atherine Nyambura v Director of Public Prosecutions, Inspector General of Police, Isaac Gathungu Wanjohi & Isaiah K. W. Mutonyi [2018] KEHC 3401 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KAJIADO

PETITION NO. 2 OF 2018

CATHERINE NYAMBURA........................................................................................…PETITIONER

Versus

DIRECTOR OF PUBLIC PROSECUTIONS.....................................................1ST RESPONDENT

INSPECTOR GENERAL OF POLICE...............................................................2ND RESPONDENT

ENG. ISAAC GATHUNGU WANJOHI..................1ST APPLICANT/1ST INTERESTED PARTY

ENG. ISAIAH K. W.  MUTONYI.....2ND APPLICANT/2ND INTENDEDINTERESTED PARTY

RULING

In the notice of motion dated 30/4/2018 stated to be brought under Rule 7(1) and Rules 19 of the Constitution of Kenya Protection of Rights and Procedural Freedoms Practice and Procedure Rules 2013. The application seeks the following orders:

(1) That this Honourable Court be pleased to order that the Applicants herein be enjoinedas interested parties in this Petition

(2) That this Honourable Court be pleased to order that the Petitioner and the Respondentsdo serve on the Applicants all the pleadings to date touching this Petition

(3) That this Honourable Court be pleased to order that in relation to the Petition, theApplicants do enjoy analogous rights granted to them by the Victims Protection Act,2014

(4)  That the costs of this Application be in the cause.

The cognizance of the application for the applicant to be enjoined as interested parties is clearly expressed in the supporting affidavit by Eng. Isaac Gathungu Wanjohi. In the matter at hand, Eng. Wanjohi deposes that the initiated investigations and allegations against the petitioner involve suit land referenced as LR Kajiado/Kisaju/1177 in which he holds a valid title in joint names of himself and Eng. Isaiah W. Mutunyi. He further depones that the same parcel of land is also pending determination before Kajiado ELC in Suit No. 64 of 2017. The pre-requisite by the applicants avers Eng. Wanjohi to be joined as interested parties is to accord them an opportunity to ventilate the issues in respect of the same suit property subject matter in the petition.

The petitioner vehemently opposed this notice of motion vide the grounds of opposition dated 7/6/2018. As set forth the petitioner stated that the applicants have not met the legal elements for them to be allowed as interested parties in the pending petition. That the application though invoking the provisions of the Victim Protection Act 2014 and Criminal Procedure Code the orders sought are an abuse of the court process.

Submissions by Counsel for the Applicants

Mr. Kamau Kuria on behalf of the applicants submitted and gave a summary of facts posited in the affidavits identifying the issues why the court should exercise discretion in their favour. Mr. Kamau asked the court to consider the application in light of the facts of the petition and that the petitioners would suffer no prejudice in the event the orders are granted. In support of the notice of motion Mr. Kamau exclusively placed reliance on the various authorities and Scholarly Legal Texts to show that the applicants have a genuine claim to be enjoined as Interested parties to the petition: (a) James Ndungu Wa Wambu and the Land Registrar Kajiado District & 8 Others C.A. No. 85 of 1992, (b) Leonard Maina Mwangi v Director of Public Prosecutions & 2 Others [2017] eKLR, (c)  Ramanoop v Attorney General (2004) Law Reports of the Commonwealth, 1670, (d) Macharia & Anor v Attorney General & Anor [2001] KLR 448,  (e ) John Muritu and Susan Wanjiru Muritu v Attorney General, High Court of Kenya at Nairobi Misc. Civil Application No. 223 of 2000, (f) Eunice Khalwali Miima v Director of Prosecutions & 2 Others [2017] eKLR.

On behalf of the petitioner Mr. Nyandieka relied on the grounds of opposition and devoted his arguments to the constitutional provisions and the need to demonstrate that the interests of the petitioner would be harmed by allowing the applicants join the proceedings. Mr. Nyandieka further emphasized by submitting that the motion by the applicant is improper because the petition seeks writs of petition and certiorari which does not delve into the merits of the case. In support of the legal proposition not to grant the orders sought Mr. Nyandieka placed reliance in the following authorities: (1) The Constitution of Kenya 2010, (2) The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Pracie & Procedure Rules, 2013 (3) Black’s Law Dictionary 9th Edition (4) Trusted Society and Human Rights Alliance vs Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, (2014) eKLR (5) Francis Karioki Muruatetu & Another V Republic & 5 Others [2016] eKLR (6) Japhet Muroko & Another V Independent Electoral & Boundaries Commission (IEBC) & 3 Others (2017) eKLR

Background

This was a petition by Catherine Nyambura to the High Court for writs of prohibition, certiorari and an order for compensation directed at the Director of Public Prosecutions and Inspector General of Police. The writs are aimed at prohibiting the respondents from investigating, charging and prosecuting the petitioner on criminal allegations in respect of LR Number Kajiado/Kisaju 1177. Further in determination of the petition the court does quash criminal proceedings commenced in reference to Criminal Case No. 343 of 2018 currently proceeding before the Magistrate court.

