[2022] KEHC 17099 (KLR)

Okumu v Director of Public Prosecutions & another; Makau (Intended Interested Party) (Constitutional Petition E269 of 2021) [2022] KEHC 17099 (KLR) (Constitutional and Human Rights) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17099 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition E269 of 2021

AC Mrima, J

December 16, 2022

Between

Mark Ademba Okumu

Petitioner

and

Director of Public Prosecutions

1st Respondent

Directorate of Criminal Investigations

2nd Respondent

and

Patrick Mwangangi Makau

Intended Interested Party

Ruling

1. The Petition in this matter is in respect to the manner in which the Petitioner dealt with a motor vehicle registration number KBJ 2XXC make Toyota Harrier.

2. Given the nature of the events in issue, Patrick Mwangangi Makau, the registered owner of the motor vehicle applied to be enjoined in the proceedings as an interested party.

3. The Petitioner was, however, opposed to the joinder. The Respondents were not opposed to the application.

4. This ruling is, hence, in respect of the said joinder application.

The Application: 5. The Intended Interested Party filed two applications seeking the joinder. They are: -a.Notice of Motion dated August 30, 2021. b.Chamber Summons dated August 30, 2021.

6. As the applications are similar, they shall be determined at once. The applications were supported by affidavits, written submissions and Lists of Authorities.

7. In opposition to the applications, the Petitioner filed a Replying Affidavit. He did not file any written submissions.

Analysis: 8. In view of the nature of the applications, the response thereto and the submissions on record, this Court will not, at this point, necessarily reproduce verbatim the respective parties’ dispositions and submissions. However, the Court has carefully perused all the documents so far filed in this matter and will take the contents thereof into account in the course of this discussion.

9. I will begin this engagement with a look at the law on joinder of interested parties.

10. The starting point is the Constitution. Rule 2 of The Constitution}} of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (hereinafter referred to as ‘the Mutunga Rules’) define an ‘interested party’ to mean: -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;

11. The Supreme Court in Trusted Society of Human Rights v Mumo Matemu & 5 others[2014] eKLR observed as follows: -… 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. Later, the Supreme Court further delimited the legal principles applicable in joinder applications. That was in Petition No 1 of 2017 Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura (as Amicus Curiae) [2017] eKLR and in Petition No 15 as consolidated with Petition No 16 of 2013 Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR.

13. In Francis Karioki Muruatetu & Another v Republic & 5 others Petition 15 as consolidated with 16 of 2013 [2016] eKLR the Supreme Court identified the following applicable conditions, and, stated as follows: -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.

14. Apart from the three principles developed by the Supreme Court, Rule 2 of the Mutunga Rules clarifies that a party seeking to be enjoined as an interested party ought to demonstrate that he/she/it has an identifiable stake or legal interest or duty in the proceedings before the Court.

15. There is no dispute that the Intended Interested Party is the registered owner of the subject motor vehicle. The Petition centers on the manner the Petitioner dealt with the motor vehicle culminating with the Intended Interested Party lodging a criminal complaint.

16. In that case, the Intended Interested Party cannot be separated from the matter. He is at the heart of it. He has immense identifiable stake in his motor vehicle.

17. Having carefully considered the applications and the objection, it can be easily discerned that the objection is not merited. The request for joinder is sound and the Intended Interested Party ought to be heard in these proceedings.

Disposition: 18. Flowing from the above, the following final orders do hereby issue: -a.Patrick Mwangangi Makau is hereby enjoined in these proceedings as an Interested Party.b.The Petitioner and the Respondents shall within 14 days serve all the documents filed upon the enjoined Interested Party.c.The Interested Party shall then file and serve his response to the Petition within 14 days of service in (b) above.d.The Hon Deputy Registrar shall fix the matter for further directions.

Orders accordingly.DELIVERED, DATED andSIGNED atKITALE this16th day ofDecember, 2022. A. C. MRIMAJUDGERuling No. 1 delivered virtually in the presence of: -Mr. Munywa Ezekiel, Learned Counsel for the Petitioner.Miss. Kihara, Learned Counsel for the Respondents.Mr. Mwasaru, Learned Counsel for the Interested Party.Kirong/Regina – Court Assistants.