[2025] KEHC 6858 (KLR)

Kahia v Director of Criminal Investigation & 2 others; African Gas and Oil Limited (AGOL) (Intended Interested Party) (Miscellaneous Criminal Application E466 of 2024) [2025] KEHC 6858 (KLR) (Crim) (21 May 2025) (Ruling)

Neutral citation: [2025] KEHC 6858 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E466 of 2024

AM Muteti, J

May 21, 2025

Between

Osman Ahmed Kahia

Applicant

and

Director of Criminal Investigation

1st Respondent

Inspector General of Police

2nd Respondent

Director of Public Prosecution

3rd Respondent

and

African Gas and Oil Limited (AGOL)

Intended Interested Party

Ruling

1. The applicant Osman Ahmed Kahia filed a Notice of Motion under certificate of urgency seeking to be admitted to Anticipatory bail following what he termed as a targeted harassment by the respondents and threat of imminent arrest.

2. The application is still pending and African Gas and Oil Ltd has applied to be enjoined in this matter as an interested party.

3. The intended interested party vide a Notice of Motion premised on the provisions of Article 47 and 159 of the Constitution of Kenya contends that the applicant has made misleading, scandalous and defamatory allegations against them in the application thus the need to be enjoined in order for them to assist the court in its duty of doing justice in the matter.

4. The intended interested party argues that the applicant despite adversely mentioning them did not have the courtesy to introduce them in the proceedings as a main party.

5. It is for that reason that they crave leave to be enjoined. The Intended Interested party contends that they will be able to inform the court of the position of the civil cases alluded to by the applicant.

6. The Intended Interested party though admits that there are no reliefs claimed against them but their ardent belief is that their participation in the proceedings will assist the court in making a just determination of the issues raised by the applicant.

7. The applicant opposed the joinder of the Intended Interested Party but the respondents did not object.

8. The position taken by the respondents is that the decision whether to allow an intended Interested party to join proceedings is purely a discretionary matter for the court and if in the court’s view that would assist the court then the court may proceed to admit them.

9. The applicant is opposed to the joinder of the Intended Interested party insisting that the joinder would delay the hearing of the main application.

10. According to the applicant is that the Intended Interested party is not a necessary party considering the orders that the applicant is seeking thus they should not be allowed to join the proceedings.

11. The applicant has however, stated that they have letters that emanate from the 3rd respondent indicating that the matter can be resolved by the Environment and Land court.

12. The Court has considered the rival submission of counsel for the intended Interested Party and the applicant.

13. It is abundantly clear that the two parties have a serious axe to grind over the property in issue.

14. The ownership of that property is not what this court is called upon to determine in the instant application.

15. This court also noted that there are a number of civil disputes touching on the properties and which according to the applicant have everything to do with the troubles he is currently facing with the police.

16. In paragraph 15 of the Applicant’s affidavit, the applicant has adversely mentioned Africa Gas & Oil Ltd (AGOL) as having sought the assistance of the Director of Operations at Police headquarters to enable them forcefully access his land and remove the applicant therefrom.

17. The allegation is serious and requires an answer from Africa Gas and Oil Ltd.

18. The Intended Interested Party needs to explain to this court whether they have instigated any illegal and or unlawful action against the applicant as he alleges.

19. The law under Article 47 of the Constitution emphasizes fair administrative Action by all those that determine the rights of parties.

20. The applicant’s rights to liberty protection of the law and to property are alleged to be under threat of infringement.

21. Articles 27,39 and 40 of the Constitution are not mere aspirations but entitlements to every citizen. The rights must be promoted, protected and upheld.

22. Any threat to freedom of movement must be frowned upon by this court and so is any threat to the right to property.

23. The court must therefore get to the bottom of the matters raised by parties after all the necessary facts are laid bare before this court.

24. In an application for joinder, the court is enjoined to consider whether the intending party is:-a.a necessary partyb.a proper partyc.In the case of a defendant whether there is a relief flowing from that defendant to the plaintiff (in a civil matter)d.The presence of the party is necessary to enable the court to adjudicate the matter fully and settle all the questions.

25. The application by the intended interested party is anchored on Constitutional provisions although within a Miscellaneous Criminal application. It is a proceeding sui generis since the Criminal Procedure code has no provisions for joinder of an interested party. The court recognizes that in all criminal proceeding parties are basically the State, the accused person and the victim who takes the position of a witness but can seek to participate in any proceeding that would affect their interest in the criminal matter.

26. See Joseph Lendrie Waswa Vs Rep Petition No. 23 of 2019 [2020] eKLR

27. Applications for joinder are more common in the realm of Civil practice thus the jurisprudence on the subject is well established on the basis of Order 1 Rule 10(2) of the Civil Procedure Rules which provides that a court may, either on application made by a party or without, allow joinder of a party whose presence it considers to be necessary in a suit.

28. The full text of the Rule provides as follows:“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.”

29. The power of a court to order joinder is one based on its discretion. The discretion must however be exercised judiciously and in accordance with the parameters set out in Order 1 Rule 10(2) of the Civil Procedure Rules. This position was ably elucidated in Civicon Limited v. Kivuwatt Limited and 2 Others [2015] eKLR as follows:“Again the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”

30. The instant application being a constitutionally anchored motion, the court would in the greater interests of doing justice to the parties consider whether the intended interested party should be enjoined in proceedings as a necessary party. This is purely so because the court is not sitting to determine a criminal matter per se but a bill of rights issues presented in the form of a Notice of Motion within a Miscellaneous criminal application. A unique proceeding in this courts view and which must be entertained in the spirit of Article 23 of the Constitution. In Joseph Njau Kingori v Robert Maina Chege & 3 Others [2002] eKLR the court distilled the guiding principles in considering whether to allow joinder of an intending party as follows:i.He must be a necessary party.ii.He must be a proper party.iii.In the case of the defendant there must be a relief flowing from that defendant to the plaintiff.iv.The ultimate order or decree cannot be enforced without his presence in the matter.v.His presence is necessary to enable the court effectively and completely adjudicate upon and settle all questions involved in the suit.”

31. The Intended Interested party has come under the banner of a necessary party whose presence is necessary to enable the court adjudicate the matter fully.

32. It is the finding of this court that if indeed the intended Interested party, as alleged, may have instigated a malicious complaint against the applicant leading to the abuse of police powers, that issue must be fully canvassed before this court in order for the court to render itself definitively on the issues raised in the main application by the applicant. The applicant is therefore deemed by this court to be a necessary party.

33. The court is therefore inclined to allow the joinder of the intended interested party since the anticipatory bail application affects the issue of fundamental rights and freedoms which this court is bound under Articles 20,21,22 and 23 of the Constitution to Promote, uphold and enforce.

34. The intended Interested party is thus admitted as a necessary party to shed light on all the allegations that touch on them before this court can fully settle the matter.

35. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF MAY 2025. A. M. MUTETIJUDGEIn the Presence of:-Kiptoo: Court AssistantMwachofi for the ApplicantMs Ogega for the 3rd RespondentMunene for the 1st & 2nd Respondents