FN (Suing as the father and the next friend of MWN Minor) & another v Board of Management Senior Chief Koimange High School & 2 others; National Gay and Lesbian Human Rights Commission (Proposed Interested Party) [2022] KEHC 11893 (KLR)

FN (Suing as the father and the next friend of MWN Minor) & another v Board of Management Senior Chief Koimange High School & 2 others; National Gay and Lesbian Human Rights Commission (Proposed Interested Party) (Petition E004 of 2022) [2022] KEHC 11893 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11893 (KLR)

Republic of Kenya

In the High Court at Kiambu

Petition E004 of 2022

RB Ngetich, J

July 21, 2022

IN THE MATTER OF ARTICLES 2, 3, 10, 19, 20, 22, 27, 28, 43, 47, 50, 53, 165, 258, and 259 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF CHILDREN ACT NO. 8 OF 2001 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, NO. 4 OF 2015 AND IN THE MATTER OF THE AFRICAN CHARTER THE RIGHTS AND WELFARE OF THE CHILD AND IN THE MATTER OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Between

FN (Suing as the father and the next friend of MWN Minor)

1st Petitioner

Legal Resources Foundation

2nd Petitioner

and

Board of Management Senior Chief Koimange High School

1st Respondent

Principal Senior Chief Koinange Girls High SChool

2nd Respondent

Attorney General

3rd Respondent

and

National Gay and Lesbian Human Rights Commission

Proposed Interested Party

Ruling

Introduction 1. This is a ruling on application dated March 9 2022 filed by the intended interested party through a notice of motion application dated March 9, 2022 seeking to be enjoined in the suit.

2. The intended interested party describes itself as an independent organization working with the aim, mission and vision of advancing legal and policy reforms towards equality and full inclusion of sexual gender minorities.

3. The 1st petitioner is a father and next friend of MWM who is a form 4 student in Senior Chief Koinange Girls High School while the 2nd petitioner is a national human right organization registered in Kenya. This petition was filed following expulsion of MWM/minor who was sent out of the school on allegations of being involved in lesbianism and a threat to the school.

4. The petitioner seeks the following orders in the petition: -a.A declaration that the respondent is in violation of articles 3,10,20, 43(f), 47, 50(1) and 53 of the Constitution.b.Compensation for breach of the Constitution.c.A declaration that the actions by the respondents jointly and severally are not in the best interest of the minor.d.An order of certiorari quashing the decisions of the respondent to permanently remove the minor from the school.e.An order of mandamus compelling the respondent to readmit the minor as a student of Senior Chief Koinange Girls High School.f.A mandatory injunction restraining the respondents jointly and severally from interfering with the minor’s studies at Senior Chief Koinange Girls High School.g.Costs of the petition.h.Any other orders that the honorable court may deem just and fit to grant.

Proposed interested party’s application 5. The application for joinder of interested party is not opposed by the petitioners.

6. The proposed interested party averred that it has an identifiable stake or legal interest in the proceedings before the court, and will be directly affected by the orders of this court sought by the petitioner that are the best interest of the minor and therefore interested party is a necessary party to the suit.

7. The application is supported by the annexed affidavit of Njeri Gateru sworn on March 9, 2022. She averred that the mission and vision of the interested party has been achieved through policy legal reforms towards equality and full inclusion of sexual and gender minorities through strategic litigation, legal clinics, research and documentation and urgent action missions and promoted freedom of expression and association by building LGBTIQ.

8. She further averred that the issues canvassed in the petition are so central to the programs and mandate of the proposed interested party and failure to its inclusion will occasion serious prejudice to its interests.

9. The application was opposed by the 1st and 2nd respondent through grounds of opposition filed on May 24, 2022 that the interested party has not set out its personal interest in the claim to warrant to be enjoin.

Applicant’s submissions 10. Counsel for the applicant submitted that the minor was removed from school due to her sexual orientation as per the letter dated November 9, 2021 and the disciplinary action taken on the minor did not warrant the minor to be suspended from school indefinitely; that suspension of the minor on account of lesbianism amount to the violation of her rights.

11. Counsel for the applicant submitted that it has an identifiable interest in the matter as the orders of this petition will be applied mutatis mutandis to the LBGTIQ children in Kenya and specifically those who undergo disciplinary action; that the orders sought in the petition conform to the mission, vision and objectives of the interested party and cited the case of Kenya Medical Laboratory Technicians and Technologists Board & 6 others vs Attorney General & 4 others (2017) eKLR where the court held as follows:-“the true tests lie not so much in an analysis of what are the constituents of the applicant’s rights, but rather in what would be the result on the subject matter of the action if those rights could be established.”

