Kirui v Clerk, County Assembly of Uasin Gishu & 2 others; Independent Electoral and Boundaries Commission (Interested Party); United Democratic Alliance (UDA) & 13 others (Proposed Interested Parties) [2023] KEHC 26276 (KLR)

Kirui v Clerk, County Assembly of Uasin Gishu & 2 others; Independent Electoral and Boundaries Commission (Interested Party); United Democratic Alliance (UDA) & 13 others (Proposed Interested Parties) (Constitutional Petition E016 of 2023) [2023] KEHC 26276 (KLR) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26276 (KLR)

Republic of Kenya

In the High Court at Eldoret

Constitutional Petition E016 of 2023

JRA Wananda, J

December 8, 2023

Between

Kimutai Kirui

Applicant

and

The Clerk, County Assembly of Uasin Gishu

1st Respondent

The Speaker, County Assembly of Uasin Gishu

2nd Respondent

County Assembly of Uasin Gishu

3rd Respondent

and

The Independent Electoral and Boundaries Commission

Interested Party

and

United Democratic Alliance (UDA)

Proposed Interested Party

Serem Naomi Chepkemboi

Proposed Interested Party

Kemboi Roda Jelagat

Proposed Interested Party

Rebecca Jerop

Proposed Interested Party

Kiboi Chemtai

Proposed Interested Party

Nancy Hassan Saida Chepkoech

Proposed Interested Party

Adid Sahra Abdi

Proposed Interested Party

Kebenei Magrinah Chebet

Proposed Interested Party

Chelimo Juliet

Proposed Interested Party

Cherono Caroline

Proposed Interested Party

Wachira James Maina

Proposed Interested Party

Tiroop Belinda Chebichii

Proposed Interested Party

Waiganjo David Waweru

Proposed Interested Party

Tiroop Evarlyne Chepkoech

Proposed Interested Party

Ruling

1. The Applicant approached this Court vide the Notice of Motion dated 24/10/2023 seeking orders to join the County Assembly of Uasin Gishu as a 3rd Respondent in this Petition and to also join the 2nd – 15th proposed interested parties. Accordingly, the Petitioner sought leave to amend the Petition to include the said new parties.

2. The Application is filed through Messrs Lumallas, Achieng & Kavere Advocates and is expressed to be brought under Section 3A of the Civil Procedure Act, Order 1 and Order 7 Rule 9 of the Civil Procedure Rules, Article 22(1) of the Constitution and “all enabling provisions of Kenyan law”

3. The grounds of the Application are that the Petition is embedded on the proceedings, sittings and the question whether the County Assembly of Uasin Gishu is properly constituted thus making it necessary to join the County Assembly to these proceedings, that the proposed interested parties are the members of County Assembly whose election was challenged in Court and the outcome of this Petition will affect them, the proposed 2nd interested party is responsible for submitting nomination list for Gender Top up and also the list of Special Group Category persons which are the issues raised in regard to proper constitution of the County Assembly of Uasin Gishu and hence the proposed persons are necessary parties to these proceedings.

4. Counsel further submitted that there is a dispute in regard to the nomination and the 14 proposed interested parties have a stake in how matters relating thereto will be represented before this Court, the 1st interested party is responsible for gazetting and degazetting members of the County Assembly and verifying nominations, the Petition raises questions as to whether the Country Assembly is properly constituted in the absence of the proposed interested parties thus making it necessary for them to be joined to the suit so as to shed light on the process and allow this Court issue a fair, just and final determination, accordingly, the County Assembly and the interested parties have clear identifiable interests which are separate and distinct from the arguments advanced by the parties present, the County Assembly and the proposed interested parties are therefore necessary and proper parties to these proceedings, no prejudice shall be occasioned to the present parties if the orders sought are granted and that it is in the interest of justice and the overriding objectives of the law that the same be allowed.

5. The Application is supported by the Affidavit sworn by Counsel for the Petitioner, Eunice Lumallas. She deponed that the proposed new will be affected by the final decision of this Court and it is therefore in the interests of justice that they be joined. In essence, she reiterated the grounds of the Application as stated above and urged the Court to find that the annexed Amended Petition is duly filed upon payment of the requisite fees.

6. The 1st and the 2nd Respondents filed respective Replying Affidavits in opposition to the Application. I have not come across any Response from the 1st Interested Party and I therefore presume that none was filed on its behalf.