During the pendency of the Petition and an interlocutory motion dated 30/4/2018 by Eng. Isaac Wanjohi and Eng. Isaiah Mutonyi sought leave of the court to be enjoined as Interested Parties to the main petition. Their application under Certificate of Urgency was directed to be served upon the Petitioner and the respondent respectively. On 30/5/2018 learned counsel Mr. Akula for the State conceded to the notice of motion by the Interested Parties whereas Mr. Nyandieka sought leave to filed a replying affidavit or grounds in opposition to the application. That leave led to a scheduled hearing for the Interested Party motion on 27/6/2018.  The proceedings in this day do not seem to have been commenced with regard to the Interested Party notice of motion as fresh dates were taken in the registry scheduling the hearing to the 19th September 2018. The record bears me witness that the application by the Interested Party seemed to have remained unresolved as between the petitioner and the Interested Party with no plausible explanation.

Determination on notice of motion

My task as I understand it is to consider the motion by the Interested Party with a view to make a finding whether it falls within the provisions of order 1 Rule 8, 9 and 10 of the Civil Procedure Rules.

The salient features of order 1 are that a party or claimant may be permitted as a plaintiff or defendant in the same proceedings from any claims the plaintiff has against the defendant. In the same claim a party is seeking to be enjoined as a plaintiff or defendant may be sued in the same proceedings. That upon application two or more persons may be allowed by the court to join the already filed suit by the plaintiff or the defendant where they assert that any claim to the relief as set out arises from the same transaction or occurrence rendering them to invoke the fair Administration Act on notice and opportunity to be heard before judgement.

It is also relevant and significant from the averments and motion filed to be allowed as an interested party a common question of law or fact be ascertained in the existing proceedings. The applicant account side of the story in joinder proceedings in the circumstances ought to demonstrate that his presence is necessary to enable the court to adjudicate effectively and completely in the issues in the proceedings he seeks to join as an interested party.

In examining the provisions or order 1 of the Civil Procedure Rules the court is not permitted to allow a party to join any proceeding on a wholly unclear and dissimilar claim.

On the other hand, there will be an inquiry as to whether the proposed interested party presence before the court is required even though the originator of the suit would prefer not to have him allowed to participate in the proceedings.

I start from the premise that the rules of procedure as to filing and responses to the application have been complied with by the parties. It is more important to take cognizance to the objection raised by Mr. Nyandieka for the petitioner in regard to certain filings of material by the interested party which had not been served upon him.

My answer to the concern raised by Mr. Nyandieka at this interlocutory stage is to the effect that the petition is yet to be resolved on the merits on the basis of the law and facts.  That what the interested party motion demands of this court is for them to be allowed to participate in the proceedings as between the petitioner and the respondents. According to the record the proceedings before the Deputy Registrar on 31/8/2018 should have dealt with any issues as to non-service of a particular document or affidavit to pave way for the hearing and determination of the application.

In considering this application, this court has to bear in mind that in resolving cases procedural barriers that stand on the way of the resolution of cases on the merits ought to be thwarted to give substantial justice a chance. From the record there is no omission of material which would adversely affect the adjudication of this motion as between the petitioner and the interested party

It should not be lost that procedural rules serve only two purposes, either to provide orderliness in adjudication of the business of the court as expressly established under the overriding objective in section 1A and 1B of the Civil Procedure Act. To this optimum utilization of resources as to time, maintenance of the integrity and dignity of the court and as to secure the right to a fair hearing for all the parties to a dispute. Secondly, is to ensure that each party to a claim has had the opportunity to present his or her part of the evidence or arguments to the case.  These two purposes render me to consider one fundamental question whether the Interested Parties notice of motion dated 30/4/2018 should be allowed and orders to that effect made accordingly.

I have appraised the factual matrix of this claim from the perspective of the petitioner and that of the applicants with both counsels written submissions. Through these submissions they had an opportunity to present their rival arguments on the application.

The principles and rules governing proceedings on joinder and misjoinder are most clearly explained under order 1 Rule 8,9 and 10 of the Civil Procedure Rules. Further the power to exercise discretion on joinder of an interested party has been articulated by the Supreme Court in the case of Francis Karioki Muruatetu Ltd & Another V Republic & 5 Others in Petition No. 15/16 of 2016 eKLR where the court identified the following elements to be considered in granting the application to include the following:

(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.

Further, in addition besides Order 1 Rule (10) of the Civil Procedure Rules, Constitution of Kenya (Protection of Rights and Fundamental freedoms practice and Procedure Rules 2013 Rule 2 defines 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 proceeding or may not be directly involved in the litigations.”

