[2024] WAT 1201 (KLR)

Mwenda v Nairobi City County & 3 others (Tribunal Case 2 of 2023) [2024] WAT 1201 (KLR) (9 February 2024) (Ruling)

Neutral citation: [2024] WAT 1201 (KLR)

Republic of Kenya

In the Water Appeals Tribunal

Tribunal Case 2 of 2023

B Ochoi, Chair

February 9, 2024

Between

Dr.Kirinya Mwenda

Applicant

and

Nairobi City County

1st Respondent

Runda Water Limited & 2 others

2nd Respondent

Ruling

Background 1. The application before the tribunal is a Notice of Motion Application dated 29th September 2023 brought under the provisions of Order 1 Rule 3 & 10(2), of the Civil Procedure rules & Section 3A of the Civil Procedure Act and all the enabling provisions of the law. The application seeks the following orders;1. That leave be granted to enjoin Mimosa Neighborhood Association as an interested party to these proceedings.2. That the costs of this application be provided for.

2. The application is based on the following grounds set out on the face of the application;a.The 2nd respondent was incorporated for the purpose of supplying water services to theresidents of Runda Estate in Nairobi countyb.The 3rd defendant was incorporated for the purpose of supplying water and sewerage servicesto the residents of Nairobi county.c.That the proposed interested party comprises residents of Runda Estate Nairobi who are all supplied with water by the 2nd defendant.d.That the members of the proposed interested party are aggrieved by the actions of the 2nd defendant who has been levying illegal and unlawful charges on the water bills.e.That under the Water Act, the 3rd defendant has jurisdiction to regulate and supervise the dealings and workings of the 2nd defendant, however they have failed, refused and or ignored to act on the matter.f.That the issue arising in this case and the outcome thereof will ultimately affect all theresidents within Runda Estate including the proposed interested party hence the request to be joined.g.That it is in the interest of Justice that the application be allowed.

3. The application is further supported by an affidavit sworn on 29th September 2023 by Rael Lubasiwho stated that she was the current Chair of Mimosa Neighborhood Association in which she avers literally word by word to the grounds of the application above. She swore a supplementary affidaviton 15th November 2023 and attached a copy of certificate of incorporation for Mimosa Neighborhood Association.

3. The Application was opposed by the 2nd respondent Runda Water Limited who opposed the application on the following grounds as set out in the grounds of opposition dated 18th October 2023;1. That the application is misconceived, bad in law and fatally defective.2. That the applicant has not demonstrated the proposed interested part’s stake in this suit and thusdoes not qualify as an interested party within the threshold set by the Supreme court in Human Rights Alliance Vs Mumo Matemo and 5 Others.3. That the proposed interested party is an unknown entity. They are neither incorporated under thecompanies act nor registered within the provisions of the societies Act, Cap 108 Laws of Kenya 4. That no certificate of registration or incorporation is annexed or referred to in the supporting affidavit of Dr. Rael Lubasi which would mean that the proposed interested party lacks capacity to sue or be sued.

5. That the prayers sought cannot be granted as they offend Order 1 Rule 8 of the Civil Procedure rules and the general rule that an unincorporated entity cannot sue por be sued 6. That prayer 1 in the aforementioned application is for leave to enjoin MIMOSA Neighbourhood Association as an interested party in the proceedings.

7. That the Applicant has sought to enjoin the party to the suit, which essentially means to havethem barred from joining the suit, yet they are not a party to the suit.

8. That the application is an abuse of the courts time and deserves only an order of dismissal withcosta payable by the Applicant.

5. The 2nd respondent in addition to the above grounds filed a replying affidavit to the applicationdated 18th October 2023 sworn by Joseph Bollo , the 2nd respondents Operations Manager the averments of which basically reiterated the grounds of objection.

6. The record shows that the 3rd respondent did not file any documents in opposition to theapplication and that the applicant had filed another application the same day to join the Water Services Regulatory Board. Though the 2nd respondent filed grounds of opposition the same was not opposed when the Applicant refereed to it and was allowed by the court.

7. The court gave directions that the current application be canvassed by way of writtensubmissions.

The Applicant’s Contention. 5. The Applicant contends that Mimosa Neighborhood Association is duly registered under thesocieties Act and that the members of the Association are the residents of Runda Estate and Runda Mimosa Estate who are supplied with water by the 2nd respondent and the members of the interested party are aggrieved by the by the actions by the 2nd respondent who has been levying illegal and unlawful charges on the water bills and as an association it resonates with the plaintiffs case herein .

6. The applicant contends that the 2nd respondent supplies water on a contract which has givenmonopoly to the 2nd respondent to supply water and it is totally illegal and unlawful and the outcome of the case will affect all the residents of Runda Estate and Runda Mimosa Estate including the intended interested party who has legal interest and duty in the proceedings.

