[2022] KEHC 10152 (KLR)

Wangari v Attorney General & 2 others; Kaigi General Contractors Limited (Applicant) (Petition E001 of 2020) [2022] KEHC 10152 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10152 (KLR)

Republic of Kenya

In the High Court at Embu

Petition E001 of 2020

LM Njuguna, J

May 11, 2022

Between

Vincent Njoroge Wangari

Petitioner

and

Attorney General

1st Respondent

Director of Criminal Investigations

2nd Respondent

Inspector General of Police

3rd Respondent

and

Kaigi General Contractors Limited

Applicant

Ruling

1. The application before this court is a notice of motion dated 27. 10. 2020 wherein the applicant seeks before this court orders that:i.The Honourable court be pleased to enjoin Kaigi General Contractors Limited as an interested party in the Petition herein.ii.The Honorable Court be pleased to give such further reliefs as it may deem fit and just to.

2. The application is premised on the grounds on its face and it’s supported by the annexed affidavit sworn by James Muchangi Gachemi. In a nutshell, it is the applicant’s case that he is the complainant in the case reported against the petitioner at Runyenjes Police Station. That the complaint relates to theft of his Catepillar Bulldozer D6R registration number KHMA 324H whereby the petitioner converted the same to his own use without the applicant’s consent. That upon recovery of the said Catepillar and with the help of the police from Runyenjes Police Station, it was discovered that the same had been unlawfully and maliciously damaged by the petitioner which damage was assessed at Kshs. 2,002,788. 25. That the applicant recorded a statement with the police and six independent witnesses and when he made a follow up, he was informed that the petitioner had been issued with an order preventing the police from arresting and charging him till the petition herein is heard and determined but the applicant had not been served with the petition pursuant to which the said order was issued.

3. It was his case that his intention to pursue his criminal case should not bar him from seeking compensation for loss of user of the Catepillar and the damages occasioned to it. Reliance was made inter alia on Section 193 A of the Criminal Procedure Code. That the applicant stated that he does not oppose the grant of anticipatory bail to the petitioner but opposes the delay or termination of the intended criminal case. In the end, he sought before this court to be enjoined in the proceedings so as to participate in the prosecution of the said petition.

4. The petitioner/respondent filed the affidavit dated 25. 05. 2021 wherein he deponed that the petition that he had filed sought anticipatory bail from the imminent police arrest and that this being his constitutional right, the applicant has no business being enjoined in the matter. That the petitioner has no claim against the applicant and hence enjoining him would be a waste of court’s time as the applicant is not involved in the prosecution process. He deponed that the matter had been overtaken by events given that the prosecution directed that this matter is not a criminal matter but rather, it is civil. That this being a petition, it should not and cannot be used to claim damages as pleaded in the application. It was his case that if the prayers sought are granted, he stands to suffer as his rights have been continuously infringed by the respondent.

5. The parties took directions that the application be canvassed by way of written submissions. The applicant submitted that the petition herein resulted from a pending complaint that the applicant has against the petitioner. That the complaint is still pending before the law enforcers and/or the respondents herein. Reliance was made on the case of Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others & Michael Wainana Mwaura (as amicus curiae) [2017] eKLR. It was submitted that the applicant herein is the complainant in the matter in which the petitioner is seeking anticipatory bail and the complaint relates to the theft of Caterpillar which the petitioner converted for his own use without the applicant’s consent.

6. The respondents on the other hand submitted that though the applicant reported the matter to the police, he should not be enjoined in these proceedings as he is not a party to this petition as the same is for violation and infringement of the petitioner’s rights. Reliance was made on Order 1 Rule 10 (2) of the Civil Procedure Rules. It was submitted that the applicant has not shown any stake in the proceedings herein since the petitioner has no claim against him. That the application is intended to introduce a new cause of action which has no relevance to the proceedings herein and the same is misconceived.

7. I have considered the application herein, the respondent’s response and the respective submissions filed by the parties herein and I find that the main issue for determination is whether the application herein is merited.

8. Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines 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 be directly involved in the litigation.