I would also answer to the above question by making reference to the case of Ruth Wambo Muturi V Joseph Karisa Katsoma & 4 Others 2007 eKLR where the court held that: “ To my mind order 1 Rule 8 does two things: One it lays down the practice to be followed in cases where there are numerous persons having the same interest in one suit and where one such person is seeking or being sued on behalf of all: Two, it contains a direction as to the manner in which the rights of all such persons must be safe guarded. It is couched in mandatory terms. The notice of the instruction of the suit must be given to all parties interested in the suit. That is to say subject matter”.

The case of Mai Mahiu Kijabe/Longonot Co. Ltd V Ayub Mugo Njoroge & 5 Others Civil Suit No. 1672 of 2001 eKLR laid down the following principle as regards joinder under order 1 Rule 8. : “It is a cardinal rule procedural that any party who stands to be directly affected by any orders that may be in any such and whose participation is necessary in a suit for effective adjudication of the matters in issue ought to be made a party in the suit or at least be notified about the existence of the suit.”

In support of the application, I find these principles do apply to the circumstances and facts of this case. As I see it the emphasis of the main dispute is not the underlying practical circumstances of granting orders of joinder as interested party. A focus on the interested party application is one which supports the well-defined principles for purposes of admitting a party to any judicial proceedings. The central element being the nature of the application, and the evidential material that the applicant has a recognizable legal or equitable right in the claim pending determination before a tribunal or court.

When the court sits to adjudicate the application of a joinder it should not lose sight of the provisions under Article 48 of the constitution which provides for access to justice to all persons governed by this constitution. The scope of joinder of parties Under Order 1 of Rule 10 of the Civil Procedure Rules as read with Rule 2 of the constitutional procedure and practice is consistent with right to a fair hearing and due process.

In the present case contrary to the submissions by Mr. Nyandieka for the petitioner there are substantial intersection of facts between the averment in the affidavit by the Petitioners and that of the Interested Party. This alone is a ground that demonstrates that the applicant has brought himself within the definition of Rule 2 of Constitution of Kenya (Protection of Rights and Fundamental freedoms practice and Procedure Rules. What Mr. Nyandieka has failed to show in his submissions is that there are elements in the petition that would be defeated or suffer suppression for reasons of joinder of the applicants. It is not in dispute that the petition seeks writs of prohibition and certiorari against the respondent in respect to infringements and violation of her rights under the Constitution. There is no evidence that the applicant being allowed to join the proceedings they will crowd the arena in a manner that will occasion prejudice or injustice to the petitioner.

One of the key question to be answered in the petition is whether the respondents in exercise of their authority conferred to them by the constitution acted fairly in instituting and prosecuting the Petitioners in Criminal Case 343 of 2018 at Kajiado Magistrate’s Court. I am convinced that from the facts of this petition, the court would not delve into the merits of establishing who owns a better title to land between the applicant and the petitioners in respect to parcel No. Kajiado/Kisaju 1177. The adjudication of the competing interests as to who is the rightful registered owner of the above title is a matter of the ELC Court. However, from the foregoing a common question of law or fact may arise in the proceedings which the interested party has a stake.

I hold the view that in an application to join proceedings as a party it is not the business of the court to consider the merits of the factual basis for the proposed joinder. The settled principle of law is that if in the opinion of the court the applicant is a proper or necessary party within the meaning of Order 1 Rule 9 and 10 of the Civil Procedure Rules he/she must be admitted into the proceedings.

In this motion for joinder I don’t expect the applicants to file a substantive suit or defence as defined in the Civil Procedure Rules. The right to joinder by the applicants is therefore restricted to filing affidavits for the court to have an overview on historical background and the current status in respect of the dispute touching on LR. Kajiado/Kisaju 1177. Secondly, whether joinder will result in the complete settlement of the questions involving the petition. Thirdly, to answer to the question how their rights would otherwise be adversely affected in law and therefore need to be enjoined to these proceedings.

For the reasons stated the grant of this notice of motion in my view has met the threshold test under Order 1 Rule 8 that sufficient cause exist to grant the order to join the proceedings. In the same view the path of justice is such that no man shall be sent out of court or denied an opportunity to ventilate issues which adversely may affect his rights. Finally, declining the application would go against the fundamental principles of natural justice.

The upshot of all these, I am satisfied that the applicants are indispensable and necessary parties to be joined in the pending petition. Accordingly, the notice of motion dated 30th April 2018 is hereby allowed in its entirety. Costs of this application be in the cause.

Dated, delivered and signed in open court at Kajiado this 3rd day of October 2018.

...........................

R. NYAKUNDI

JUDGE

Representation

-  Mr. Ondieki for Mr. Nyandieka for the Petitioner

- Mr. Ndung’u for the 1st & 2nd applicants – Present