[2016] KEHC 2582 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JR MISC. APPLICATION NO. 165 OF 2013

REPUBLIC……………..………………………….……………APPLICANT

AND

THE PRINCIPAL SECRETARY, MINISTRY OF LANDS, HOUSING

AND URBAN DEVELOPMENT……..………..………...….RESPONDENT

TOM NDECHE

AND

PETER SHISIA MAYEENDE.............................. INTERESTED PARTIES

SOWETO EAST “A” HOUSING CO-OPERATIVE

SOCIETY LIMITED..............................................................APPLICANTS

EX PARTE:KENYATTA PETER & 3 OTHERS

RULING

1. Upon hearing the application this Court on 27th November, 2014, granted the following orders:

1. Certiorari removing into this Honourable court the Respondent’s directive dated 14th November, 2012 and 29th April, 2013 to evict the ex parte applicants and any other consequential orders emanating therefrom and the same are hereby quashed.

2. Prohibition against the Permanent Secretary Ministry of Housing his Officers, servants, agents or assignees from implementing or executing the order of demolishing, evicting, damaging or interference with the applicants’ business, homes, structures and properties located within Kibera Soweto East Zone slums or act in any other way that will prejudice their safe, quiet enjoyment of the same pending further orders of this Court.

3. Pursuant to Article 23 of the Constitution which does not limit the remedies this Court is empowered to grant in such cases, I direct that within30 days of this Judgment, a meeting shall be convened by the Respondent with the Applicants, where a programme of eviction of the Applicants shall be designed taking into account the following factors:

i) that at the time of eviction, neutral observers should be allowed access to the suit properties to ensure compliance with international human rights principles.

ii) that there must be a mandatory presence of Governmental officials and security officers.

iii) that there must be compliance with the right to human dignity, life and security of the evictees.

iv)That the evictions must not take at night, in bad weather, during festivals or holidays, prior to any election, during or just prior to school exams and in fact preferably at the end of the school term or during school holidays.

v)that no one is subjected to indiscriminate attacks.

4. The Report of the progress shall be filed in this Court within 60 days from the date of this Judgement.

5. Liberty to apply granted.

6. As this was substantially a representative Cause, there will be no order as to costs.

2. By an application brought by way of Motion on Notice dated 9th September, 2016, the applicant herein, Soweto East “A” Housing Co-operative Society Limited, seeks that it be joined to these proceedings as an interested party.

3. According to the applicant, it was incorporated on 29th June, 2007 as a special purpose vehicle through which the residents of Soweto East Zone “A” in Kibera Estate were to save money, for the purposes of acquiring houses and stall swhich were to be constructed with the Estate by the Government of Kenya under the Kenya Slum Upgrading Programme.

4. It was averred that the applicant has a membership of 1766 persons directly interested in these proceedings since the orders sought by the ex parte applicants herein will, if granted, affect the interested of the members of the applicant. It was therefore averred that it is necessary that the interested party responds to the said allegations in order to enable the Court make an informed decision with respect to the beneficiaries of the Market Stalls or the land on which the same and other social amenities are being constructed.

5. The applicant’s view was that the omission to join it to these proceedings was meant to conceal material facts and evidence from the Court as the applicant is a necessary party to these proceedings whose presence will enable the Court to effectively and completely adjudicate upon and settle the questions involved in this petition.

6. It was the applicant’s case that its joinder to these proceedings will not prejudice any of the parties to the proceedings.

Ex Parte Applicants’ Case

7. In opposing the application the ex parte applicants averred that is vexatious, frivolous, an abuse of court process and meant to derail justice, create confusion in the matter and a complete destruction of their notice of motion dated 23rd August, 2016. According to them, none of the 345 applicants are members of the said Soweto East “A” housing Co-operative Society Ltd.

8. It was averred that the mandate of the intended interested party as “a special purpose vehicle” as allege ended with the housing estate but not the market stalls as at the time of enumeration as confirmed by the PS there was no data and that is why a proper process was to start afresh. It was averred that the alleged fictitious 1,766 persons have never been part of this process as alleged since the substantive judicial review herein was brought up as a representative suit of about 600 people as initially intimated to court however with proper enumeration under the watch of the honourable PS in charge then it emerged only that the real beneficiaries were 345 people.

9. It was averred that by its judgement herein the Court gave several pre-conditions. Whereas the applicants allegedly intend to respond to “adverse allegation” in the ex parte applicants’ application, the ex parte applicants contended that nowhere have they mentioned the applicant throughout these proceedings since inception of the matter. It was therefore the ex parte applicants’ case that the applicant is not disclosed to court and purely speculative since the said enjoined 1,776 persons are not party to these case, neither do the 345 properly enumerated individuals want to be associated with it. Accordingly the joinder of the applicant is simply meant to annoy, embarrass and defeat justice. The ex parte applicants believed that the applicant is a decoy and front by Cartels in the land ministry to defeat justice on the poor slum dwellers who were relocated on the land and who are the bona fide party.

10. The ex parte applicants asserted that the joinder of the applicant will only slow down the process and create confusion.

11. According to the ex parte applicants, the application has been brought belatedly and too late in the day since a judgement has already been delivered and the applicant was not a party to the proceedings that gave rise to the said judgement. It was therefore contended that this application is an abuse of the Court process.

