https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4929

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELCL PETITION NO. E006 OF 2025** **THANGE FARMERS COMMUNITY** **BASED ORGANIZATION (CBO) ...............................................PETITIONERS** **-VERSUS-** **KENYA PIPELINE COMPANY LIMITED (KPC) ……….1ST RESPONDENT** **NATIONAL ENVIRONMENT MANAGEMENT** **AUTHORITY...........................................................................2ND RESPONDENT** **-AND-** **THANGE RIVER BASIN RESIDENTS' ASSOCIATION (Intending to join on behalf of the residents of River Thange Basin, Kibwezi Makueni** **County) ........................................................INTENDED INTERESTED PARTY** **RULING** 1. Before this court for determination is the Notice of Motion dated 16th February, 2026 filed by the Intended Interested Party/Applicant. It is brought under the provisions of Articles 48 and 50(1) of the Constitution, Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Sections 1A, 1B and 3A of the Civil Procedure Act. 2. The Applicant primarily seeks issuance of one Order: - 3. ***[SPENT]*** 4. **THAT leave be granted to THANGE RIVER BASIN RESIDENTS' ASSOCIATION to be joined in this suit as an Interested Party.** 5. The application is premised on the grounds appearing on its face together with the supporting affidavit of John Kimeu Mukai duly sworn on even date. He averred that he is the Chairman of the Applicant and a resident of Thange. That the Applicant has an active Petition before this court being **PETITION NO. 15 OF 2019; THANGE RIVER BASIN RESIDENTS' ASSOCIATION & 44 OTHERS V KENYA PIPELINE COMPANY LIMITED & 5 OTHERS.** 6. The deponent contended that a section of the Applicant’s members have been included in the current petition without their knowledge and the same is an abuse of court process. That in order to safeguard the interests and welfare of its members who were adversely affected by the unfortunate oil spillage in Thange on 12th May, 2015, the presence of the Applicant is necessary in order to enable this court to effectually and completely adjudicate all the questions in the matter. 7. The deponent further averred that the joinder of the Applicant will prevent proliferated litigation. He added that in the event of a judgment in this suit, the Applicant’s members will suffer great prejudice should the application be disallowed while their names have been duplicated in this suit contrary to the law. 8. The Petitioner filed grounds of opposition dated 3rd March, 2026. It was contended that the Applicant had failed to demonstrate a clear, direct and identifiable interest in this petition. That the Applicant had failed to demonstrate the nature of prejudice they stand to suffer for non-joinder as they had failed to prosecute a similar Petition No. 15 of 2019 for the last seven years. It was further contended that the presence of Applicant will prejudice the Applicant by convoluting issues and delaying the timely disposal of the case. They urged the court to dismiss the application for being incompetent and an abuse of court process. 9. The Applicants filed a further affidavit sworn by John Kimeu Mukai on 3rd March, 2026. He averred that the Petitioners herein have duplicated the names of fifty members of the Applicant who are Petitioners in ELC Petition No. 15 of 2019. That the Applicant has an identifiable stake in these proceedings and since fifty of its members were dragged to the suit without their consent, if the court was to render a decision affecting them then the same would be subject to a challenge. 10. Also opposing the application is the 1st Respondent who filed a replying affidavit duly sworn by its Legal Services Manager, Gloria Khafafa on 16th March, 2026. The deponent averred that the application is fundamentally misconceived in that whereas the Applicant asserts that its members are already before this court through the Petition, it then cannot logically seek joinder through a separate entity. That the only real issue is who has the proper authority to represent the overlapping members. It was contended that that question lies squarely between the Applicant and the Petitioner without the need for the addition of a new party to the proceedings. 11. The deponent maintained that the Applicant had failed to demonstrate how its participation in these proceedings would introduce any fact, argument, legal position or interest which is not already before this court. That an order for joinder would be duplicative and purposeless. It was contended that the 1st Respondent would suffer demonstrable prejudice if joinder were to be granted because no new evidence would be brought by the said overlapping members. Urging the court to dismiss the application, it was averred that joinder would only saddle these proceedings with a second representative body from the same community who has its own pending suit leading to unnecessary delays and cost escalation. 12. The Petitioner filed a replying affidavit sworn by Mercy Kandisi Mathuku on 8th April, 2026. The deponent averred that she is the Secretary of the Petitioner and that upon comparison of Exhibit “JKM-1” showing the alleged duplicated names in the Petition, it was their view that forty-four names thereon should be discharged from these proceedings. That upon discharge of the forty-four names, this application becomes otiose and should be dismissed with no orders as to costs. 13. The Applicant filed a supplementary affidavit sworn by John Kimeu Mukai on 21st April, 2026 in support of application. He reiterated that joinder of the Applicant to the proceedings would enable them to protect their interests which have been threatened and violated through the petition. 14. The application was disposed of by way of written submissions. 15. In the Applicant’s submissions dated 28th April, 2025, Counsel contended that the Petitioner had admitted vide the affidavit sworn on 8th April, 2026 that the names of 44 names in the petition were joined erroneously. Counsel submitted that unless the application is allowed, this court will oversee an illegality against its very own decision which in turn will negatively affect the Applicant. Counsel urged the court to allow the application as prayed with no orders as to costs. 