9. Order 1 Rule (10) (2) of the Civil procedure Rules empowers the court, at any stage of the proceedings, upon application by either party or suo moto, to order the name of a person who ought to have been joined or whose presence before the court is necessary to be enjoined for the court to effectively and completely adjudicate upon and settle all questions involved in the suit, to be added as a party.

10. The threshold for joinder was set out in the case of Francis Karioki Muruatetu & Another v Republic & 5 others in Petition 15 as consolidated with 16 of 2013[2016] eKLR. The court held that the applicant 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.

11. Similarly, in the case of Trusted Society of Human Rights Alliance v Mumo Matemu[2014] eKLR, the Supreme Court held that:“An interested party is one who has a stake in the proceedings, though he or she was not a 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 herself appears in the proceedings, and champion his or her cause.’’

12. Therefore, joinder of parties is permitted by law and can be done at any stage of the proceedings; but joinder of parties may be refused where such joinder will lead to practical problems of handling the existing cause of action or will occasion unnecessary delay or costs on the parties in the suit.

13. Joinder of parties will be declined where the cause of action being proposed or the relief sought is incompatible to, or totally different from existing cause of action or relief. The determining factor in joinder of parties is that common question of fact or law would arise between the existing and the intended parties. This is the test that was applied by F. Gikonyo J. in the case of Lucy Nungari Ngigi & 128 others v National Bank of Kenya Limited and another in which, the court was of the view that accordingly, to determine the real issues in dispute among all the parties, the intended respondents must be enjoined.

14. In my view, in deciding an application for joinder, the court must exercise a liberal approach so as not to shut out a genuine litigant who is effectively interested or is bound by the outcome of the suit. However, the court must guard against a frivolous or vexatious litigant whose sole motivation is to complicate and confuse issues that are before court for determination.

15. As the Court held in Judicial Service Commission v The Speaker of the National Assembly & Another Petition No. 518 of 2013:“The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2012, defines an interested party as “a person or entity that has an identifiable stake or legal interest in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation”…. He is a person with an identifiable stake or legal interest in the proceedings hence may not be said to be wholly non-partisan as he is likely to urge the Court to make a determination favourable to his stake in the proceedings…

16. The proposed interested party has argued that he is the owner of the Catepillar Bulldozer D6R which he had given to the petitioner herein and while it was under his care, he converted it to his own use without the applicant’s consent. I do note that the Office of the Director of Public Prosecutions wrote a letter dated 16th December, 2020 advising Runyenjes Police Station to close the file as no criminal offence had been disclosed and recommended that the complainant should pursue a legal recourse in a Civil Suit for compensation. Section 193 A of the Criminal Procedure Code addresses the concurrency of criminal and civil proceedings to the effect that, notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.

17. In determining whether the 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 the constituents of the applicant’s rights are, but rather in what would be the result on the subject matter of the action if those rights could be established.

18. The court has carefully perused the application herein and the Petition dated 7th September, 2020 and the orders sought therein. In the Petition, the Petitioner seeks to be granted anticipatory bail pending arrest or charge. Further, he has sought an injunction and conservatory orders restraining the Respondents or their servants from arresting, detaining, harassing, or otherwise threatening him with arrest over matters related to the plant belonging to Kaigi General Contractors. In his supporting affidavit, the applicant in paragraph 7 depones that an order has already been issued restraining the respondents from charging the Petitioner until the Petition is finalized.

19. In their replying affidavit, the respondents depones that the petitioner’s petition being a petition for anticipatory bail and protection of his rights, the applicant has no legal interest in it. Further that once a complaint has been made to the police, it is their duty to investigate the same and the complainant should not be a party to the investigations. I fully concur with the Respondents in that regard.

20. From the above analysis, I am satisfied that the applicant has not demonstrated a “legitimate interest” in the Petition. The presence and participation of the applicant/proposed interested party in these proceedings is not necessary as he has no role to play in the investigations.

21. In the circumstances aforesaid, I hereby dismiss the application with costs to the respondents.

22. It is so ordered.

DELIVERED DATED AND SIGNED AT EMBU THIS 11TH DAY OF MAY, 2022. L.NJUGUNAJUDGE……………………………………………… for the Petitioner……………………………………………… for the Respondents