[2022] KEHC 16249 (KLR)

Republic v Registrar of Societies & another; East African Pestecostal Churches (Exparte); Muthinja & 2 others (Interested Parties) (Judicial Review E005 of 2022) [2022] KEHC 16249 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16249 (KLR)

Republic of Kenya

In the High Court at Meru

Judicial Review E005 of 2022

TW Cherere, J

December 15, 2022

Between

Republic

Applicant

and

Registrar of Societies

1st Respondent

The Hon. Attorney General

2nd Respondent

and

East African Pestecostal Churches

Exparte

and

Bishop Geoffrey Muthinja

Interested Party

Bishop Robert Banda Ngome

Interested Party

Daniel Kirogi

Interested Party

Ruling

1. Before me for determination is a notice of motion dated October 13, 2022 by which the applicants/interested parties seek to be enjoined to this suit. The application is based on the ground that applicants are officials of the church and have already submitted their names to the 1st respondent for registration vide notification of change of officers or title of any officer received by the 1st respondent on February 28, 2022.

2. Application is opposed vide a replying affidavit sworn by Henry Kinyua on October 21, 2022 in which he disowns the applicants and provides another list of 6 persons whom he avers are the legitimate church officials elected on February 28, 2022.

3. I have considered the application in the light of affidavits and annexures on record and on the submission filed on behalf of the applicants and the ex-parte applicant and the issue for determination is whether applicants have satisfied the court that they have an intetest in this matter.

4. The Supreme Court in the authority of Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR stated as follows:'Consequently, 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.'

5. The guiding principles encompassing the enjoinment of an interested party to a suit were articulated by the Supreme Court in the decision of Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura (as amicus curiae) [2017] eKLR when it cited its decision inFrancis Karioki Muruatetu & Another v Republic & 5 others Petition 15 as consolidated with 16 of 2013 [2016] eKLR where it held 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.'

6. That the court has discretion to have a necessary party enjoined in the proceedings is backed by proviso of rule 7 (1) of the Constitution of Kenya(Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 that a person can seek leave of the court either orally or by way of a formal application to be enjoined as an interested party.

7. It is apparent that at the crux of this suit is the registration of officials of the ex-parte applicant with arising from submissions of two sets of officials to the 1st respondent.

8. After considering the position by the intended interested parties, I am of the view that the intended interested parties have demonstrated an identifiable legal stake in the proceedings and are therefore necessary parties.

9. In the end, I make the following orders:1. The notice of motion dated October 13, 2022 has merit2. Applicants are hereby enjoined as interested parties3. The ex-parte applicant shall serve the petition on the interested parties within 14 days from today’s date4. The interested parties shall file and serve their response/s within 14 days of service of the petition5. Mention on March 21, 2023 to confirm compliance and for directions as to the hearing of the petition6. Costs shall be in the cause

DATED AT MERU THIS 15TH DAY OF DECEMBER, 2022. TW CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Ex-Parte Applicant - Mr. Murango for Murango Mwenda & Co AdvocatesFor Respondents - N/AFor Interested Parties - Mr. Kariuki for Mithega & Kariuki Advocates