12. To the ex parte applicants, joining the applicant herein will jeopardise not only the rights of the parties but also the quick implementation of the project and will hence amount to a violation of the ex parte applicants’’ rights to natural justice.

13. According to the ex parte applicant, there was no evidence the applicant was registered hence its locus standi was questionable.

14. It was averred that since the ex parte applicants were not seeking any orders against the applicant, the applicant has no interests in these proceedings hence no prejudice will be suffered by the refusal to join it to these proceedings.

Interested Party’s Case

15. According to the interested parties, by and large the key stakeholder is the applicant, civil society organizations and local political leadership which needs to be enjoined in this matter.

Determinations

16. I have considered the application, the affidavits on record and the submissions made.

17. Order 53 rule 3(2) and (4) of the Civil Procedure Rules provide:

(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.

(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.

18. Therefore whereas subrule (2) of Order 53 rule 3 aforesaid restricts persons who should be served to those who are “directly affected”, subrule (4) on the other hand gives the Court wide discretion to order that the application be served on any other person notwithstanding that that person ought to have been served under subrule (2) or not and the Court’s decision to do so is only subject tosuch terms (if any) as the court may direct.It is therefore my view that unlike under subrule (2) the Court has unfettered powers under subrule (4) and in my view this power is meant to ensure that justice is done. Therefore where the Court is of the view that a person ought to be joined to the proceedings the Court is properly entitled to direct that that person be joined notwithstanding that such a person has not made an application to Court. Under such circumstances a formal application is not necessary

19. However where an application is made under subrule (2), it is incumbent upon a person who alleges that he or she ought to have been served to show how the proceedings directly affect him or her. The mere fact, however that a person has made such an application does not preclude the Court from invoking its unfettered discretion under subrule (4) to have such a person joined to the proceedings even if the applicant does not satisfy the Court that the person is directly affected thereby. The word “direct” is defined by Black’s Law Dictionary, 9th Edn. page 525 as “straight; undeviating, a direct line, straightforward, immediate.” Since judicial review orders are concerned with the decision making process rather than the merits of the decision, a party who contends that he or she is directly affected by the proceedings ought to bring himself or herself within the ambit of the judicial review jurisdiction and ought not to apply to be joined thereto with a view to transforming judicial review proceedings into ordinary civil litigation.

20. In my view, for a party to be joined to the proceedings under Order 53 rule 3(2) aforesaid the applicant ought to disclose to the Court how he or she is directly affected. The Court cannot be expected to act in the dark by joining such a person with a view to satisfying itself as to the effect of the orders sought on the applicant at a later stage of the proceedings.

21. However, the decision whether or not to join a party is an exercise of discretion and if no substantial purpose or benefit will be gained by the joinder of a person to the proceedings and where the said joinder will militate against the expeditious disposal of the said proceedings which by their nature ought to be heard and determined speedily, the Court will be reluctant to join the intended party to the proceedings particularly where a judgement has been delivered as is in this case..

22. I associate myself with the decision in Macademia Nuts Dealers vs. Horticultural Crops Development Authority & Others [2014] eKLR that:

“an interested party is a party who has a stake/interest directly in the matter before the Court, though he or she is not a party to the case. He must be a party who is likely or who will be affected by the decision of the court and he or she is of the view that unless he or she is enjoined (sic) in the matter his/her interest will not be well articulated or protected unless she or he is made a party to ventilate his or her cause.”

23. An applicant for joinder ought not to seek to be joined to proceedings which are concluded with a view to seeking reliefs which ought to be sought by way of an application for review. Further the Court will not allow a party to be joined to such proceedings if his joinder will only have the effect of muddying the proceedings and delay the expeditiously disposal of the mater.

24. In this case, the applicant contends that the orders sought by the ex parte applicants herein will, if granted, affect the interest of the members of the applicant. As to how their interests will be affected is not disclosed. It was incumbent upon the applicant to satisfy the Court particularly at this late stage of the proceedings the exact nature of their interests so that the Court can determine whether their joinder is necessary and the effect of such joinder on proceedings which are almost concluded.

25. In this case, I do not have sufficient material on the basis of which I can determine that the applicant has interests in this suit which ought to be canvassed in these proceedings and at this stage of the proceedings. Further the applicant has not demonstrated what issues it intends to canvass and whether such issues cannot be effectively canvassed by parties who have participated in these proceedings so far.

26. Whereas the alleged role of the applicant in assisting the Court to effectively and completely adjudicate the matter may be a consideration in an application under Order 1 rule 10 of the Civil Procedure Rules, in judicial review especially where a party’s interests can be or has been catered for by another party already a party to the proceedings, there would be no reason to join the party intending to join the proceedings as a party thereto.

Order

27. In the premises I decline to join the applicant herein, Soweto East “A” Housing Co-operative Society Limited, to these proceedings. Consequently, the Notice of Motion dated 9th September, 2016 fails and is dismissed but as the applicant is not yet a party to these proceedings there will be no order as to costs.

28. It is so ordered.

Dated at Nairobi this 14th day of October, 2016

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Okemwa for the ex parte applicants

Mr Irungu for Mr Nyambane for the Interested Parties

CA Gitonga