https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10412

Okoiti & another v Director of Public Prosecutions & 10 others (Petition E293 of 2020) [2026] KEHC 10412 (KLR) (Constitutional and Human Rights) (8 July 2026) (Ruling) Neutral citation: [2026] KEHC 10412 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Constitutional and Human Rights Petition E293 of 2020 RE Aburili, J July 8, 2026 IN THE MATTER OF: ARTICLES 22 (1) & (2) (c), 23, 48, 50(1), 165(3), AND 258 (1) & (2) (c) OF THE CONSTITUTION OF KENYA, 2010. AND IN THE MATTER OF: THE ALLEGED CONTRAVENTION AND VIOLATION OF ARTICLES 1(1), 2(1) & (2), 3(1), 10(1) & (2), 27, 35(3), 47 (1), 157 (6) (c), (7), (8) & (11), 159, 201(a), (d), & (e), 206 (1), 221 (6), AND 259(1) OF THE CONSTITUTION OF KENYA, 2010. AND IN THE MATTER OF: THE ALLEGED VIOLATION OF SECTIONS 33 (4) AND 55 OF THE BANKING ACT: SECTIONS 5, 16, 24(B) AND 44 OF THE PROCEEDS OF CRIME AND ANTI-MONEY LAUNDERING ACT: SECTION 89 OF THE CRIMINAL PROCEDURE CODE: AND SECTION 17(2) OF THE PUBLIC FINANCE MANAGEMENT ACT. AND IN THE MATTER OF: THE CONSTITUTIONAL VALIDITY OF SECTIONS 18 AND 45 OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT. AND IN THE MATTER OF: THE ALLEGED ABUSE OF POWER AND THE CONSTITUTIONAL AND LEGAL VALIDITY OF THE DECISION BY MR. NOORDIN MOHAMED HAJI, THE DIRECTOR OF PUBLIC PROSECUTIONS, TO FINE COMMERCIAL BANKS FOR MONEY LAUNDERING. AND IN THE MATTER OF: THE CONSTITUTIONAL AND LEGAL VALIDITY OF PLEA BARGAINS AND/OR DEFERRED PROSECUTION AGREEMENTS REACHED WITHOUT THE SUPERVISION OF A COURT. AND IN THE MATTER OF: THE DOCTRINES OF CHECKS AND BALANCES AND LEGITIMATE EXPECTATIONS. Between Okiya Omtatah Okoiti 1st Petitioner CFE Bernard Muchiri Muchere 2nd Petitioner and The Director of Public Prosecutions 1st Respondent Mr Noordin Mohamed Haji 2nd Respondent The National Assembly 3rd Respondent and The Central Bank of Kenya 1st Interested Party The Financial Reporting Centre 2nd Interested Party The Hon Attorney General 3rd Interested Party Kenya Commercial Bank (Kenya) Limited 4th Interested Party Equity Bank (Kenya) Limited 5th Interested Party Standard Chartered Bank (Kenya) Limited 6th Interested Party Co-operative Bank of Kenya Limited 7th Interested Party Diamond Trust Bank (Kenya) Limited 8th Interested Party Ruling 1.Before the Court for determination is a Notice of Motion dated 24th November 2025 filed under Certificate of Urgency and premised under Articles 20, 22, 50, 23(3), 159(2)(d), 165, and 258 of the Constitution of Kenya, 2010, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and all other enabling provisions of the Law. The Application seeks the following Orders:1.SPENT2.That pending the inter-partes hearing of this application and/or petition this Honourable Court be pleased to admit the amended petition dated 21” November 2025 as having been amended, filed, and served with the leave of the Court.3.That CFE Bernard Muchiri Muchere be admitted as the 2nd Petitioner.4.That consequent to the grant of the prayers above the Honourable Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders, and/or favour the cause of justice.5.That costs be in the cause. 2.The Application is supported by the annexed affidavit of the Petitioner Okiya Omtatah Okoiti sworn on even date and is founded on the grounds on the face of it. 3.The Petitioner avers that the primary purpose of the Application is to amend the Petition to introduce critical, new legal and constitutional issues of significant public interest, which only came to light through the 3rd Respondent’s Replying Affidavit sworn by Samuel Njoroge on 18th November 2024 and are being used to oppose the Petition. 4.It is deposed that the Application seeks to add Bernard Muchiri Muchere as a second petitioner because his involvement is premised on the fact that he is a well-informed, public-spirited Kenyan citizen who will enrich the proceedings and aid the Court in deciding the case on its merits. 5.It is the Petitioner’s assertion that granting these orders falls squarely within the Court’s unfettered jurisdiction and serves the interests of justice, equity, the rule of law and constitutional integrity. Further, that the proposed amendments and joinder are not determinative of the final Petition, meaning the Respondents will suffer no prejudice if they are allowed. 6.It is averred that ultimately, the balance of convenience favours granting the orders, which will provide the Court with a full opportunity to rule on these weighty matters of public interest. 7.In response, only the 4th, 5th and 6th Interested Parties filed their Grounds of Opposition all dated 9th February 2026 opposing the Application. The other parties did not file any responses. 