12. Counsel further submitted that the joinder of the interested party is aimed at reducing the discrimination of gay and lesbians as per the directive by cabinet secretary to have lesbians not to be allowed in boarding schools; and in furtherance of the discriminatory proclamation by cabinet secretary education many students from Senior Chief Koinange Girls High school have been suspended indefinitely on ground of sexual orientation.

13. Further that the values of the interested party will promote freedom of expression and association of the LGBTIQ movement in the Kenya culture and urged this court to allow the application and enjoin the interested party in the suit.

1st and 2nd Respondent submissions 14. Counsel for the 1st and 2nd respondents submitted that the interested party has failed to disclose its stake and or legal interest in the proceedings; that the applicants have failed to establish the elements stated in the case of Kenya Medical Laboratory technicians and Technologist Board & 6 others vs Attorney General & 4 others (2017) eKLR where the court laid out the elements to be satisfied as:“a.The intended party must have identifiable stake.b.Legal interest.c.Duty in the proceedingsThe test is not whether the joinder of the person proposed to be added as an interested party would be according to or the wishes of the petitioner or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the petitioner. It is whether the intended interested party has an identifiable stake, or a legal interest or duty in the proceedings”.

15. Counsel further submitted that applicant will not be legally affected by the outcome of the petition and their rights will not therefore be curtailed; that the applicant has not demonstrated to this court how its rights and those of its members will be affected by the decision of this court in a matter that involves the indiscipline of the minor in an institution.

16. Further, that the applicant has not proved the minor was suspended and/or discriminated due to her sexual orientation and the matter before hand does not meet the threshold for public intervention. That it lacks merit and the same ought to be dismissed.

Analysis and determination 17. I have considered grounds of the interested party’s application, averments herein and submissions filed and wish to consider whether the applicant has met the threshold to be enjoined as an interested party.

18. The applicant has averred that the outcome of this petition will greatly affect the interested party and its members.

19. A court should not act in vain in enjoining a party who has no interest in the matter. In the Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] eKLR Justice Munyao Sila in a persuasive decision stated the following in dismissing an application for the applicants to be enjoined to the suit because they purchased the suit property from the plaintiffs’ person“In my view, for one to convince the court that he/she needs to be enjoined to the suit as interested party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A judgment or order in most cases does not only affect the litigants in the matter. It does have ramifications for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in a suit as interested party.In other words, there needs to be a demonstration that the interest of the person goes further than “merely being affected" by the judgment or order. It must be shown that the presence of that person is necessary, so that the issues in the suit may be settled, and that if the person is not enjoined, the court may not be fully equipped to settle the questions in the suit or may be handicapped in one way or another. A joinder may also be allowed if the intended interested party has a claim of his own, which in the circumstances of the matter, needs to be tried, or is convenient to be tried alongside the claims of the incumbent plaintiff and defendant. The threshold for joinder of an interested party should not be too low, or else, this is prone to open doors for busybodies to be joined to proceedings, merely to spectator or confuse the issues in the matter. Apart from the above, whether or not to enjoin a person as an interested party, must be looked at within the context and surrounding circumstances of each particular case.

20. I note from the facts giving rise to the petition that the minor herein was sent out of school on allegation that she was involved in lesbianism and was a threat to the school. The applicant has explained its mandate being to promote and protect the equality and inclusion of LGBTIQ individuals and communities in Kenya and advance their meaningful participation in society.

21. An interested party is one who will be affected by the decisions/declarations of the court when the court pronounces its judgment. The proposed interested party’s argument is that the outcome of this petition will affect other LGBTIQ in the country as it will be applied mutatis mutandis. The applicant’s mandate is to promote protection of the rights of LGBTIQ community. Their argument is that the outcome of this petition will affect treatment of children found in similar circumstances in schools in Kenya.

22. In view of the interested party’s mission, vision and objectives there is no doubt that it has identifiable stake and legal interest or duty in these proceedings. It will therefore be in the interest of justice to allow the proposed interested party participate in this petition. There is no doubt that it is a necessary party in this proceedings.

23. Final Orders: -1. The application dated March 9, 2022 is hereby allowed.2. No orders as to costs.

JUDGMENT DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 21ST DAY OF JULY, 2022. ……………………………RACHEL NGETICHJUDGEIn the Presence of:Kinyua – Court ClerkMr. Mutula for ApplicantMs. Muthoni holding brief for Mrs. Maina for 1st and 2nd RespondentMs. Wamuyu for 3rd RespondentMr. Kanyonge for Petitioner