[2022] KEHC 14234 (KLR)

Republic v Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries; Agriculture, Livestock and Fisheries (Exparte); Agriculture and Food Authority (Proposed Interested Party) (Judicial Review Miscellaneous Application 11 of 2020) [2022] KEHC 14234 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14234 (KLR)

Republic of Kenya

In the High Court at Kisumu

Judicial Review Miscellaneous Application 11 of 2020

RE Aburili, J

October 18, 2022

IN THE MATTER OF THE APPLICATION FOR JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION

Between

Republic

Applicant

and

Cabinet Secretary, Ministry of Agriculture, Livestock & Fisheries

Respondent

and

Agriculture, Livestock and Fisheries

Exparte

and

Agriculture and Food Authority

Proposed Interested Party

Ruling

1. This ruling determines the application dated October 4, 2021 in which the Attorney General seeks from this Court orders to enjoin to these proceedings the intended Interested Party herein Agriculture and Food Authority. The application is supported by an affidavit sworn by one Rosemary Owino, a Director at the Sugar Directorate of the proposed Interested Party, Agriculture and Food Authority.

2. Mrs. Owino deposes that the proposed interested party was tasked with implementing a decision by the National Government to lease out its 5 state owned factories and therefore it had a complete understanding of the decision being contested in the instant proceedings.

3. Opposing the aforementioned application, the Ex- Parte applicant Johnstone Ochieng Otieno relies on the Grounds of Opposition dated October 5, 2021 and filed on the October 6, 2021 by his counsel Bruce Odeny &Associates contending that:i.The intended interested party/applicant has not demonstrated to the required standards that he has sufficient or any interest at all in the subject matter herein so as to entitle it/them to be joined as an interested party to this suit.ii.The intended interested party is an agency under the Ministry of Agriculture, Livestock and Fisheries of the Republic of Kenya whose interested in this suit, if any, is a subset of the interests of the respondent both of who receive legal advice from the Attorney General of the Republic of Kenya.iii.The application is bad in law, is unbegotten, misconceived and an abuse of the process of the court.iv.The application is made in bad faith, is a thinly veiled but well focused attempt by the intended interested party to delay the prosecution and determination of this matter.

4. The parties canvassed the application by way of written submissions.

The Proposed Interested Party’s Submissions 5. On behalf of the proposed Interested Party, it was submitted that the test in this case is whether the intended Interested Party has an identifiable stake or a legal interest in the proceedings and not whether the application would be according to or against the wishes of the ex-parte applicant. To this end, the applicant submitted that as the body tasked with implementation of the government’s decision to sell its factories, it had demonstrated a legal and identifiable interest and a duty to participate in these proceedings.

6. It was further submitted that the interested party may also be added by the court itself where it appears to the court that it is desirable to do so. The proposed interested party submitted that they would assist the court to resolve the issues raised in the instant proceedings.

7. Reliance was placed on the Court of Appeal case in Moses Wachira v Niels Bruel & 2 Others[2015] eKLRwhere the court cited the Supreme Court decision in Communications Commission of Kenya & 4 Others v Royal Media Services Limited & 7 Others [2014] eKLR.

8. It was further submitted that the proposed interested party had demonstrated to the court their mandate to realise the revitalisation of the sugar industry and were thus competent to defend the suit. They reiterated that they had a substantial interest in the suit and would assist the court in canvassing the issues more clearly as they would be able to shed more light on the issues raised by the ex-parte applicant in the instant suit.

9. The proposed interested party further relied on the ELC case of National Land Commission & 2 Others Ex-parte Flamingo Horticulture (K) Ltd; Ontulili Mt Kenya Forest Squatters (Intended Interested Parties/Applicants) where the court allowed joinder of the interested party on account that they would be affected by any order emanating from the court.

Ex-Parte Applicant’s Submissions 10. Ion behalf of the Exparte applicant, it was submitted that the proposed interested party was an agent of the respondent and thus there was no need to sue the interested party as was held by the Court of Appeal in the case of City Council of Nairobi v Wilfred Kamau Githua t/a Githua Associates & Another [2016] eKLR.

11. It was further submitted that being an agent of the respondent for purposes of implementing the respondent’s decisions and policies, the addition of the proposed interested party does not add value and further that the material placed before court in support of the application does not meet the threshold for grant of orders sought.

Analysis & Determination 12. I have considered the application for joinder of the proposed interested Party, the supporting affidavit, the grounds of opposition and the written submissions by both counsel for all the parties. I find the main issue for determination is whether the applicant should be enjoined to these judicial Review proceedings as an interested party.

13. The Black’s Law Dictionary, 9th Edition at page 1232 defines an interested party as:“A party who has a recognizable stake (and therefore standing) in the matter"

14. Order 41 Rule 5 of the Civil Procedure Rules 2010, make a reference to the term “interested party” and states that:“The court may either on its own motion or on application by any interested party, remove a receiver appointed pursuant to this order on such terms as it thinks fit."

15. The ‘Mutunga Rules’, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, Legal Notice No. 117 of 2013, defines an interested party as:“A person or an entity that has an identifiable stake or legal interest or duty in the proceedings and may not be directly involved in the litigation.”

16. The Rules further at Part II Clause 7 provides that, a person with leave of the Court may make an oral or written application to be joined as an interested party or the Court, on its own motion, may also join an interested party to the proceedings before it.