8.The Grounds of Opposition for the 4th, 5th and 6th Interested Parties are identical. They oppose the Application on several grounds being that the Petitioner/Applicant delayed filing the Application despite knowing about the contents of the 3rd Respondent’s Replying Affidavit since 18th November 2024. 9.The 4th, 5th and 6th Interested Parties contend that the Application is an afterthought since the last amendment to the Petition was done on 23rd February 2021; that accordingly, the application has been brought at an advanced stage of the proceedings. They argue against the addition of CFE Bernard Muchiri Muchere as a second petitioner because the claim of him being knowledgeable and public-spirited is vague, unsubstantiated, fails to meet the criteria under the Mutunga Rules and that no evidence is adduced by the Petitioner demonstrating his sufficient interest or prior expression of interest in this case. 10.It is further contended that since the case is already scheduled for the highlighting of written submissions on 15th April 2026, the timing is viewed as a tactic to delay and disrupt the orderly progress and administration of justice. 11.The Application was canvassed by way of written submissions. Submissions 12.The Petitioner/Applicant’s Submissions are dated 24th November 2025. The Petitioner isolates four issues for determination and these are:i.Whether the application is urgent;ii.Whether CFE Bernard Muchiri Muchere should be enjoined to these proceedings;iii.Whether the amended petition should be admitted? andiv.Whether the costs are payable? 13.On the first issue, the Petitioner argues that the application is urgent and emphasizes the court’s discretion in allowing amendments and joinder. It is submitted that the matter is urgent due to the scheduled hearing date of 15th April 2026 and that the Court has broad discretion under Rule 5 of the Mutunga Rules to join necessary parties. 14.On the second issue, the Petitioner submits that the proposed 2nd Petitioner Bernard Muchiri Muchere, is knowledgeable in public finance and will assist the Court. He submits that the Court’s discretion is guided by principles of justice, necessity and avoiding prejudice. That further, joinder of CFE Bernard Muchiri Muchere will benefit the Court because of his expertise and is in the public’s interest. He cites Rule 5(d)(ii) of the Mutunga Rules stating that it allows joinder if the person’s presence is necessary for adjudication. The Petitioner argues that the inclusion of Bernard Muchere will not prejudice the case and reiterates that it is in the public interest. That his joinder is necessary to help the Court determine the case fairly on merits and that the Court should exercise its discretion to enjoin him as a petitioner. 15.On the third issue, the Petitioner requests the Court to admit the amended Petition filed on 21st November 2025 stating that it has been filed, served and is before the Court with leave. It is stated that the Mutunga Rules under Rule 18 permit amendments to pleadings to correct or address new information. That in this case, the amendments are necessary to address issues raised by the Respondents’ affidavits. The cases of Mombasa Cement Limited v Speaker of the National Assembly & 2 others (2016) eKLR and the US Court of Appeal decision in Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995) are cited in support. 16.The Petitioner submits that courts generally favour liberal amendments to ensure justice and substantive merits. That the proposed amendments will not cause prejudice or injustice to the Respondents but aim to clarify the case and address new evidence, ensuring that the Court considers the true issues. He cites the cases of Baker V. Medway Ltd and Cropper V. Smith in support of this proposition. 17.The Petitioner sets out the principles governing amendments of pleadings in the case of AAT Holdings Limited v Diamond Shields International Ltd [2014] eKLR stating that amendments should be allowed if they determine the real question in controversy. He further cites Central Kenya Ltd v. Trust Bank Ltd & 4 Others (Civil Appeal No. 222 of 1998) and submits that amendments should be granted unless they cause injustice or prejudice. That the factors to be considered from the above case include no undue delay, bona fide intention and no introduction of new causes of action. 18.It is submitted that the amendments should facilitate just and fair resolution of the Petition as was held in the cases of St. Patrick’s Hill School Limited v Bank of Africa Kenya Limited [2018] eKLR, Bramwell, LJ in Tildesley v Harper (1878), 10 Ch.D. at p.296 and Budding v. Murdoch (1875) 1 Ch.D at p.42. H 19.The petitioner submits that amendments may be allowed at any stage, provided they do not prejudice the other side and that in the present case, the amendments are justified as they address substantive issues and new evidence. He adds that the Court has wide discretion to add parties at any stage, guided by principles of natural justice and that amendments should be made timely and in good faith. 