https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8513

Women and Youth Against Aids and Poverty & 3 others v Director of Public Prosecutions & 4 others (Miscellaneous Application E004 of 2025) [2026] KEHC 8513 (KLR) (Judicial Review) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 8513 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Judicial Review Miscellaneous Application E004 of 2025 JM Chigiti, J June 4, 2026 IN THE MATTER OF APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI & PROHIBITION AND IN THE MATTER OF IN THE MATTER OF VIOLATION OF ARTICLES 19, 20, 21, 22, 25, 26, 27, 28, 29, 39, 43,47, 48, 49,50 AND 232 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: ABUSE OF CRIMINAL JUSTICE SYSTEM, ARBITRAL PROSECUTION ABUSE OF OFFICE AND PURE DISCRIMINATION; AND IN THE MATTER OF: ​AN APPLICATION FOR LEAVE TO INSTITUTE PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW Between Women and Youth Against Aids and Poverty 1st Ex parte Applicant Dr Elias Kemboikorir 2nd Ex parte Applicant Halma Samson Mwongera 3rd Ex parte Applicant Maureen Muthoni Mwongera 4th Ex parte Applicant and Director of Public Prosecutions 1st Respondent The Directorate of Criminal Investigations 2nd Respondent The Chief Magistrate’s Courts in Milimani 3rd Respondent and Talos Group Kenya Limited 1st Interested Party Ahsa Limited 2nd Interested Party Ruling 1.The application that comes up for determination is the one dated the Application dated 17th June 2025, wherein the applicant is seeking Orders. That:i.This Honourable court be pleased to grant orders to allow the Intended Interested Party to be enjoined in these proceedings as an Interested Party.ii.The orders issued on Prayers 2 and 3 of the Ex Parte Applicants’ application dated 10th February,2025 and be 9th January,2025 and be varied or set aside insofar as they affect the rights of the Intended Interested Party.iii.Subsequent to 2 above, the Honourable court do issue, that Milimani Magistrate’s MCCR/E804 of 2023-Republic Vs Elius Kemboi and Halima Samson be expunged from this court’s proceedings for being sub judice.iv.The costs of this application be provided for. 2.The applicant argues that The Intended Interested Party is the complainant in Criminal Cases No. E804 of 2025 against the Ex Parte Applicants which relate to fraud and breach of contract. 3.It argues that the orders issued by this Court staying proceedings in the above case directly affects our right to pursue justice. 4.I have been reliably informed by my advocate that the issues brought forth in this Judicial Review Application relating to Criminal Cases No. E804 of 2025 has been previously settled in JR. Misc Appl No. E112 of 2023. (Annexed herewith and marked SAS – 2) is a copy of judgement issued by this honourable court dated 3rd April 2024). 5.This honourable court in stated judgement allowed the criminal matter E862 of 2023 to proceed concurrently with the civil suit lodged by the intended interested party. Criminal matter E862 of 2023 was consolidated with other related matters and is now E804 of 2023 hence the previous file was closed 6.The intended interested party was not served with this application nor were they given an opportunity to be heard. The Applicants Submissions; 7.It submits that Courts have consistently held that a party should be enjoined where, they have a direct and identifiable legal interest in the matter, their rights or obligations may be affected by the outcome and their participation will assist the court in the fair and just determination of the issues. 8.Joinder of parties in judicial proceedings, including Judicial Review, is guided by the principle that a party who stands to be directly affected by an order must be heard. 9.The Supreme Court in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR held that an interested party is one with a legitimate identifiable stake in the proceedings. 10.In Francis Karioki Muruatetu v Republic (2016) eKLR, the Court held that an interested party must demonstrate, a personal and identifiable stake in the matter, prejudice that will be suffered if excluded, the value their participation adds to the proceedings. 11.The Intended Interested Party is the complainant in Criminal Case E804/2023, that was consolidated with MCCR 862/2023, which this Court had expressly allowed to proceed. 12.The orders issued directly paralyze the Intended Interested Party’s pursuit of justice. 13.It submits that the Intended Interested Party satisfies the above test because as follows;a.It is the complainant in Criminal Case E804 of 2023, the very case stayed by this Court.b.The alleged fraud and breach of contract were committed against the Intended Interested Party, making it the direct victim.c.The stay orders paralyze its rights to have its complaint investigated and prosecuted.d.Any judicial decision affecting the criminal process will directly affect its property rights, commercial interests and access to justice. 