Kioko v Yusuf (Sued as the Retuning Officer, Mombasa) & 3 others [2022] KEHC 11451 (KLR)

Kioko v Yusuf (Sued as the Retuning Officer, Mombasa) & 3 others (Petition E027 of 2022) [2022] KEHC 11451 (KLR) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11451 (KLR)

Republic of Kenya

In the High Court at Mombasa

Petition E027 of 2022

OA Sewe, SM Githinji & A. Ong’injo, JJ

July 5, 2022

Between

Mike Sonko Mbuvi Gideon Kioko

Petitioner

and

Swalhah Imbrahim Yusuf (Sued as the Retuning Officer, Mombasa)

1st Respondent

IEBC Dispute Resolution Committee

2nd Respondent

Independent Electoral and Boundaries Commission

3rd Respondent

Wiper Democratic Movement

4th Respondent

Ruling

1. The application dated June 24, 2022 was filed herein on July 4, 2022 under article 22 and 23 of the Constitution of Kenya, Rule 6 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and all other enabling provisions of the law. It seeks the following orders:(a)Mukidi D Jwenge and Anderson Warui be enjoined as interested parties in the Petition herein.(b)That costs of the application be provided for.

2. The application is premised on the grounds that the proposed interested parties herein instituted constitutional Petition No. E 230 of 2022: Mukidi D Jwenge & Another and Anderson Warui in the High Court at Mombasa challenging the eligibility of the petitioner to be nominated by the Wiper Democratic Movement party for the position of Governor, Mombasa County; the petitioner having been removed from office as Governor by way of impeachment for gross violation of the Constitution. The applicants also asserted that the instant proceedings are similar to the proceedings in Constitutional Petition No. E 230 of 2022 as both proceedings relate to the eligibility of the petitioner herein to vie for the position of Governor of Mombasa County on the ground of impeachment for gross violation of the Constitution. The applicants further contended that the outcome of these proceedings will affect proceedings in Petition No. 230 of 2022 as the issues involved in the proceedings are similar. They therefore asserted that their participation in these proceedings is necessary for the effectual determination of the issues raised in this petition.

3. The application is supported by the joint affidavit of the applicants sworn on June 24, 2022, wherein they reiterated the grounds aforestated. The application was canvassed by way of oral submissions; and in support thereof, Mr. Ndegwa Njiru for the proposed 2nd and 3rd interested parties started off from the premise that Petition No. E230 of 2022 was not heard and determined on merit for lack of jurisdiction. He further submitted that the applicants have an identifiable stake for purposes of articles 3 and 48 of the Constitution. Counsel further submitted that it is important to distinguish these proceedings from the IEBC Dispute Resolution Committee proceedings which were in personam. According to him, the test is whether the applicants are here to protect their own individual interests or the larger public interest. He relied on Supreme Court Petition No. 12 (E016 of 2020): Attorney General v David Ndii and 73 others and the Mutunga Rules for the definition of an interested party and what amounts to identifiable stake; adding that such a person must demonstrate some legal interest or duty in the proceedings in which he/she is seeking joinder. He also made reference to the sections 10, 11, 12 and 13(e) of the Leadership and Integrity Act, No. 19 of 2012, and stated that the application is not actuated by any malice or ill will, but is meant to uphold the rule of law.

4. Mr. Mukele for the 1st, and 3rd respondents did not oppose the application for joinder. He pointed out that the applicants were involved in the Nairobi Milimani Petition No. E230 of 2022 which was dismissed for lack of jurisdiction. He further stated that no prejudice will be suffered by the petitioners if the Interested Parties are enjoined, and pointed out that the issues the applicants raised in Petition No. E230 of 2022 have since crystalized and require adjudication.

5. On behalf of the 2nd respondent, Mr. Kipkogei submitted that, as a quasi-judicial body, the 2nd Respondent rendered itself on the issues that are now before the court. He consequently left it to the court to make a determination of the issues before it.

6. Mr. Kagucia, counsel for the 1st interested party supported the application by the 1st and 3rd interested parties on the ground that this is the destination that the three judge bench in Petition No. E230 of 2022 directed the applicants to. He argued that this being a constitutional petition, the room to uphold the Constitution is expanded under articles 3 and 22. He further pointed out that the applicants were the first to challenge the petitioner’s candidature, and therefore, it is only fair to allow them to canvass that which was not resolved by the three judge bench.

7. On behalf of the 4th respondent, Ms. Lumallas opposed the application for joinder and relied on the Grounds of Opposition dated July 4, 2022. She submitted that the applicants have no locus standi for the reasons that: -(a)They never participated in the proceedings before the IEBC Dispute Resolution Committee.(b)They have wrongly invoked the jurisdiction of this Court as they seek to challenge the eligibility of the Petitioner, before exhausting the available remedy.(c)The applicants are guilty of material non-disclosure; for failing to disclose that judgment has already been rendered in High Court Petition No. E230 of 2022.

