in a proceeding. He stated: -

“A person is legally interested in the proceedings only if he can say that it may lead to a result that will affect him legally that is by curtailing his legal rights. In determining whether or not an applicant has a legal interest in the subject matter of an action sufficient to entitle him to be joined as an interested party the true test lies not so much in an analysis of what are the constituents of the applicant's rights, but rather in what would be the result on the subject-matter of the action if those rights could be established. It is apparent that a party claiming to be enjoined in proceedings must have an interest in the pending litigation, but the interest must be legal, identifiableor demonstrate a duty”.

In the case ofCommunications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLRthe Supreme Court of Kenya held that;

“[22]In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:

“[An] interested party is one who has a stake in the proceedings, though he or she was not party to the causeab 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…”

[23]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 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.”

The issue before court is a research document titled ‘Drug Traffickin/The Heroin Coast: A political economy along the eastern African Seaboard” on serious criminal activities in Kenya relating to narcotic drug trafficking. At clause 106 to clause 109 of the plaint introduces the Interested Parties into the suit; their constitutional and statutory mandate in relation to these proceedings.

Paragraph 106 of the plaint introduces the interested parties and explain the reasons why they were enjoined. At this stage I need not go into the merits or demerits as to why these interested parties were enjoined. The plaintiff explains in detail why he felt it necessary to enjoin these three parties. In my view, being an interested party is more important to the court than summoning a party to attend and testify as a witness. The interested party will participate in the proceedings and assist the court with crucial information that may help the court in determining the dispute at hand. A witness may decide not to attend and if he attends, he/she may decide to give evidence depending on his/her personal opinion on the matter. Such opinion may be totally different from the position taken by an institution such as the three interested parties. Although this is a civil dispute, I see no harm in having the three interested parties participate in the proceedings. Should the interested party’s participation be seen to be an impediment to the hearing and determination of the case, the court has powers under Rule l order 10(2) of the civil procedure Rules to strike out the names of the interested parties and stop them from participating in the case.

The three interested parties were enjoined in the plaint. It is not unusual to have interested parties enjoined in court cases at the initial stage. However, the normal and established practice has been for such an interested party to apply to be enjoined in the matter and show what interest he/she has in the case. The dispute herein relates to several comments against the interested parties. The interested parties have indicated that they wish to participate in the matter. There is no evidence that thus far the interested parties have contributed towards any delay in the determination of the case. The pleadings include issues involving the police. For instance, paragraph 98 which produces part of the impugned investigation report state that a police officer was gunned down by a contingent of 70 police officers after the victim was branded as a rogue police officer. Generally, the plaintiff’s claim touches on the interested parties. I see no prejudice that will be suffered by the Defendants if the interested parties are left to participate in the case. There is no allegation that the interested parties are out to assist the plaintiff in prosecuting his case.

The interested parties have also confirmed that their participation in the suit will assist the court in effectively and efficiently determining the issue of truth raised in the suit. This they submit is because they hold some of the relevant raw data information and material referred to in the research paper.

I am satisfied that the interested parties have made out a good case for being enjoined in the suit herein, bearing in mind the provisions of Article 157 (11) of the Constitution of Kenya and being guided by the authorities above.

In the end the application dated 13th July, 2020 lacks merit and is hereby dismissed.

Costs should follow the outcome of the case.

Dated and Signed at Nairobi this 11thday of March, 2021

…………………………

S. CHITEMBWE

JUDGE