14.It is clear that the Intended Interested Party is not a mere peripheral observer but a central figure whose complaint forms the basis of the criminal allegations, hence, joinder is not only appropriate but necessary. 15.It is trite that no adverse orders may be issued against a person without being afforded the right to be heard. This principle is grounded in, Article 47, Right to fair administrative action, Article 50(1) , Right to be heard, Section 4(3) of the Fair Administrative Action Act. 16.It submits that the ex-parte Applicants obtained orders staying the criminal proceedings without disclosing, the existence of the Intended Interested Party as complainant, that the criminal matter had already been subject to Judicial Review and determined, that MCCR/E804/2023 is a consolidated file replacing MCCR 862/2023, which this Court had expressly allowed to proceed. 17.This constitutes material non-disclosure and amounts to an abuse of court process. In Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 Others (1998), the Court held that a party who obtains ex parte orders through non-disclosure must not be allowed to benefit from them, the ex parte orders should therefore be set aside. 18.Section 6 of the Civil Procedure Act prohibits a court from entertaining a matter that is sub judice, that is, one already directly in issue before a competent court. 19.The Applicants previously filed Judicial Review Misc. Application No. E112 of 2023, challenging the same criminal proceedings. 20.This Court delivered a detailed judgment on 3rd April 2024, holding:a.The Applicants’ challenge to their prosecution lacked merit;b.The DPP was acting within the law;c.The criminal process should proceed without interference. 21.The only change since then is the administrative consolidation of the file to become MCCR/E804/2023, a fact clearly explained in the supporting affidavit. 22.By bringing this fresh JR application raising the same issues, the ex-Applicants are, relitigating a concluded matter, forum shopping, and abusing court process. 23.In Republic v Paul Kihara & Judicial Service Commission ex parte Law Society of Kenya (2020), the Court reaffirmed that JR cannot be used to relitigate matters already decided. 24.The doctrine of res judicata applies to Judicial Review, as held in John Florence Maritime Services v Cabinet Secretary Transport (SCOK, 2021). 25.The Applicants’ Motion is therefore incompetent, an abuse of the court process and the court should not entertain such parties from circumventing the principle of finality in litigation. 26.It submits that the Ex-Parte Applicants’ Grounds of Opposition, dated 17th November, 2025, are fatally defective for failing to meet the minimum legal threshold required under Order 51 Rule 14 of the Civil Procedure Rules and established jurisprudence. In particular. 27.The Ex-Parte Applicants have not placed before the Court any affidavit, document, or material evidence to rebut, counter, or even respond to the factual basis laid out in the Applicant’s Motion. Mere assertions or blanket statements cannot substitute evidence, particularly where serious issues of law, procedure, and jurisdiction have been raised. 28.The Applicant’s plea for joinder and for vacating/extending interim orders is grounded in specific factual circumstances demonstrating direct prejudice. The Grounds of Opposition completely ignore these facts. A party who does not respond to critical facts is deemed to admit them. 29.Without evidence, the Grounds stand as “general objections,” which have repeatedly been held by superior courts to be inadequate. Judicial review proceedings are driven by evidence and the record; the Ex-Parte Applicants have provided neither. 30.The Ex-Parte Applicants invoke Sections 6 and 7 of the Civil Procedure Act (sub judice and res judicata) but fail to demonstrate the mandatory elements required, identity of parties, issues, and subject matter. Unsupported references to statutory provisions do not cure the legal deficiency. 31.The Muruatetu principles place duty on a party seeking joinder to demonstrate,a.a proximate interest,b.clear stake in the proceedings, andc.key prejudice if excluded. 32.The Grounds of Opposition mischaracterize this test and do not show how the intended interested party failed to fulfill the ground under the Muruatetu principles, in the contrast, the intended interested party have fully demonstrated the connection between the Muruatetu principle on joinder on parties, and that joinder of the AHSA limited is very necessary in the final determination of this matter. The Ex-parte Applicant’s case; 33.He opposes the application arguing that allowing the application will amount to changing the nature of judicial review. 