20.The Petitioner submits that amendments should not introduce new causes of action that are substantially different and that courts favour amendments that clarify or support the original case. He cites the Court of Appeal decision in Ochieng and Others v First National Bank of Chicago Civil Appeal Number 147 of 1991 and Republic vs. District Land Registrar, Uasin-Gishu & Anor (2014) eKLR for exercise of judicial authority and discretion in this regard, emphasizing flexibility and fairness. 21.The petitioner urges that the amendments are consistent with principles of justice, avoiding prejudice and promoting substantive resolution. He adds that the right to a fair trial under Article 50 of the Constitution supports liberal procedural allowances stating that the court can recall witnesses or permit further examination to address the proposed amendments, citing the case of Andrew Ouko v Kenya Commercial Bank Limited & 3 others [2014] eKLR. 22.The petitioner emphasizes that the Court’s discretion should be guided by principles of natural justice, relying on several authorities being: Phillip Chemwolo & Another v Augustine Kubende [1986] eKLR, Central Bank Limited vs Trust Bank Limited (2000) 2EA 365, Joseph Ochieng & 2 others t/a Aquiline Agencies vs First National Bank of Chicago (1995) eKLR, Corner Holiday Inn Limited & Another vs Andrew Kuria Wangunyu [2008] eKLR and Ann Muthoni Karanu vs La Nyavu Gardens Limited NBI ELC 181 of 2014 [2015]eKLR. 23.The petitioner urges the Court to allow the amendments to the Petition and include CFE Bernard Muchiri Muchere as a 2nd Petitioner, emphasizing that justice and public interest favour granting the Application. The 3rd Respondent’s Submissions 24.The 3rd Respondent’s (The National Assembly) submissions are dated 8th June 2026 in which Counsel isolates two issues for determination namely:i.Whether the Applicant/Petitioner can amend his pleadings; andii.Whether the amendments are necessary for the determination of the real issues in dispute. 25.On the first issue, it is submitted that courts have discretion to allow amendments but prioritize justice, efficiency and finality. It is stated that under Rule 19 of the Mutunga Rules, while courts allow amendments, it is not an unbridled right but is subject to the court’s discretion. That the Court of Appeal in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, emphasized that late amendments disrupt the cause list and prejudice the efficient administration of justice. That, accordingly, late amendments are discouraged, especially close to the hearing, to avoid disrupting proceedings. 26.It is submitted that the Petitioner stated that the new issues arose from the 3rd Respondent’s Affidavit filed in November 2024 and he had provided no explanation for the one-year delay. That such a delay of over a year without explanation is viewed as a laches that undermines the Application. 27.On the second issue, Counsel submits that the core issues in the Petition are clear which is the constitutional validity of the DPP’s actions and certain statutes. That the new issues alleged to have arisen could have been addressed earlier even through a further affidavit as was held in Violet Wambui vs. Attorney General & Another [2016] eKLR. That the issues are not fundamental to the core constitutional questions raised in the Petition. 28.It is submitted that the proposed joinder of the proposed 2nd Petitioner is misconceived and prejudicial and that if indeed he is well-informed on the issues at hand, then his participation should be through witness statements, not party status. They submit that allowing amendments at this stage would cause unnecessary delay, prejudice other parties and undermine expeditious conclusion of the case. 29.Counsel for the 3rd Respondent urges the Court to dismiss the Application in its entirety, emphasizing that the existing Petition sufficiently raises the constitutional issues and that granting the amendments would disrupt the scheduled hearing and cause procedural prejudice. The 3rd Interested Party’s Submissions 30.The 3rd Interested Party, the Attorney General filed written submissions dated 4th June 2026 opposing the Application and raising two issues for determination as follows:i.Whether the Director of Public Prosecutions acted within the constitutional and statutory mandate under Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act; andii.Whether Sections 18 and 45 of the Office of the Director of Public Prosecutions Act enjoy presumption of constitutionality. I note that these submissions address the main Petition and not the Application at hand. 31.On the first issue, Counsel submits that the DPP acted entirely within its independent constitutional mandate under Article 157 of the Constitution and the ODPP Act, which gives the office sole authority over criminal proceedings without requiring external consent. Counsel cited Section 23 of the ODPP Act to emphasize the DPP’s discretionary authority on prosecution of criminal cases and states that the said discretion ought to be exercised within the four corners of the Constitution as stated in the case of Thuita Mwangi & 2 Others vs. Ethics and Anti-Corruption Commission & 3 Others [2013] KEHC 1689 (KLR). 