7. The Applicant relied on several authorities dealing with the principles to be followed inapplications for joinder of parties. The cases cited included Francis Karioko Muruatetu Vs Republic & 5 Others petition number 15 as consolidated with No. 16 of 2013[2016] eKLR, Communications Commission of Kenya and 4 others Vs Royal Media services Limited & 7 others petition No. 15 of 2014[2014] eKLR., AMM Vs JMN HC Civil Suit No.9a of 2017, Skov Estate Limited & 5 others Vs Agricultural Development corporation and another [2015] eKLR, Marigat Group Ranch & 3 others vs Wesley Chepkoimet & 19 others [2014]eKLR

Respondents Contention 11. The 2nd respondent identified two issues for determinationi.Whether Mimosa Neighborhood can be joined as an interested partyii.Whether the current application is an abuse of the court process

12. The 2nd respondent contends that the elements to that determine whether a a party can bejoined as an interested party have been settled in different case and that the same had not been satisfied and relied on the case of Francis Karioki Muruatetu & another vs Republic and 5 others [2016]eKLR where the supreme court set out the said elements.

13. The 2nd respondent further submits that the determining basis for joinder of a party would bethe establishment of a link between the substratum or subject matter of the proceedings at hand and a direct interest by and prejudice to a person seeking leave of the court to be enjoined as an interested party and that the same had not been established.

14. The 2nd respondent contends that the current suit is commercial in nature between theapplicant and the respondent and the proposed interested parties interests are not apparent.

15. The 2nd respondent further contends that authority to act is an integral consideration before anorganization that purports to represent many individuals proceeds to file a suit in court and the applicant herein had not done so the respondent relied on the case of Bugerere Coffee Growers Ltd Vs Sebaduka & Another which was cited by the High court in Kenya in Royal Tulia Estate Ltd vs Davidson Matano & 3 Others [2012] eKLR.

16. The 2nd respondent further contends that that the current application is an abuse of the courtprocess as the same is a deliberate abuse of judicial process as the applicant had filed multiple actions on the same subject matter against the same respondents and that the current application is an extension of such action aimed at further delaying the current matter.

Analysis and Detemination. 12. I have read the application, affidavit in support of the application, replying affidavit, theiraccompanying annexures and the grounds of opposition to the application. I have also considered and weighed the rival submissions in this application and the issue for determination is whether the application herein is merited or is an abuse of the process of the court. The law governing addition and substitution of parties to suits is provided in Order 1 rule 3 and Order 10 of the Civil procedure Rules.

13. Order 1, rule3 provides as follows;“All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.”

12. Order 10 rule (2) on the other hand provides;“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.”

12. The court therefore has powers to grant the orders sought by the applicant. In Trusted Society ofHuman Rights Alliance v Mumo Matemo & 5 others [2015] eKLR, the supreme court of Kenya described an interested party as follows;‘Consequently, 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……... “

12. The same court in Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR setout the elements or requirements for a successful application for joinder as an interested party as follows;“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 bedemonstrated 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 makebefore 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.”

22. The applicant herein confirmed that Mimosa Neighborhood Association is a duly registeredAssociation and the certificate of registration was attached to the application. Rael Lubasi who swore the affidavit in support of the application deponed that the members of the proposed interested party are aggrieved by the actions of the 2nd defendant who has been levying unlawful and illegal charges. There was nothing attached by the applicant to show the alleged illegal and unlawful charges from any of the members and evidence that a complaint had ever been made by the members of the said association and for how long the charges had been levied. Most critically Rael Lubasi has not demonstrated in the application that she has the authority of the members of the Association to have them included in the case as parties. I agree with the decision in the Bugerere Coffee Growers Limited case that in such cases a resolution or resolutions have to be passed by members and recorded in the minutes authorizing the proceedings in the case. In the absence of the same it is my finding that the Applicant has no authority to institute the matter on behalf of the Association.

22. Rael Lubasi also claims to be the current Chairperson of Mimosa Neighborhood Association but there was no evidence produced to that effect to show the members and officials and the dates of election.

22. The upshot of the above is that the personal interest or stake that Mimosa NeighborhoodAssociation has in the matter has not identifiable and the prejudice likely to be suffered incase the application is not allowed has not been demonstrated. The application therefore fails and is dismissed.

23. On whether the application is an abuse of the court process, it was contended by the respondentthat the applicant had instituted a multiplicity of suits on the same subject matter, against the same opponent on the same issue. My take is that the said argument can only stand if the respondent is raising a P.O to the main suit. The same cannot apply in an application like this as the intended interested party as never been a party in the suits cited. The argument by the respondent that the application is an abuse of the court process thus fails but nevertheless as stated above the application as a whole is dismissed for the reasons stated above.

24. The applicant will pay costs of the application to the 2nd respondent.

SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF FEBRUARY 2024HON B.M OCHOICHAIRMANSIGNED BY: HON.BERNARD OCHOI