8. Thus, according to the 4th respondent, there is no nexus between this Petition and the Petition No. E230 of 2022, which, in any case, has already been determined. She therefore submitted that this application is an abuse of the court process and that the applicants are merely seeking to introduce a new cause of action in proceedings that do not concern them. According to her, the applicants have fallen afoul of the principles espoused in Muruatetu. She further submitted that the presence of the proposed interested parties is not necessary in these proceedings as the substratum involves a challenge of the decision of the IEBC Dispute Resolution Committee; which proceedings the proposed interested parties did not participate in.

9. Mr. Ochieng Oginga, also acting for the 4th respondent, built on the submissions of Ms. Lumallas and added that joinder of the parties is an exercise of the court’s discretion. He likewise relied on the Muruatetu case, and in particular, paragraph 42 thereof, as to the grounds upon which an order for joinder of parties can be made. Public interest, he argued, is not a blanket cause/excuse for joinder. He therefore urged the court to confine itself to the issues presented by the principal parties and not those sought to be introduced by the proposed interested parties.

10. Mr. Katisya, for the 4th respondent, urged the Court to note that the applicants did not attempt to go to IEBC as advised by the 3 judge bench in the consolidated petitions; neither did they appeal the decision in the High Court Petition No. E90 of 2020. In his view, there is no justification for the joinder of the applicants. His argument was supported by Mr. Nyamu whose view was that to allow the application would be akin to “opening a can of worms” as it would open the door for all manner of persons to seek joinder in this Petition. He referred to the Supreme Court Petition No. 12 (E016) of 2020: Attorney General v David Ndii & 73others (Petition 12 (E016) of 2020 [2021] KESC 17 (KLR) (9 November 2021) (Ruling) and High Court Civil Case No. 115 of 2019: John Harun v Simone Haysom & 2others; Attorney General & 2other (Interested Parties) [2021] eKLR and stated that a party seeking joinder must demonstrate that the submissions he/she will be making are different and not simply a replica of what other parties will be making; and that such a party should also show direct and not just a remote nexus to the matter at hand.

11. On his part, Dr. Khaminwa, SC, supported the submissions of Ms. Lumallas, Mr. Oginga and Mr Nyamu and added that the Petition raises issues touching on discrimination, rule of law, bias and democracy in our country. In his view, there is no merit whatsoever in submissions by Mr. Ndegwa and that this is an application that has been filed for personal gain. He urged the Court to dismiss it accordingly.

12. Lastly, Mr. Odhiambo associated himself with the submissions of the Petitioner and 4th Respondent and relied on Nairobi Miscellaneous Application 226 of 2013: International Centre for Policy and Conflict v Attorney General & 2 others [2014] eKLR as well as R v Ex parte Evans Kidero to argue that although the court has unlimited jurisdiction, that jurisdiction does not go downwards. He argued that to allow the application for joinder by the applicants would be tantamount to having them re-open a matter that they did not participate in. It was argued that the identity of the applicants is unknown as they did not avail any proof that they are Kenyans or even that they are registered voters. He prayed that the application be dismissed with costs.

13. In response to the submissions by counsel for the Petitioner and 4th respondent, Mr. Ndegwa for the proposed 2nd and 3rd interested parties explained that they could not appeal against the decision of the IEBC Dispute Resolution Committee because it was in accord with their stance in the matter. He also submitted that they could not have approached the IEBC Dispute Resolution Committee because its decision was delivered on June 20, 2022 before the High Court determined Petition No. E230 of 2022 on June 24, 2022. According to him, nexus is not one of the considerations for joinder. In his view the court should concern itself with the fact that the three judge bench only dealt with the issue of jurisdiction and therefore did not address the issues raised in the consolidated Petitions. He refuted the assertion that the application has been brought in pursuit of the applicants’ individual interest. He endeavoured to convince the court that the applicants are acting in public interest with the sole intention of upholding the supremacy of theConstitution.

14. We have carefully perused the application, the grounds set out on the face thereof as well as the averments made by the applicants in their Supporting Affidavit. We have likewise considered the responses and the submissions made before us and the only issue arising for determination is whether the applicants have met the legal threshold for joinder as interested parties.

15. The applicants approached the Court under articles 22 and 23 of the Constitution of Kenya. Article 22 provides: -(1)Every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.(2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by—(a)a person acting on behalf of another person who cannot act in their own name;(b)a person acting as a member of, or in the interest of, a group or class of persons;(c)a person acting in the public interest; or(d)an association acting in the interest of one or more of its members.(3)The Chief Justice shall make rules providing for the court proceedings referred to in this Article, which shall satisfy the criteria that—(a)the rights of standing provided for in clause (2) are fully facilitated;(b)formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation;(c)no fee may be charged for commencing the proceedings;(d)the court, while observing the rules of natural justice, shall not be unreasonably restricted by procedural technicalities; and(e)an organization or individual with particular expertise may, with the leave of the court, appear as a friend of the court.(4)The absence of rules contemplated in clause (3) does not limit the right of any person to commence court proceedings under this Article, and to have the matter heard and determined by a court.

