[2023] KEHC 25916 (KLR)

Rakewa v County Assembly Board Vihiga & 2 others; Kilinga (Interested Party); Kenya County Government Workers Union Vihiga (Proposed Interested Party) (Constitutional Petition E005 of 2023) [2023] KEHC 25916 (KLR) (29 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25916 (KLR)

Republic of Kenya

In the High Court at Vihiga

Constitutional Petition E005 of 2023

JN Kamau, J

November 29, 2023

Between

Francis Otieno Rakewa

Petitioner

and

The County Assembly Board Vihiga

1st Respondent

The Clerk County Assembly of Vihiga

2nd Respondent

The Speaker County Assembly of Vihiga

3rd Respondent

and

Hon Joab Ambaka Kilinga

Interested Party

and

Kenya County Government Workers Union Vihiga

Proposed Interested Party

Ruling

Introduction 1. In its Notice of Motion dated 14th June 2023 and filed on 16th June 2023, the Proposed Interested Party herein sought leave to be enjoined as an Interested party in the proceedings herein.

2. Nelson Amudala swore an Affidavit in support of the said application on behalf of the Proposed Interested Party on 14th June 2023. The Proposed Interested Party averred that it was a legal entity that operated as a trade union for employees working under the forty seven (47) Counties within the Republic of Kenya of which it was the Vihiga County Government Branch.

3. It pointed out that when the Vihiga County Assembly Members Car Loan and Mortgage Scheme Fund (hereinafter referred to as “the Fund”) was initiated in 2014, it was only for Members of the County Assembly (MCAs). However, after an amendment to the legislation in 2015, all staff of Vihiga County Assembly were incorporated as beneficiaries of the Fund.

4. It asserted that in 2019, it wrote to the Ethics and Anti-Corruption Commission (EACC) regarding the fraudulent manner in which the 1st Respondent was running the said Fund. It added that it agreed with the findings of the Report of the Ad Hoc Committee of the Vihiga County Assembly dated 16th May 2023 which investigated the operations surrounding the management of the said Fund.

5. It was its contention that its staff were beneficiaries of the said Fund and having had a substantial manner in which the said Fund was being operated, they ought to be granted permission to participate in these proceedings as the outcome was likely to impact on their interests. They further asserted that the orders they had sought would not prejudice the Respondents but rather, it would promote the wholesale resolution of the issues the Petitioner herein had raised.

6. In opposition to the said application, on 19th June 2023, the Petitioner herein swore a Replying Affidavit. The same was filed on 21st June 2023.

7. He averred that the present application was fatally defective as there was no Recognition Agreement between the Proposed Interested Party and the 1st Respondent herein. He pointed out that he was not a member of the Proposed Interested Party and that adding it to the proceedings herein would not add value to the issues he had raised in his Petition.

8. He stated that the proceedings herein were not public interest litigation but rather the same had sought enforcement of his rights and that the Proposed Interested Party were only seeking relevance in the matter herein. He emphasised that the Proposed Interested Party were speaking to the findings of the Ad Hoc Committee while the Petition herein had sought to challenge the violation of his rights as was enshrined in the Constitution of Kenya.

9. He averred that the Proposed Interested Party would not suffer any prejudice if the order it had sought was not granted. He was categorical that the present application was incurably and fatally defective, misconceived, bad in law and an abuse of the court process and that it had not met the threshold of being granted. He also raised similar issues in the Grounds of Opposition that were dated 19th June 2013 and filed on 21st June 2023.

10. The 1st Interested Party did not file his Written Submissions in respect of the present application. His application to be enjoined in the proceedings herein was allowed on 19th July 2023.

11. The Proposed Interested Party’s Written Submissions were dated 4th August 2023 and filed on 8th September 2023 while those of the Petitioner were dated 8th August 2023 and filed on 9th August 2023. The Ruling herein is therefore based on the aforesaid Written Submissions which both parties relied upon in their entirety.

Legal Analysis 12. The Proposed Interested Party referred this court to Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 where an interested party was defined as having been a person or entity that had an identifiable stake or legal interest or duty in the proceedings but was not a party to the proceedings or may not be directly involved in litigation. This was a position that was reiterated in the case of Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7others [2014] eKLR.

13. It submitted that the issue of a Recognition Agreement was misplaced as the subject herein did not involve matters of Collective Bargain Agreement (CBA) or an employment dispute between the 3rd Respondent and staff. It added that the Petitioner herein had been identified as one of the persons of interest in so far as the loss of the Fund was involved as a result of which the staff had an interest in the outcome of the recommendations that were made by the aforesaid Ad Hoc Committee.