32.It is further submitted that the National Prosecution Policy and the Diversion Policy lawfully provide for alternatives to full trials such as diversion and plea bargaining. Citing the case of Okiya Omtatah Okoiti vs. Director of Public Prosecutions 3 Others (Petition No. E266 of 2020); [2022] eKLR, the Attorney General argues that these policies are internal operating manuals for prosecutors rather than statutory instruments; therefore, they are not bound by the legislative requirements of the Statutory Instruments Act. 33.On the second issue, it is submitted that the Petitioner failed to discharge the burden of proof required to overturn the legal presumption of constitutionality enjoyed by statutory legislation. The case of Law Society of Kenya vs Attorney General & another, SC Petition No 4 of 2019; [2019] eKLR is cited in this regard. It is submitted that Section 18 on Recovery of Funds lawfully enables the DPP to take steps to recover amounts or enforce property forfeitures resulting from criminal proceedings. Section 45 on the Prosecutions Fund is also cited and the 3rd Respondent counters the Petitioner’s claim that these funds must go to the Consolidated Fund, noting that Article 206 (1) (a) of the Constitution explicitly allows Parliament to establish separate public funds for specific purposes. Furthermore, it is submitted that the Petitioner provided no evidence of financial mismanagement or compromised independence regarding the fund’s receipt of grants and donations. The 4th, 5th and 6th Interested Parties’ Submissions 34.The 4th, 5th and 6th Interested Parties filed joint submissions dated 8th June 2026. Their legal Counsel urged the Court to dismiss the Application with costs to their clients on the basis that it is bare, vague and has unsubstantiated assertions that do not justify a joinder. Their arguments are reproduced verbatim as hereunder:a.There has been inordinate and unexplained delay in the filing of the present application. The basis of the Application by the Applicant are issues that allegedly arose from the 3rd Respondent's Replying Affidavit, which was sworn on 18th November 2024. Despite being aware of the contents of the said affidavit since that date, the Applicant took no steps whatsoever to seek leave to amend the Petition.b.This Application is an afterthought as the last amendment to the Petition was done on the 23rd February, 2021, which never covered intention to add a co-petitioner.c.The 3rd Respondent's Replying Affidavit does not expressly mention the proposed Petitioner or any person that ought to be a petitioner or/and raise any issue other than, possible lack of standing of the Applicant, therefore negating the need to delay the matter any further.d.The application is frivolous and vexatious, having been brought at a late stage of the proceedings. The matter having already been scheduled for highlighting of written submissions on 15th April 2026, the timing of the application is calculated to disrupt the orderly progress of the case and serves no legitimate purpose.e.The Petitioner/Applicant seeks the addition of a second petitioner, CFE Benard Muchiri Muchere, on the sole basis that he is knowledgeable and public spirited. This bare, vague and unsubstantiated assertion is wholly insufficient to justify joinder, as per Rule 5 (d) (ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (herein referred to as the Mutunga Rules at such an advanced stage of the proceedings.f.The Petitioner/Applicant has failed to demonstrate that the proposed additional Petitioner has any sufficient interest in the subject matter of the petition or that the joinder is necessary or desirable for the just and effective determination of issue before the court. As there is no evidence of an affidavit lodging a claim in first instance nor is there a letter to express interest in the Petition.g.The Application is made in bad faith and amounts to a dilatory tactic being employed by the Applicant to impede the expeditious administration of justice. Analysis and Determination 35.From the forgoing, the main and only issue for my determination is whether the Application is merited and ought to be allowed. The Court will determine whether the CFE Bernard Muchiri Muchere should be enjoined as 2nd Petitioner in this Petition and whether the amended Petition can be admitted as duly filed in Court. 