1st Respondent’s Response 7. The 1st Respondent, through Messrs Z.K. Yego Law Offices opposed the Application vide the Replying Affidavit sworn by one Shadrack K. Choge, the Clerk, County Assembly of Uasin Gishu. The date of swearing the Affidavit is not disclosed though. He deponed that the Application is an afterthought. He then cited Order 1 Rule 10 of the Civil Procedure Rules and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice Rules, 2013 commonly known as the “Mutunga Rules” and deponed that for joinder of persons as interested parties, the Court must be satisfied that the person has substantial and identifiable stake in the matter, a keen look at the Application discloses no such substantial stake neither does it particularize the prejudice to be suffered if the Application is declined, the proposed interested parties are persons whose election was nullified by the Court through the Judgment delivered by Justice Riechi on 1/09/2023, as such the proposed interested parties are not members of the County Assembly of Uasin Gishu as alleged in the Application, the proposed interested parties were removed through a Court process as contemplated under Section 7A of the County Governments Act and as such are no longer members of the County Assembly of Uasin Gishu.

8. Counsel further deponed that pursuant to said orders of Justice Riechi, the new members of the County Assembly are those whose names were published in the Kenya Gazette on 27/07/2022 and not the proposed interested parties who ceased being members of the assembly upon nullification of their nomination by the Court, once the said names are formally gazetted by the 1st interested party, they will immediately be sworn in, the Application seeks to give the proposed interested parties an opportunity to appeal against the decision of Justice Riechi to this Court rather than to the Court of Appeal, a Court cannot sit on appeal from its own decision or from the decision of a Court of concurrent jurisdiction, what is before this Court is a Constitutional Petition to determine the legality of the composition of the County Assembly of Uasin Gishu and not an election petition to determine the issue of removal of the proposed interested parties, the Supreme Court has pronounced itself on the issue of joinder of persons as interested parties in the case of Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLR and also in the case of Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 3 Others [2017] eKLR, in any event, the proposed interested parties have a pending appeal in the Court of Appeal at Eldoret being Eldoret Court of Appeal Election Petition Appeal No. E001 of 2023 and ought to defend their interests in the said appeal as they lack any stake in this Petition.

2nd Respondent’s Response 9. The 2nd Respondent also opposed the Application vide the Replying Affidavit filed on 28/11/2023 through Messrs Ngaywa & Kibet Partners LLP and sworn by its Counsel, Moses Ngaywa. He deponed that the Petitioner has not demonstrated the proposed interested parties' stake in the matter, the proposed interested parties are not necessary to the adjudication of the Petition as the thrust of the Petition is whether the County Assembly of Uasin Gishu is properly constituted which issue can be fully adjudicated upon in the absence of the proposed interested parties, the proposed interested parties are not necessary parties to the proceedings as the issue of their nomination was adjudicated upon in Eldoret Chief Magistrate Election Petition No. E001, E002 of 2022 and Eldoret High Court Election Appeal No. E002 of 2023 which issue has no nexus with the issues raised in the instant Petition, and that the 3rd to 15th proposed interested parties will not be affected by the decision of this Court in the instant Petition as they are no longer members of the Uasin Gishu County Assembly their nomination having been nullified in the said suits and Appeal.

10. Counsel deponed further that the Petitioner has not demonstrated the prejudice that the proposed interested parties are likely to suffer if they are not joined in this suit, the Petitioner seeks to join the proposed interested parties to introduce a new issue on nominations which issue is not set out in the instant Petition and which can only be resolved by the proposed interested parties appealing against the Judgment of Hon. Justice Riechi delivered on 1/09/2023 in Eldoret High Court Election Appeal No. E002 of 2023, the proposed interested parties intend to use the Petition herein to challenge the said decision of Hon. Justice Riechi instead of appealing against the same, they are disinterested and unconcerned parties whose participation will only serve to delay the fair trial and expeditious disposition of this Petition, the proposed amendment to the Petition is untenable in law as the same cannot be complied for reasons that 1st Interested Party is not properly constituted and as such it cannot conduct the gazettement of nominated members of the County Assembly, and that it is beyond the mandate of the 2nd Proposed interested party to effect the gazettement.

Hearing of the Application 11. The Application was canvassed by way of written submissions. Pursuant to directions given, the Petitioner filed his Submissions on 3/11/2023 while the 2nd Respondent filed on 1/12/2023. By the time that I concluded drafting this Ruling, no Submissions had been filed on behalf or by the 1st Respondent or the Interested Party.

12. Subsequently, after I had already concluded the Ruling, Submissions from the 1st Respondent were belatedly brought to my Chambers. I have declined to consider the same since I had given very clear timelines on filing of Affidavits and Submissions. Accepting the Submissions filed out of time will be to flout my said directions.