17. In Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR, Mativo. J. persuasively explained when an interested party ought to be enjoined in a proceeding. He stated that:“A person is legally interested in the proceedings only if he can say that it may lead to a result that will affect him legally that is by curtailing his legal rights. In determining whether or not an applicant has a legal interest in the subject matter of an action sufficient to entitle him to be joined as an interested party the true test lies not so much in an analysis of what are the constituents of the applicant's rights, but rather in what would be the result on the subject-matter of the action if those rights could be established. It is apparent that a party claiming to be enjoined in proceedings must have an interest in the pending litigation, but the interest must be legal, identifiable or demonstrate a duty”.

18. In the Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR the Supreme Court of Kenya held that:“(22)In determining whether the applicant should be admitted into these proceedings as an Interested Party we are guided by this Court’s Ruling in the Mumo Matemo case where the Court (at paragraphs 14 and 18) held:“[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…”

19. In addition, the Supreme Court laid down the guiding principles applicable in determining an application to be enjoined in proceedings as an interested party in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others SC Petition (Application) No 12 of 2013. The principles were affirmed in the case of Francis Karioko Muruatetu & another v Republic & 5 others, Sup Ct Petition No 15 as consolidated with Petition No 16 of 2015, [2016] eKLR where the court stated:“.… 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.”

20. Finally, these are judicial Review Proceedings brought under Order 53 of the Civil Procedure Rules. What does the Order provide for, in relation to interested parties?

21. Under Order 53 Rule 3 of the Civil Procedure Rules:3. Application to be by notice of motion(1)When leave has been granted to apply for an order of mandamus, prohibition or certiorari, the application shall be made within twenty-one days by notice of motion to the High Court, and there shall, unless the judge granting leave has otherwise directed, be at least eight clear days between the service of the notice of motion and the day named therein for the hearing.(2)The notice shall be served on all persons directly affected, and where it relates to any proceedings in or before a court, and the object is either to compel the court or an officer thereof to do any action in relation to the proceedings or to quash them or any order made therein, the notice of motion shall be served on the presiding officer of the court and on all parties to the proceedings.(3)An affidavit giving the names and addresses of, and the place and date of service on, all persons who have been served with the notice of motion shall be filed before the notice is set down for hearing, and, if any person who ought to be served under the provisions of this rule has not been served, the affidavit shall state that fact and the reason why service has not been effected, and the affidavit shall be before the High Court on the hearing of the motion.(4)If on the hearing of the motion the High Court is of the opinion that any person who ought to have been served therewith has not been served, whether or not he is a person who ought to have been served under the foregoing provisions of this rule, the High Court may adjourn the hearing, in order that the notice may be served on that person, upon such terms (if any) as the court may direct.”[emphasis added]

22. From the above provisions, it is clear that judicial review proceedings ought to be served upon all persons who may directly be affected by the proceedings and that the Court may on its own motion order that such other persons who may be directly be affected by the proceedings but are not parties to the proceedings be served with the notice of motion.

23. Applying the aforementioned principles to the instant case, I observe that the applicant submitted and it was not contested that the proposed interested party is tasked with the implementation of decisions by the national government to lease out its five (5) state owned factories, a decision that is at the centre of the ex-parte applicant’s claim before this court.

24. I take judicial notice of the fact that government policy is normally implemented not by the office of the Cabinet Secretary itself, in its own capacity, but by an organ established thereunder and in this case, that mandate falls on the proposed interested party. Indeed, none of the averments by the interested party regarding its implementation role has been disputed by the ex-parte applicant.

25. I have considered the authority relied on by the ex-parte applicant and find that it is distinguishable from the facts herein in that in the City Council of Nairobi supra case, the dispute involved recovery of damages for breach of a contract and the court was faced with a question of whether to enjoin an agent of one of the parties to a contract in a situation where the principal had already been sued.

26. In my humble view, in the instant case, the proposed interested party is not an agent of the respondent herein but the principal tasked with implementing policies set out by the respondent parent ministry in the agriculture, livestock and fisheries sector.

27. I find that the proposed interested party has an identifiable stake in the matter raised by the ex-parte applicant in its judicial review application and that it is directly affected by these proceedings hence it stands to suffer prejudice if not enjoined by this court as the orders made, adverse or not, would have to be implemented by them.

28. The proposed interested party has also satisfied this court that its participation in these proceedings will assist the court in effectually and efficiently determining the issues raised in the matter before this court. This they submitted, is because they are the implementers of the government’s decision to sell its factories, a decision that is being challenged by the ex-parte applicant and that it would assist the court in canvassing the issues more clearly as it will shed more light on the issues raised by the ex-parte applicant in the instant proceedings.

29. In the circumstances, I am satisfied that a case has been made for the joinder of the proposed interested party to these judicial review proceedings.

30. I find that the application dated October 4, 2021 has merit. I allow it with an order that each party bear their own costs of the said application. I further direct the now enjoined Interested Party herein, Agriculture and Food Authority to file and serve on all the parties hereto the affidavit in reply to the substantive Notice of motion. Mention on November 15, 2022 to confirm compliance and for directions to issue on the disposal of the substantive motion.

31. I so order

DATED, SIGNED AND DELIVERED AT KISUMU THIS 18THDAY OF OCTOBER, 2022R.E. ABURILIJUDGE