34.The exparte Applicant also raised the following grounds that the Intended Interested Party has not met the legal threshold for joinder, having failed to demonstrate any identifiable stake, prejudice, or relevance to the determination of these Judicial Review proceedings as required under Rule 2 of the Mutunga Rules and the principles in Muruatetu. 35.It also argues that the applicant has not demonstrated any a nexus between itself and the Ex-Parte Applicants to justify its participation, nor has it shown how its rights would be violated if not joined. 36.The Applicant's contention that the orders of 9th January 2025 and 10th February 2025 affect its rights is unsubstantiated. 37.It argues that the prayers to vary or set aside interim orders previously directed to be heard inter partes are premature, oppressive and contrary to the principles of natural justice, as they seek to defeat the Ex-Parte Applicants’ right to be heard under Articles 47, 48 and 50 of the Constitution. 38.And aimed at defeating substantive applications that are yet to be heard, which is an abuse of the court process and an attempt to circumvent the court’s earlier directions. 39.It believes that the Applicant’s plea that MCCR/E804/2023 be expunged from these proceedings for being sub judice is legally untenable, 40.The Applicant having wholly misconstrued the provisions of Sections 6 and 7 of the Civil Procedure Act, and having failed to demonstrate identity of parties, issues and subject matter between JR E112 of 2023 and the present proceedings. 41.The Applicant's allegations on sub judice are misplaced, the earlier Judicial Review matter (JR E112 of 2023) having involved different issues and having determined separate questions of law, and therefore cannot preclude the present proceedings. 42.the term “enjoined” reveals that the Applicant does not in fact seek participation but seeks to obstruct the Court from determining the Ex-Parte Applicants’ pending applications. 43.The Applicant has has failed to produce any contractual documents or evidence supporting its purported complaint. 44.The exparte Applicant argues that the applicants dispute is private in nature. Analysis and Determination; 45.The issues for determination are;1.Whether the application for joinder has merit.2.Whether the applicant has made out a case for the grant of the prayer that the orders issued on Prayers 2 and 3 of the Ex Parte Applicants’ application dated 10th February,2025 and be 9th January,2025 and be varied or set aside insofar as they affect the rights of the Intended Interested Party. 46.Whether the application for joinder has merit; Order 41 Rule 5 of the Civil Procedure Rules 2010, makes reference to the term ‘interested party’ as hereunder:“'The court 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,” 47.Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013describes an ‘Interested Party’ as follows:“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". 48.In Republic v Kwale County Lands Registrar & another; Abshir & 2 others the court held as follows:a.Whether the joinder/non-joinder will assist the court in the effective and effectual determination of all questions arising in the suit.b.Whether the party sought to be joined or removed has any identifiable stake, legal interest or duty in the proceedings.c.Whether the joinder/non-joinder is likely to prejudice the said party. 49.In the application before this court, the applicant is the complainant which donates to it a clear and identifiable stake in the suit in this matter. 50.In Francis Karioki Muruatetu v Republic (2016) eKLR, the Court held that an interested party must demonstrate, a personal and identifiable stake in the matter, prejudice that will be suffered if excluded, the value their participation adds to the proceedings. 51.According to the applicant the alleged fraud and breach of contract were committed against it. No, doubt this on its own shows that it is going to be affected by the outcome. 52.The argument by the applicant that any judicial decision affecting the criminal process will directly affect its property rights, commercial interests and access to justice is a valid concern. 53.The court finds if the applicant is not made a party to the suit, it will suffer prejudice. 54.From the foregoing, and without getting into the merits the parties’ cases, this court is satisfied that the applicant has a stake and an identifiable interest as the complainant in the issues before this court. 