Petitioner’s Submissions 13. Counsel for the Petitioner cited Order 8 Rule 5 of the Civil Procedure Rules on amendment of pleadings and submitted that the Court ought to be bold to defend the Constitution and the rights of all peoples without fear or favour and that it has discretion to allow or deny an Application seeking amendment of pleadings, that joinder of the proposed parties will lead to the full appreciation of the issues in the Petition and to the full and final determination of the issues in controversy, the Civil Procedure Rules under Order 1 Rule 10(2) states that the Court may at any stage of the proceedings order that the name of any party improperly joined, be struck out, and that the name of any person who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added, the provisions of Order 1 Rule 10 (2) is of utility to this suit,

14. Counsel submitted that the proposed 2nd Interested Party is a proper party with requisite legal capacity and his participation is important for the full and proper determination of this matter. Counsel then referred to the definition of “interested party” in The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (hereafter the “Mutunga Rules”) and submitted that the proposed Interested Parties are the Special Group Members of County Assembly who were previously gazetted and had been sworn in and whose status is in limbo, their absence in the County Assembly of Uasin Gishu forms the basis of the Petition as the Assembly is now unconstitutional contrary to the constitution, they can personally establish this status prior to any orders to suspend the County Assembly as sought are made, these orders are of interest to them or may affect them, joining them will serve to ensure that all relevant information required will be supplied to the Court, enabling the matter to be resolved expeditiously and with finality. She added that in the case of Francis Karioko Muruatetu & another v Republic & 5 others [2016] eKLR the Supreme Court of Kenya outlined the requisite elements to being joined as an interested party to a suit.

15. Counsel added that the orders granted by the Court affect the proposed Interested Parties by virtue of the fact that they form part of the members of the Uasin Gishu Assembly and whose status dictate the unconstitutional status of the Assembly in terms of threshold for marginalized and women therefore making it necessary for them to be joined to the suit, and that the proposed 2nd Interested Party, United Democratic Alliance Party, will be affected by the final decision of the Court as the interested parties are nominated by it.

16. She submitted further that in the annexed Amended Petition, the Petition introduces a prayer for an order compelling the 1st and 2nd Interested parties to fast-rack the official gazettement of special group Members of County Assembly and that the sworn in members previously gazetted continue in office until other members are gazetted as measures allowed by the bill of rights under the Constitution, no substantial injustice will be suffered by the Respondents which cannot be compensated by way of costs as the matter is still at the preliminary stages and hearing of the same is yet to commence. She referred to the cases of St. Patrick’s Hill School Limited v Bank of Africa Kenya Limited [2018] eKLR and also Emerge Development Limited v Chestnut Uganda Limited & another [2020] eKLR where the Court was faced with the task of establishing whether amending the Plaint would occasion substantial injustice and prejudice and submitted that the amendments proposed do not depart from the original claim or change the character of the suit and that instead, they are issues that crystalize the Petitioner’s case and will accordingly aid that court in determining the case.

17. On the issue of award of costs, Counsel cited Section 27 of the Civil Procedure Act and submitted that the same gives the Court discretion, that however, costs always follow the event, the successful party should then be the person to be awarded costs unless there are special circumstances which should warrant the Court to deviate from the same. She then cited the cases of Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR where the Court cited the decision in Republic vs Rosemary Wairimu Munene, Ex-Parte Applicant Vs Ihururu Dairy Farmers Co-operative Society Ltd Judicial Review Application No.6 of 2014. She urged that the Petitioner should be awarded the costs of the Application as he has clearly demonstrated that the amendments are necessary and that the proposed Interested Parties have direct interest in the suit necessitating that they be joined to the suit.

18. On the discretionary power of the Court in granting or refusing an Application for amendment of pleadings, Counsel submitted that the same should be exercised judicially and in consideration of the facts of the case in particular. She cited the case of Bosire Ogero v Royal Media Services [2015] eKLR. She then submitted that the Respondents have not even filed Responses to the Petition and therefore pleadings are yet to close and as such the Petitioner is entitled to amend his pleadings without seeking leave. She also referred to the case of Daniel Ngetich & Anor v K-Rep Bank Limited [2013] eKLR.

