https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1901

REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT AT MALINDI CONSTITUTIONAL PETITION NO. E004 OF 2025 IN THE MATTER OF: ARTICLES 22,23,28,41,43,48,53 and 258 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: THE ALLEGED CONTRAVETION OF FUNDAMENTAL RIGHTS AND FREEDOMS AND IN THE MATTER OF: SECTIONS 5,17,19,28,41,45 & 49 OF THE EMPLOYMENT ACT, CAP 226. BETWEEN RAYMOND SAFARI NZAI LOICE DAM KENGA CHRISTINE REHEMA SAFARI RAMA KASHURU MWAHEMO PETITIONERS ZAWADI DISCKSON SHIDA JOYCE EDWARD CHARO SELINA KAEMO KAZUNGU JANE MENDZA MUNGA VERSUS BEI INTERNATIONAL LIMITED *(T/A SCORPIO VILLAS MALINDI)* GASTONE AGGAZZANI……………………………. RESPONDENTS **RULING** By a Notice of Motion Application dated 12th November, 2025, the Petitioners seek this Court’s leave to enjoin the NATIONAL SOCIAL SECURITY FUND (NSSF) as the 1st Interested Party, and the SOCIAL HEALTH AUTHORITY (SHA), as the legal successor to the defunct National Health Insurance Fund (NHIF), as the 2nd Interested Party in these proceedings. They further seek an order compelling the above-named entities to serve the complete and certified member contribution statements for all eight (8) Petitioners for the entire duration of their employment with the 1st Respondent, within 14 days of service. Additionally, they seek an order compelling the SHA to retrieve, file, and serve the complete and certified member contribution statements from the records of the defunct NHIF for all eight (8) Petitioners for the entire duration of their employment with the 1st Respondent, within 14 days of service. The Petitioners have also sought an extension of time to file and serve their List of Witnesses and Witness Statements within fourteen (14) days of receipt of the documents sought from the to-be-enjoined Interested Parties. The Application is premised upon the grounds set out on the face thereof and the Supporting Affidavit of RAYMOND SAFARI NZAI. The Petitioners contend that the Respondents filed a response to their petition herein, and upon perusing the same, it has become clear to them that they need to obtain and avail to the Court the official contribution records from both NSSF and the defunct NHIF. Although they have annexed NSSF statements to the affidavit in support of the petition, there are identifiable gaps regarding remittances; thus, the need for certified statements of account from NSSF. It is further contended that, because the petition concerns the denial of medical services, which led to the tragic loss of the 1st Petitioner’s unborn child and the 7th Petitioner's miscarriage, as a result of the National Health Insurance Fund’s failure to act as required, following Respondents’ failure to make the requisite contributions to the Petitioners’ accounts, evidence from the Fund is critical in this matter. They have encountered significant difficulties in obtaining their previous NHIF contribution records, as officials at the new Social Health Authority (SHA) offices have reported their incapacity to retrieve historical data from the systems of the former fund owing to the ongoing audit of the defunct NHIF. Within these proceedings, the National Social Security Fund (NSSF) and the Social Health Authority (SHA) are necessary parties. Their evidence shall not merely be helpful but essential and dispositive of the main issue in dispute. They state that they have not filed their final witness statements as directed by the Court, nor can we fairly proceed with the main petition hearing without the evidence from the entities sought to be enjoined as interested parties. **The Respondent’s Response to the Application** The Respondents oppose the Petitioners’ application on the basis of the grounds set out on the Replying Affidavit of GASTONE IGAZZÄNI. The Respondents contend that the Application is unmeritorious, vexatious, and amounts to a total abuse of the process of this Honourable Court as it does not disclose any cause of action known in law against me. The Application as framed and presented ought to be dismissed with costs to me. The 1st Petitioner herein cannot purport to have authority of his co-petitioners to swear the affidavit on their behalf as no authority has been attached to prove he has been given the alleged authority. He is therefore barred from acting on behalf of the other petitioners as he has no authority. It is further stated that the Applicants have not sufficiently demonstrated and/or laid down sufficient grounds to warrant this Honourable court to join the proposed interested parties in these proceedings. The Applicant has failed to demonstrate that they have any known legal interest and/or stake in the proceedings to be enjoined. Further, it has not been demonstrated that the applicants would suffer prejudice in case of a non- joinder. Additionally, the Petitioners can obtain the documents from the two entities without necessarily enjoining them as parties to this petition. The Applicants have failed to demonstrate the legal effect of the proposed interested parties to their petition, and the relevance of their intended participation in the proceedings. **Analysis and Determination** I have carefully considered the Petitioners’ application, the grounds upon which it is premised and the affidavit in support thereof, and only a single issue emerges for determination, whether the application is meritorious. The 1st limb of the Petitioner’s application seeks leave to enjoin the two proposed interested parties from the proceedings herein. I see the Applicants as contending that the two are in possession of evidence critical to their petition and a fair determination of the petition by this Court. The jurisdiction to enjoin parties to proceedings is not available merely because a litigant believes that the proposed party possesses evidence that may strengthen his or her case. Joinder is a mechanism for bringing before the court persons whose legal rights or obligations are directly implicated in the dispute, or whose presence is necessary to enable the court to effectually and completely adjudicate upon all the issues before it. It is not an evidentiary tool. To permit joinder solely on the ground that the proposed party is in possession of relevant or even crucial evidence would blur the well-established distinction between a litigant and a witness. The law provides adequate mechanisms for compelling attendance and production of documents by persons who are not parties to the proceedings. Those mechanisms, not joinder, are the proper avenue for obtaining evidence. Accordingly, an application for joinder founded exclusively on the assertion that the proposed party possesses material evidence is legally unsubstantiated and ought to be declined. The necessity for evidence does not, without more, translate into a necessity for party status. By reason of the foregoing premises, I hereby decline the Petitioner’s application for joinder. However, for the wider interest of justice and pursuant to the overriding objective of this court, I grant them leave to file witness statements and any further documents. They have 14 days of this ruling to file them. The Respondents shall be at liberty to file and serve a further list of witnesses and witness statements, if need be, within 14 days of service of the Petitioners' said documents. **Read, Signed and Delivered this 24th Day of June 2026.** **OCHARO KEBIRA** **JUDGE**