[2022] KEHC 10896 (KLR)

Oparanya v Panyako & another; Communications Authority of Kenya (Interested Party) (Civil Suit E002 of 2021) [2022] KEHC 10896 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10896 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Suit E002 of 2021

WM Musyoka, J

May 13, 2022

Between

Wycliffe Ambetsa Oparanya

Plaintiff

and

Seth Panyako

1st Defendant

Kenya News TV

2nd Defendant

and

Communications Authority of Kenya

Interested Party

Ruling

1. The application for determination is the Motion , dated May 27, 2021, in which the plaintiff seeks admission the Communications Authority of Kenya as an interested party into these proceedings limited to the purposes of the application , for order directed to the interested party to officially extract the video clip published on the YouTube platform on February 4, 2021at https://www.youtube.co./watch?v=M6PldzmBefo on a USB flash drive and prepare a certificate for the same, joinder of the proposed 2nd defendant to these proceedings, an order to the interested party to furnish the plaintiff with registration details of the proposed 2nd defendant, and, upon admission of the proposed 2nd defendant to these proceedings, leave to the plaintiff to amend its pleadings. I am called upon to determine whether the Communication Authority of Kenya and the Kenya News TV ought to be joined to this suit as interested party and 2nd defendant, respectively.

2. The term interested part is defined in the Black’s Law Dictionary, 8th Edition, as:“… a party who has recognizable stake and therefore a standing in a matter.”Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines an interested party as;“… 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.”An Interested Party was defined in Trusted Society of Human Rights Alliance vs. Mumo Matemu & 5others[2014] eKLR (Coram Ibrahim, Wanjala SCJJ) as:“... 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 ...”In Julius Meme vs. Republic & another [2004] eKLR (Rawal, Njagi JJ & Ojwang Ag J), the High Court observed that a party could be joined in a matter for the reasons that:“(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings;(ii)joinder to provide protection for the rights of a party who would otherwise be adversely affected in law;(iii)joinder to prevent a likely course of proliferated litigation.”

3. The Communications Authority of Kenya, the proposed interested party, is established under section 3 of the Kenya Information and Communications Act No. 2 of 1998, as a regulatory authority for the communication sector in Kenya. The communication sector includes; telecommunication, postal, courier and broadcasting. Section 2 of the Act defines a broadcaster as “any legal or natural person who composes or packages distributes television or radio program services for reception by the public or sections of the public or subscribers to such a service, irrespective of technology used…” The proposed 2nd defendant, Kenya News TV, falls within that definition.

4. The purpose for joinder in this particular application is for the interested party to officially extract the video clip published on the YouTube platform on 4th February 2021, at https://www.youtube.co./watch?v=M6PldzmBefo on a USB flash drive and preparation of a certificate for the same. The extraction of a YouTube video can be done by any person with access to the internet. The processing of the certificate for presentation in court is done by the person who extracts the video from the internet, and uploads it onto the USB disc. The court should not act in vain when joining an interested party, as was observed in AMM vs. JMN [2019] eKLR , the court said:“An interested party is one who has a stake in the proceedings, though he was not party to the cause ab initio. He is one who will be affected by the decision of the Court when it is made, either way. The Court should not act in vain by enjoining a party that clearly would have no interest in the subsequent proceedings.”

5. Having considered the above, it is my finding and holding, that the proposed joinder of an interested party, merely to download a YouTube video, would not meet the test for joinder of such parties, as a YouTube video can be downloaded by any person who has access to the internet. A party should not be dragged to court in a dispute in which it has no interest or stake, but only so that it can assist the parties to the dispute to collect evidence. Secondly, electronic evidence is admissible under section 78A of the Evidence Act, Cap 80, Laws of Kenya, so long as the same is properly harvested or harnessed in accordance with eth law laid down in the Evidence Act, and is properly presented in court.

6. I am invited to order the interested party to furnish the plaintiff with registration details of eth proposed 2nd defendant. The proposed interested party has indicated that the proposed 2nd defendant is not a licensee of the Authority. As such, the plaintiff ought to obtain the registration documents of the proposed 2nd defendant from the Companies Registry. I reiterate what I have stated in paragraph 8 hereabove, that it would be an abuse of process to drag a party to court, who has no interest or stake in the subject-matter of the suit, but only for eth purpose of mining information or gathering evidence using the proposed interested party.

7. I will now turn to the issue of joinder of the proposed 2nd defendant to the suit. The Law on joinder of parties to civil proceedings is order 1 rule 3 of the Civil Procedure Rules, 2010 which reads:“Who may be joined as defendants [order 1, rule 3]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.”

8. The test for joinder as a defendant was laid down in Kingori v Chege & 3 others [2002] 2 KLR 243 (Nambuye J) where the learned Judge stated that the guiding principles when an intending party is to be joined are as follows:1. He must be a necessary party.2. He must be a proper party.3. In the case of the defendant there must be a relief flowing from that defendant to the plaintiff.4. The ultimate order or decree cannot be enforced without his presence in the matter.5. His presence is necessary to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit.”

9. The proposed 2nd defendant is said to have been the publisher and distributor of the alleged defamatory remarks, made by the 1st defendant, ought to be joined in this suit. It will up to the plaintiff to prove that the proposed 2nd defendant published and distributed the alleged defamatory remarks.

10. In view of everything that I have said above, I hereby dismiss the application, dated May 27, 2021, with respect to prayers 1, 2 and 4; and allow the same with respect to prayers 3 and 5. Costs shall be in the cause.

DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAKMEGA THIS 13TH DAY OF MAY 2022WM MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Mukele, instructed by Mukele Moni & Company, Advocates for the plaintiff.Mr. Busiega, instructed by Mayiende & Busiega, Advocates for the defendant.Mr. Mwanthi, instructed by Majanja Luseno & Company, Advocates for the proposed interested party.