2nd Respondent’s Submissions 19. Counsel submitted that the term “an interested party” is defined in Rule 2 of the Mutunga Rules (supra) and submitted that it is a general principle of law that being joined as an interested party is not mandatory but an exercise of the discretion of the court under Order 1 Rule 10 as was held in the case of Francis Karioki Muruatetu (supra). He submitted that the Supreme Court in the above-cited case set out the principles guiding the courts in exercising their discretion, the Petitioner has not demonstrated the personal interest that the proposed interested parties have in this matter, he has only advanced the issue of their nomination which was challenged in Court leading to the nullification of their election, the Petition is not concerned with the nomination and the subsequent nullification of the proposed 3rd to 15th Interested parties’ election, The substratum of the Petition is whether the County Assembly is properly constituted, deliberating on the nomination of the proposed 3rd to 15th interested parties is not only far-fetched from the issue at hand but would also be akin to the parties introducing new issues not raised in the Petition. He cited the decision in the case of Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2014] eKLR in which the Supreme Court gave guidelines on who can be admitted as “interested party” and urged that the Petitioner has not demonstrated the interest of the proposed interested parties.

20. Counsel further contended that the Petition can be wholly adjudicated upon in the absence of the proposed interested parties, the Petitioner has not demonstrated how the submissions of the proposed interested parties will help the Court in the determination of the suit, the Petitioner has also not demonstrated the likely prejudice that the proposed interested parties will suffer, the reasons advanced by the Petitioner are not sufficient to warrant the proposed parties being joined to this suit as interested parties, the 3rd to 15th Proposed interested parties are no longer members of the County Assembly of Uasin Gishu, as such, the issue of whether the assembly is properly constituted or not does not directly or indirectly affect them. He cited the case of Skov Estate Limited & 5 Others vs Agricultural Development Corporation & another (2015) eKLR and submitted further that the application seeks to enable the proposed interested parties to ventilate their dissatisfaction with Justice Riechi’s decision in Eldoret High Court Election Appeal No. E002 of 2023 instead of appealing against it, the Applicant seeks to introduce a new issue of nomination which issue has already been determined in Eldoret High Court Election Appeal No. E002 of 2023 and there is a pending appeal being Eldoret Court of Appeal Election Appeal No. E001 of 2023. Counsel added that it is trite law that an interested party may not frame its own issues or introduce new issues. He again cited the of Francis Karioki Muruatetu (supra)

21. Counsel submitted further that apart from the issue of nomination, the Petitioner has neither demonstrated the proposed interested parties' stake in the matter nor the prejudice they are likely to suffer if they are not enjoined in the suit hence the proposed interested parties are not necessary parties to this petition.

22. Regarding the proposed amendment, Counsel submitted that the relief or order being sought, even if granted, cannot be enforced as the 1st Interested is not properly constituted to enforce and/or implement the same, demanding the 1st interested party to comply will be upholding an illegality as it does not have the requisite capacity to gazette nominated members of the County Assembly, it is not within the mandate of the 2nd Proposed interested party to gazette nominated members of the County Assembly, the mandate squarely vests in the 1st Interested party, the 2nd proposed interested party’s mandate ends when it submits its party list to the 1st interested party. In conclusion, he cited the case of Nthabiseng Pheko vs Ekurhuleni Metropolitan Municipality & another CCT 19/11/(75/2015) which, he submitted, was cited with approval in the case of Republic vs Principal Secretary, Ministry of Defence ex parte George Kariuki Waithaka (2019) eKLR on the need to uphold the dignity and authority of the courts be upheld.

Analysis & Determination 23. Upon considering the Application, responses thereto, Submissions and authorities cited, in my view, the issues that arise for determination are the following:i.Whether the County Assembly of Uasin Gishu should be joined into this Petitioner as a 3rd Respondent.ii.Whether the prayer for joinder of the proposed 2nd to 15th interested parties to this Petition is merited.

24. I now proceed to answer the said issues.

i. Whether the County Assembly of Uasin Gishu should be joined to this Petition as the 3rd Respondent 25. The Applicant seeks to join the proposed 3rd Respondent (County Assembly of Uasin Gishu) as a party to this Cause. Joinder of parties is governed by various statutory provisions. For instance, Order 1 Rule 6 of the Civil Procedure Rules provides as follows;“The plaintiff may at his option join as parties to the same suit all or any of the persons severally, or jointly and severally liable, on any one contract, including parties to bills of exchange and promissory notes.”