36.The Petitioner argues that the basis for seeking joinder of Mr. Muchere is that he is a well-informed, public-spirited citizen whose inclusion will enrich the proceedings and allow the Court to determine the case on its merits. 37.The 3rd Respondent (The National Assembly) in their submissions urges the Court to dismiss the Petitioner’s Application to amend the pleadings and join a second petitioner. They argue that under Rule 19 of the Mutunga Rules, (should be Rule 18) amendments are discretionary, and the Petitioner’s unexplained one-year delay in acting on the November 2024 affidavit constitutes laches that prejudices the administration of justice. 38.Further, Counsel submits that the proposed amendments are unnecessary because the existing Petition already captures the core constitutional issues and any new points could have been introduced earlier through a further affidavit. 39.Finally, the 3rd Respondent contends that joining a second Petitioner is misconceived arguing that his expertise should be captured via witness statements rather than party status and warns that granting the application at this late stage will cause procedural prejudice and disrupt the scheduled hearing. 40.The 4th, 5th, and 6th Interested Parties in their Grounds of Opposition and Submissions oppose the Petitioner’s Application to add CFE Bernard Muchiri Muchere as a second petitioner because it is an unsubstantiated afterthought and a bad-faith, dilatory tactic designed to disrupt the administration of justice. They point out that the Petitioner waited over a year after receiving the November 2024 Replying Affidavit to file this motion, intentionally bringing it right before the scheduled 15th April 2026, hearing. Furthermore, the banks contend through their Counsel that the Application lacks legal justification under Rule 5(d)(ii) of the Mutunga Rules, as the Petitioner has failed to present an affidavit or formal letter proving that the proposed co-petitioner possesses any sufficient interest in the case or that his joinder is necessary for its determination. 41.I have considered the principles governing joinder of parties and amendment of pleadings in suits. Rule 5 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules -“The Mutunga Rules” – provides as follows: -5.Addition, joinder, substitution and striking out of partiesThe following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—a.Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.b.A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.c.Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.d.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 just—(i)order that the name of any party improperly joined, be struck out; and(ii)that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.e.Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents. 42.The Civil Procedure Rules also supplement the joinder of parties to pleadings as follows:1.Who may be joined as plaintiffs [Order 1, rule 1]All persons may be joined in one suit as plaintiffs in 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 such persons brought separate suits, any common question of law or fact would arise.10.Substitution and addition of parties [Order 1, rule 10](1)Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.(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.(3)..... 43.Order 1 Rule 10 of the Civil Procedure Rules address the addition of a necessary party at any stage of the proceedings. This means that the suit must be alive and must not have been concluded by the delivery of a judgement. In Florence Nafula Ayodi & 5 others v John Tabalya Mukite & another and Benson Girenge Kidiavai & 67 others (applicants/intended interested parties) [2021] eKLR, the Court stated while considering an application for joinder thus: -“ 12.The above notwithstanding, it is common sense to expect that for one to be enjoined in certain proceedings, those proceedings have to be pending before the court. In Leonard Kimeu Mwanthi v Rukaria M’twerandu M’iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties) [2021] eKLR, Justice L. Mbugua stated that:“A party claiming to be enjoined in proceedings must have an interest in the pending litigation…”In other words, the proceedings should still be alive in the court: they could be at the nascent or other stages but must be alive. In Central Kenya Ltd. V. Trust Bank & 4 Others, CA NO. 222 OF 1998 the Court, in discussing the issue of joinder of parties, held that “We would however agree with the respondent that Order 1 Rule (10)(2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court.” 