16. In the Petitioner’s submissions dated 7th May, 2026, Counsel submitted that the alleged fifty members of the Applicant are already primary parties who filed pleadings and are barred by Rule 2 of the *Mutunga Rules* from simultaneously being joined in these proceedings as interested parties. It was further submitted that the Applicant had failed to establish its relevance to the hearing and determination of the Petition. That all the issues for determination in the Petition are triable as between the primary parties. 17. Counsel asserted that the only remedy for a case of duplication of parties is moving the court under Rule 5(d)(i) of the *Mutunga Rules* to have those particular names struck out. That the Petitioners have proposed to move the court at an appropriate stage. Counsel urged the court to dismiss the application with costs. 18. In the 1st Respondent’s submissions dated 7th May, 2026, Counsel submitted that the threshold for joinder of an interested party in a constitutional petition had not been met as required under Rule 5(d)(ii) of the *Mutunga Rules*. Relying on the findings of the Supreme Court **in Francis Karioki Muruatetu & Another v Republic & 5 others, SC Petition 15 & 16 of 2015 (consolidated); [2016] eKLR**, Counsel maintained that the requirements for joinder as an interested party had not been met. Counsel argued that the Applicant had not identified any specific right that would be extinguished, any remedy that would be foreclosed or any concrete harm that would follow. It was submitted that a case of prejudice to the Applicants, if joinder is disallowed, rests on a speculative foundation. 19. Counsel urged the court to dismiss the application with costs to the 1st Respondent. 20. From a perusal of the application, the respective replies and the rival submissions, the following particulars are common ground: - 21. The Applicant is the Petitioner in Makueni ELC Petition No. 15 of 2019; 22. About fifty names of the Applicant’s constituent members form part of the names within the membership of the Petitioner in this suit; and 23. Both Makueni ELC Petition No. 15 of 2019 and the present suit concern environmental claims and claims for compensation against the 1st Respondent by the respective petitioners. 24. The only question for determination is whether the Applicant has satisfactorily demonstrated the legal threshold for joinder as an Interested Party in the present petition. 25. According to Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, an interested party means: - ***“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.”*** 1. This court is empowered by virtue of Rule 5 (d) (ii) of the *Mutunga Rules* with the discretion order the joinder of a party whose presence is necessary for the complete adjudication a constitutional petition. The Rule sets out as follows: - **‘The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear just—** **(i) …** **(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.’** 1. The Supreme Court in the case of **Attorney General v David Ndii & 73 Others (Petition 12 (EO16) of 2020) [2021] KESC 17 (KLR)**, enumerated the guiding principles in an application for joinder of an interested party as follows: - ***“This court has laid down the guiding principles applicable in determining an application to be enjoined 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 Karioki Muruatetu & another v Republic & 5 others (supra) 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:*** 1. ***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.*** 2. ***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.*** 3. ***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”*** 4. In the present application, the Applicant has sought joinder on the basis that the Petitioner has irregularly incorporated fifty names within its register of membership without prior authorization or consent from the Applicant. The Applicant further bases its rationale for the application as being that it potentially risks being prejudiced by the eventual outcome of the suit which may be subject to challenge. 5. Measured against the yardstick of the findings of the Supreme Court in ***Muruatetu (supra)***, the Applicant has failed to demonstrate its personal interest in these proceedings which distinctly concern the Petitioner and the Respondents. As acknowledged by the Applicant unequivocally, it has a pending matter in this court being Makueni ELC Petition No. 15 of 2019 over a similar subject matter. Its presence in these proceedings is of no necessity as its claim is already in progress elsewhere in this court. 6. Secondly, whereas some of its members may have wrongfully been joined to these proceedings by the Petitioner, it would not be an appropriate remedy to further clone the Applicants as interested parties in the suit. An order for joinder only creates parallel proceedings and by parity of reasoning, it defeats the duty of the court to facilitate just and expeditious disposal of cases. Recourse to the Applicant’s complaint with the Petitioner for any party who may have been improperly joined to the petition lies elsewhere within the *Mutunga Rules.* 7. Lastly, the Applicant has not demonstrated the relevance of its inclusion to these proceedings. Having found that it has no personal interest or stake in the Petitioners’ claim, the case it seeks to set out will be an exercise in futility. 8. It therefore remains evident that the Applicant has failed to demonstrate an identifiable and proximate enough stake in the present proceedings which would necessitate an order for joinder. In the end, the Applicant has not met the threshold for joinder as an interested party. The application is devoid of merit is hereby dismissed with costs. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Ndolo for Petitioners/Respondents Ms. Kingu for Mr. Maanzo for 1st Interested Party Ms. Kaunda for Mr. Mogere for 1st Respondent Mr. Maina for 2nd Respondent Court assistant - Kilonzo