16. Article 23 of the Constitution, on the other hand, provides that:(1)The High Court has jurisdiction, in accordance with Article 165, to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.(2)Parliament shall enact legislation to give original jurisdiction in appropriate cases to subordinate courts to hear and determine applications for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights.(3)In any proceedings brought under Article 22, a court may grant appropriate relief, including—(a)a declaration of rights;(b)an injunction;(c)a conservatory order;(d)a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)an order for compensation; and(f)an order of judicial review.

17. It is therefore plain that, in so far as the applicants do not seek the enforcement of any of the rights set out in the Bill of Rights, their interest is, in our considered view, remote to that of the petitioner herein. We find succor in this posturing in the decision of the Supreme Court in Petition No. 15 and 16 of 2015: Francis Karioko Muruatetu &another v Republic & 5 others[2016] eKLR in which it was held as follows in connection with article 22: -(46)Clearly, this Article cannot be a basis for admission of an interested party to any existing proceedings, where such a party has not shown a personal stake/interest in the matter, and only seeks to champion the public interest. The said article allows a party acting on behalf of another, or of the public, to ‘commence or institute’ a matter before a Court of law. Article 22 is not a formula for the admission of interested parties to any and all Court proceedings.

18. Clearly then, public interest per se is not sufficient ground for joinder; and therefore the question to pose is whether the applicants have demonstrated their personal/identifiable stake in this Petition. In this regard, the applicants relied on Rule 6 of the Constitution of Kenya Protection of Rights and Fundamental Freedoms Practice and Procedure Rules (2013), otherwise known as “the Mutunga Rules”, which provides: -The following procedure shall apply with respect to a friend of the court—(a)The court may allow any person with expertise in a particular issue which is before the court to appear as a friend of the court.(b)Leave to appear as a friend of thecourt may be granted to any person on application orally or in writing.(c)Thecourt may on its own motion request a person with expertise to appear as a friend of the court in proceedings before it.

19. Thus, Mr. Nyamu argued, and correctly so in our view, that the applicants have no demonstrable expertise that will be of assistance to the court in determining this Petition; and that such an application can only be made by the Attorney General under article 156 of the Constitution or such other competent person. Thus, the application ought to have been premised on Rule 7 of the Constitution of Kenya Protection of Rights and Fundamental Freedoms Practice and Procedure Rules, which states: -(1)A person, with leave of the Court, may make an oral or written application to be joined as an interested party.(2)A court may on its own motion join any interested party to the proceedings before it.

20. The Supreme Court has had occasion to pronounce itself on the prerequisites for joinder interested parties. For instance, in the case of Muruatetu case the following elements were singled out for compliance by proposed interested parties:(37)From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: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: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.

21. The same principles were reiterated the by the Supreme Court in Petition No. 12 (E016) of 2020 Attorney General v David Ndii & 73others (Petition 12 (E016) of 2020 [2021] KESC 17 (KLR) (9 November 2021) (Ruling). Guided by these principles, the question to pose is whether the applicants have satisfied these three elements.

22. We sought to ascertain the grounds proffered by the applicants for joinder and noted that at paragraphs 2 and 3 of the Grounds in support of the application, the applicants stated that: -(2)The instant proceedings are similar to the proceedings to the Constitutional Petition No. E230 of 2022 Mukidi D. Jwenge & Another v Mike Mbuvi Sonko and others as both proceedings relate to the eligibility of the Petitioner herein to vie for the position of Governor Mombasa County in light of the fact he was impeached from office for grossly violating the Constitution.(3)the outcome of the instant proceedings will affect the proceedings in Constitutional Petition No. E230 of 2022 Mukidi D. Jwenge & another v Mike Mbuvi Sonko and others as the issues in both proceedings are similar.

23. Those assertions are replicated in the Supporting Affidavit at paragraphs 11 and 12, and yet Petition No. E230 of 2022 was, as a matter of fact, determined on the 24th June, 2022 and is no longer pending in court. It is manifest, therefore, that the ground upon which the applicants seek joinder is not tenable. The inescapable conclusion we draw from that is that no personal interest or stake has been particularised or clearly shown by the applicants in their application to warrant their joinder.

24. In view of the above findings, it cannot be said that the two applicants will suffer any prejudice if their application for joinder is not allowed. In any event the applicants failed to demonstrate to the court the prejudice they stand to suffer should their application be dismissed.

25. We also considered the third element, with a view of ascertaining whether the applicants will bring any new submissions to this Petition that would be different from that which the other parties in the matter intend to make; and in this regard too we were not convinced that the applicant will present a different approach. Hence, we can do no better than reiterate the expressions of the Supreme Court in Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2014] eKLR where it was held: -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.

26. It is in the light of the foregoing we have come to the conclusion that the application has no merit and is accordingly dismissed with no orders as to costs.It is so ordered.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MOMBASA THIS 5TH DAY OF JULY 2022. …………………………OLGA SEWEJUDGE…………………………STEPHEN GITHINJIJUDGE.......................................ANNE ADWERA-ONG’INJOJUDGE