44.I have also considered the determination of the Supreme Court in Francis Karioko Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR) (28 January 2016) (Ruling) where the apex Court considered whether it could allow the joinder of an Interested Party to the suit and 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: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. 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. 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. 45.Similarly, the Supreme Court in Attorney General v Ndii & 73 others (Petition 12 (E016) of 2020) [2021] KESC 17 (KLR) (9 November 2021) (Ruling) held thus: -“ 2.The guiding principles applicable in determining an application to be joined as an interested party in were:a.One had to move the court by way of a formal application. Joinder of a party was not as of right, but was at the discretion of the court; hence, sufficient grounds had to be laid before the court, on the basis of the following elements:i.The personal interest or stake that the party had in the matter had to be set out in the application. The interest had to be clearly identifiable and had to be proximate enough, to stand apart from anything that was merely peripheral.ii.The prejudice to be suffered by the intended interested party in case of non-joinder, had to also be demonstrated to the satisfaction of the court. It had to also be clearly outlined and not something remote.iii.A party’s application had to set out the case and/or submissions it intended to make before the court and demonstrate the relevance of those submissions. It should also demonstrate that those submissions were not merely a replication of what the other parties would be making before the court.” 46.From the above, although the Supreme Court was addressing the joinder of an interested party and amicus curiae in the above cases, I find that the same principles apply herein where the Petitioner seeks the joinder of a second Petitioner. In other words, a party seeking to be successfully enjoined as a Petitioner must: -a.Demonstrate a direct stake by explicitly stating a clearly identifiable, proximate personal interest or stake in the matter which must be more than merely peripheral.b.The Applicant must satisfy the court by clearly outlining the specific, immediate prejudice they will suffer if they are not joined, rather than relying on remote or speculative outcomes.c.The Application must set out the specific arguments and submissions the party intends to make, demonstrating both their relevance and how they differ from the existing parties’ submissions to avoid mere replication. 47.I note that at the time that this Application for joinder and amendment was filed, all parties had already filed and exchanged their submissions for the main Petition and the final hearing was scheduled for 15th April 2026. 48.Joinder of a petitioner is not automatic and must be justified by a demonstrable nexus between the proposed party and the issues in dispute. 49.In the instant proceedings, I have considered the basis of the Petitioner’s case. The Petitioner’s amended Petition challenges the actions of the Director of Public Prosecutions (DPP) regarding investigations conducted into the second National Youth Service scandal (NYS II). The Petitioner alleges that the DPP hijacked the Judiciary’s authority by entering into out-of-court Deferred Prosecution Agreements (DPAs) and fining five commercial banks who appear herein as the 4th to 8th Interested Parties, Kshs. 392.5 million to protect their executives from criminal prosecution. 50.The legal principles enunciated in the cases that I have cited above dictate that an applicant must set out a clearly identifiable, proximate personal interest that stands apart from something merely peripheral. The Respondents and the Interested parties point out that the Petitioner’s sole justification for joining Bernard is the bare, vague and unsubstantiated assertion that he is a knowledgeable and public-spirited citizen. 51.I have perused the application and note that there is no evidence of an affidavit lodging sworn by him seeking to be enjoined to these proceedings or a formal letter from Bernard demonstrating a personal, direct stake in the subject matter of the Petition. He has also not filed any affidavit seeking to demonstrate to the Court that his submissions or contributions will be invaluable for the Court’s determination of the petition on merit. This Court is equally unable to establish a nexus between him and the substantive issues raised in the Petition. 52.I further find that allegations of being an expert on a subject matter is not reason enough to be enjoined as a Petitioner. The law requires that an applicant must show that their proposed submissions are relevant and do not merely replicate what is already before the Court. 