14. On the other hand, the Petitioner relied on the case of Attorney General v David Ndii & 7others [2021] eKLR and Francis Karioki (sic) Muruatetu v Republic & 5others [2016] eKLR where the principles of admission of a party to proceedings as an interested party were set out as follows:-a.The personal interest or stake that the interested party had had to be set out in the application.b.The interest had to be clearly identifiable and proximate enough.c.The intended interested party ought to demonstrate the prejudice to be suffered in the event of its non-joinder to the proceedings.

15. It submitted that the Proposed Interested Party had not demonstrated any personal stake in the matter or any connection between them or what it intended to do in the proceedings herein. It argued that it would not suffer any prejudice for the reason that the Petition was about enforcement of his human rights which did not affect its operations.

16. As was correctly pointed out by the Proposed Interested Party, Rule 2 of the Constitution of Kenya (Protection of Fundamental Rights and Fundamental Freedoms) Practise and Procedure Rules, 2013 (Legal Notice 117 of 2013 defined 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.”

17. In the Petition dated and filed on 18th May 2023, the Petitioner herein sought the following reliefs:-a.That an order of certiorari do issue bringing before this Honourable Court the report of the ad hoc committee dated 16th May 2023 for purposes of quashing the recommendations number 1, 3 and 4 thereof for having been made without following the due process of the law.b.Damages for violation of the Petitioner’s right to access information, right to fair hearing and administrative action and the right to human dignity and the right to equality and nondiscrimination. (sic)c.General damages and costs of the application.

18. Although the Proposed Interested Party may not have had a proximate interest in the Petitioner’s claim for general damages in respect of his assertion that his rights to fair trial, administrative action, access to information , human dignity, equality and non-discrimination had been violated infringed upon and contravened under Articles 25, 27, 35, 47, 50, 73(1), 73(1)(c), 253(1)(b) and 259 of the Constitution of Kenya, Prayer No (1) of the Petition herein touched on the Report of the Ad hoc Committee that the Proposed Interested Party had an interest in.

19. A perusal of the Affidavit of Nelson Amudula and the grounds on the face of the Proposed Interested Party’s present application showed that its members had a substantive interest in the manner the Fund was being operated.

20. It was therefore apparent to this court that the Proposed Interested Party’s interests were proximate and not remote as it would be affected if the order for certiorari seeking to quash the recommendations of the Report of the said Ad hoc Committee was granted in its absence. A stranger to proceedings cannot seek redress from a higher court if it is aggrieved by a decision it did not participate in. Indeed, it is trite law that courts must not to grant orders against parties who are not parties to proceedings before as enforcing such orders also portended challenges of enforcement of orders granted in such circumstances.

21. This court was persuaded to find and hold that the Proposed Interested Party had demonstrated the nexus between what its staff wanted to see implemented as per the recommendations of the Report of the Ad hoc Committee and the prayer in the Petitioner’s Petition seeking to quash certain parts of the said Report and it would be greatly prejudiced if it was not given an opportunity to participate in the proceedings herein. It was necessary that the Proposed Interested Party herein be enjoined in the proceedings herein to safeguard its members’ interests but only limited to the question of the quashing of the Report of the Ad hoc Committee.

22. For the avoidance of doubt, in the event the Petitioner opted not to proceed with Prayer No (1) of his Petition herein, the Proposed Interested Party would not be a necessary party to the proceedings.

23. Without pre-empting the Proposed Interested Party’s case, its interest on the issue of damages for infringement of the Petitioner’s constitutional rights would not only be lacking in any legal basis but it would cause delay and embarrass the proceedings herein and distracting the parties herein from having the real issues between them from being heard and determined by clouding the real issues for determination.

24. The Proposed Interested Party herein be and is hereby urged to restrain itself from delving into other limbs of the Petition herein which do not concern it so as not to make the matter convoluted and cause delays in the resolution of the matter herein.

Disposition 25. For the reasons foregoing, the court finds that the Proposed Interested Party’s Notice of Motion application dated 14th June 2023 and filed on 16th June 2023 was merited and in the circumstances, the same is hereby allowed. Costs of the application will be in the cause.

26. It is so ordered.

DATED AND DELIVERED AT VIHIGA THIS 29TH DAY OF NOVEMBER 2023J. KAMAUJUDGE