55.The next issue is whether the applicant has made out a case for the grant of the prayer that the orders issued on Prayers 2 and 3 of the Ex Parte Applicants’ application dated 10th February,2025 and be 9th January,2025 and be varied or set aside insofar as they affect the rights of the Intended Interested Party. 56.Put differently, the court shall address its mind to the question whether an interested party can apply for the discharge of orders that were issued as sought by the applicant herein. 57.In the case of Francis Karioki Muruatetu & Another v. Republic & 5 others, SC Petition 15 & 16 of 2015 (consolidated); [2016] eKLR, it was held that;“Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties’ before the Court. The determination of any matter will always have a direct effect on the primary/principal parties. Third parties in Petition No. 9 (E011) of 2022 admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the Court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us.Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the Court will always remain the issues as presented by the principal parties, or as framed by the Court from the pleadings and submissions of the principal parties.” [our emphasis](12)Inevitably it must follow that the dispute has always revolved around the re-opening of criminal investigations into SCB and its directors by the DPP, being the primary parties. The requisitions were issued by the latter against the former. Essentially, before both superior courts below, the contest has been the prosecutorial mandate of the DPP vis-à-vis the rights of the 3rd to 11th respondents.The petitioners now want to advance their rights which have never been the subject of judicial determination before this stage. Equally, the rights of the petitioners do not speak to the core issue which has been the exercise of the prosecutorial powers of the DPP. The petitioners’ stake in the proceedings has throughout remained peripheral and cannot override the stake of the primary parties, who appear not to have been aggrieved.(13)Restating the words in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 Others, Civil Appeal No. 290 of 2012; [2013] eKLR that:“A suit in Court is a ‘solemn’ process, ‘owned’ solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined as an interested party, this new party cannot be heard to seek to strike out the suit, on the grounds of defective pleadings.”(14)Ultimately, we respectfully agree that the petitioners, though interested parties before the superior courts below, cannot, at this juncture, have overriding interests above and beyond the primary parties or mutate from having a peripheral stake into central core parties complete with freshly and new formulated constitutional grounds that were not the issues determined by the court appealed from. Just like we stated in Methodist Church in Kenya v. Mohamed Fugicha & 3 others, SC Petition 16 of 2016; [2019] eKLR. 58.In the application before me, this court is bound by the principles as settled by the Supreme Court in the above cases. Having been made an interested party in this suit, The applicant as an interested party cannot succeed in varying and setting aside the orders as prayed. 59.Consequently, the prayer that Subsequent to 2 above, the Honourable court do issue, that Milimani Magistrate’s MCCR/E804 of 2023-Republic Vs Elius Kemboi and Halima Samson be expunged from this court’s proceedings for being sub judice cannot be granted. Disposition; 60.Invariably, the determination of the real issues in controversy between the Exparte applicant, the respondent and the interested party will be best and conclusively settled if all concerned parties are given a chance to present their respective cases before the court. 61.The joinder/non-joinder will assist the court in the effective and effectual determination of all questions arising in the suit. 62.This finding will not only prevent duplication of efforts but also allow the court to determine the substantive reliefs in the suits and all common issues of fact and law which arise among the parties.Order:i.The applicant is hereby made an interested party to this suit.ii.The exparte applicant and the Respondent shall serve the interested party with their respective pleadings within 7 days.iii.The interested party shall file and serve it's replying affidavit within 14 days thereafter.iv.The ex parte applicant shall thereafter have leave to file and serve a supplementary affidavit within 7 days of service.v.Prayers 2 and 3 are declined.vi.The matter shall be mentioned on 24.9.26 to report compliance.vii.Costs shall be in the cause. DATED, SIGNED AND DELIVERED IN COURT AT ELDORET THIS 4TH DAY OF JUNE 2026.…………………………………JOHN CHIGITI (SC)JUDGE