53.The National Assembly, the 3rd Respondent argues that the existing Petition already sufficiently raises the core constitutional issues and assert that if Bernard is simply well-informed on the matter, his expertise should be introduced via witness statements rather than granting him full party status. I find this argument convincing and agree that indeed, the proposed 2nd Petitioner’s alleged valuable expertise can be availed to the Court through other means as opposed to joinder. 54.I find that seeking to enjoin the said party is unnecessary because it has occasioned unnecessary delay in the expedient disposal of this petition, noting that the matter was already slated for highlighting of submissions on 15th April 2026. 55.Thirdly, to qualify for joinder, an applicant must demonstrate specific, immediate prejudice that would be suffered if they are left out. No such remote or concrete prejudice has been outlined or established regarding the proposed second Petitioner’s exclusion from the case. In the same breath I find that there was an inordinate delay in filing the Application before the Court. 56.On amendment, Rule 18 of the Mutunga Rules provides that a party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the Court. 57.Leave to amend pleadings is in the discretion of the Court. In Mombasa Cement Limited v Speaker of the National Assembly & 2 others [2016] eKLR - Petition 177 of 2015, Louis Onguto J (as he then was) stated as follows regarding amendment of pleadings in Constitutional petitions:“The general rule when it comes to amendments of pleadings is that amendments ought to be freely allowed so long as they do not occasion any prejudice to the party facing them. The test whether or not to allow amendments is now relatively clear.In the case of Ann Muthoni Karanu vs La Nyavu Gardens Limited NBI ELC 181 of 2014 [2015]eKLR, I stated as follows with regard to amendment of pleadings:[9]…The test for amendment of pleadings was perfectly put in Cobbold vs. Greenwich LBC 9th August, 1999 (unreported decision): referred to in the notes to the White Book (Civil Procedure 2003 Edn) Vol. 1. At paragraph 17.35. Peter Gibson LJ is stated to have said:“The overriding objective ( of the Civil Procedure Rules) is that the court should deal with cases justly, that includes, so far as is practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party caused by the amendment can be compensated for in costs, and the public interest in the administration of justice is not significantly harmed”[10]Also referred to and applied in the case of Maguire –v- Molin [2002] 4 All ER 325, 326, the above truly ought to be the appropriate and composite test for amendments of pleadings. I shall say no more on the test save to add that locally the same test was adopted and approved in the case of Central Kenya Ltd –v- Trust Bank Ltd [2002]2 EA 365. The Court of Appeal held that amendment of pleadings and joinder of parties was aimed at allowing a litigant to plead the whole of the claim he was entitled to make in respect of his cause of action and that a party should always be allowed to make such amendments as are necessary for determining the real issues in controversy or avoiding a multiplicity of suits. The court then went on to state that the amendments or joinder would be allowed provided(i)there had been no undue delay,(ii)that no vested interest or accrued right was affected and(iii)no injustice or prejudice would be occasioned to the other side that could not be properly compensated for in costs.(11)Notwithstanding the Court of Appeal’s prolific holding and approach, it is apparent that the test is as was stated in Cobbold (supra) and the overriding consideration was whether the amendments were necessary for the determination of the suit and whether the delay was likely to prejudice the opposing party beyond compensation in costs. Perhaps, I may also add that going by the Cobbold test as expounded in Central Kenya Ltd –v- Trust Bank Ltd (ibid) the powers to order or allow amendments or joinder of parties is discretionary and very wide.” [emphasis in the original]I am still duly guided and persuaded. The same test and principles though made in the context of ordinary civil litigation ,apply with even force to constitutional petitions: see The Institute for Social Accountability & Another vs. Parliament of Kenya & Two Others HCCP No 71 of 2013 [2014]eKLR where the court stated as follows :“[17]The issue of amendment of pleadings is not novel and has been the subject of numerous court decisions, the common denominator being that as a general principle, courts will normally allow amendment of pleadings at any stage of the proceedings if it can be done without occasioning injustice or prejudice to the other party and which prejudice can be compensated by an award of costs. See generally Eastern Bakery v Castelino (1958) EA 461 ; Ochieng and Others v First National Bank Of Chicago CA Civil Appeal Number 149 of 1991, Kenyatta National Hospital v Kenya Commercial Bank Ltd & Another [2003] 2 EA.”The Respondents in the instant case state that the application was brought after an unreasonable delay. The Petitioner thinks otherwise. Even though the time lost prior to the filing of a application for amendment is relevant, the guiding line ought really be the stage at which the proceedings stand at the time the application is filed and heard. This is so as to enable the court to consider whether the respondent may be unduly prejudiced. The mere fact of delay alone, unless the delay is inordinate, should not be the sole determinant. The nature of the intended amendment and whether it is necessary for purposes of determining all issues in controversy are some of the other factors to be taken into consideration.” 58.It is clear from Rule 18 of the Mutunga Rules and the above exposition of the law, that this court has discretion to allow amendment of pleadings, with leave of the court at any stage of the proceedings. The only rider to the exercise of the discretion is that the court must be satisfied that the amendment can be done without occasioning injustice or prejudice to the other party. 59.An amendment will also be allowed if the prejudice if any that may be occasioned on the other party may be can be compensated by an award of costs. In the circumstances of this case, the applicant effected amendment to his petition a few days to the scheduled hearing of the petition by way of highlighting of written submissions without first obtaining the leave of court as contemplated by Rule 18 of the Mutunga Rules. He therefore seeks leave of this court to regularise the said amendments. 60.The Petitioner also claims that there are new issues that have been raised by the Respondents and Interested Parties which he ought to address in the amended petition. However, from the record, the replying affidavits were filed in 2024 and this is 2026 and the main reason for amending the petition further is to introduce the second petitioner whom this Court has rejected in the succeeding section. 61.My view of this is that the amendment sought is not only an afterthought having been sought more than a year after the new grounds allegedly arose and right before the scheduled hearing date of 15th April 2026. It is also intended to delay further the hearing and determination of this petition which is now a bout two months to turn six years since it was filed in this Court. 62.Moreover, the Petitioner has always had an opportunity to seek leave of the Court to file supplementary and further supplementary submissions to address the allegedly new issues, which he did not utilize. The allegedly new issues raised by the respondents in their replying affidavits must not necessarily be addressed through amending the Petition. What the Petitioner is doing is to take the Court back and forth on the pleadings thereby further stalling the hearing and eventual determination of the petition. That in my view is an abuse of court process and adding the backlog which Kenyans lament over from time to time despite more resources being thrust into the Court. 63.In the end, this Court finds that the proposed 2nd Petitioner’s interest does not render him indispensable to the resolution of the issues already before this Court. The Petition as framed can be determined without his participation and joinder of a second petitioner who has not demonstrated any interest in this petition by way of an affidavit or statement. The proposed 2nd Petitioner retains the constitutional right to institute his own petition should he wish to ventilate his grievances which he has not demonstrated to be willing to do so. Therefore, his presence is not necessary for the effectual determination of the issues in the Petition before this Court. 64.I further find that the prayer for amendment is not merited for the reasons given above. 65.The Notice of motion Application dated 24th November 2025 is found to be devoid of merit and the same is hereby dismissed. 66.Any party who has not filed a response to the main petition as amended is given seven days of today to file and serve a response together with submission upon which the petitioner will have seven days to file and serve a supplementary affidavit together with further submissions. highlighting of submissions shall be on 17th November, 2026. 67.I make no orders as to costs, these being public interest litigation. 68.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF JULY, 2026R.E. ABURILIJUDGE