26. Additionally, Order 1 Rule 9 states as follows:“Misjoinder and non-joinder [Order 1, rule 9. ]No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”

27. The crux of the Petition herein is whether the composition of the County Assembly of Uasin Gishu as currently constituted is constitutional. The Petition therefore seeks determination of the legality of the composition of the County Assembly. I note that the Speaker and the Clerk of the Assembly are already Respondents in this matter. Inasmuch as it is the County Assembly that is on the “weighing scales”, it is itself not party. This is a major omission in my view. Although the Speaker and the Cleark may be said to cover or stand-in for the County Assembly and may act as its mouthpiece, the reality is that the three are all separate and distinct constitutional organs, each with separate and distinct duties and roles. Each is therefore answerable for its own actions. Actions of one organ may not therefore necessarily bind the other. It therefore naturally follows that any orders arising from the Petition herein will affect the County Assembly as well.

28. I also note that this particular prayer does not seem to have been seriously challenged by the Respondents. In any event, the Respondents have all along taken the position that the Petition is defective because it never joined the County Assembly as a party. The present Application therefore seems to have been filed in response to that very issue raised by the Respondents.

29. In the circumstances, I am in agreement with the Petitioner that the Counsel Assembly should indeed be enjoined as a 3rd Respondent in the Petition.

ii. Whether the prayer for joinder of the proposed 3rd to 15th interested parties to this Petition is merited 30. This prayer has been strenuously opposed by the 1st and 2nd Respondents.

31. The phrase “an interested party” was well defined by the Supreme Court in the case of Trusted Society of Human Rights Alliance v Mumo Matemu [2014] e KLR, as follows:“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 champions his or her cause ….”

32. On its part, the Mutunga Rules (supra) at Rule 2(b) thereof, defines the term as follows:“interested party” means 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;

33. Therefore, in order to determine whether the proposed interested parties should be joined in this Petition suit, the Court must establish whether the proposed parties have an identifiable stake in the proceedings.

34. The Petitioner’s contention is that the proposed 3rd to 15th interested parties will be affected by the outcome of the Petition since it is their nomination that was the subject of the dispute that gave rise to this suit. As regards the 2nd interested party (UDA political party), the Petitioner argues that it should be also joined since it was the entity responsible for presenting the nomination lists for the Gender Top Up and for Special Category.

35. A perusal of the Petition reveals that what is sought in the Petition is orders that the County Assembly be dissolved for reason that its current composition breaches the Constitution. The background of the matter is that the names of the 3rd to 15th proposed interested parties were published by the proposed 2nd interested party (UDA political party) on 24/08/2022 and forwarded to the 1st interested party, Independent Electoral & Boundaries Commission (IEBC) as the political party’s list for Gender Top Up and for the Special Category for nomination to the County Assembly of Uasin Gishu. The nomination was however challenged at the Political Parties Disputes Tribunal which duly nullified the list. The Tribunal found that an earlier nomination list published on 27/07/2022 was the proper and valid one. The decision of the Tribunal was then challenged before the Chief Magistrates’ Court vide Election Petition No. 001 of 2022 but was upheld and the list of 24/08/2022 again declared illegal, null and void.

36. This subsequent decision was itself challenged on appeal before the High Court vide Eldoret Election Petition Appeal No, E002 of 2023. Once again, the High Court (Justice S. N. Riechi) declared the list of 24/08/2022 illegal and dismissed the Appeal. Consequently, the proposed 3rd to 15th interested parties lost their positions as nominated members of the County Assembly.

37. The question that now arises is; what stake do the 2nd to 15th Respondents have in the Petition such that that it would require their joinder? In my honest assessment there is none.

38. I agree with the Respondents that the proposed 3rd – 15th interested parties are persons whose nomination has already been nullified by the Courts through the decision of the Political Parties Disputes Tribunal and subsequently by the Judgment of Chief Magistrate Hon. D. Mikoyan delivered on 19/03/2023 in Eldoret Chief Magistrates Court Election Petition No. E001 of 2022 and again upheld by the Judgment of Justice Riechi delivered on 1/09/2023 in Eldoret High Court Election Petition Appeal No. E002 of 2023. In the circumstances, unless the said decisions are overturned by the Court of Appeal, the present position is that the proposed 3rd to 15th interested parties are no longer members of the County Assembly of Uasin Gishu. As directed by the respective Courts, the validly nominated members of the County Assembly who are now awaiting gazettement by the 1st interceded party and swearing-in, are those whose names were published on 27/07/2022.

39. As correctly argued by the Respondents, what is before this Court is a Constitutional Petition to determine the legality of the composition of the County Assembly of Uasin Gishu subsequent to the nullification of the nomination of the 3rd to 15th proposed interested parties as per the discredited list of 24/08/2022. It is also not a dispute over the validity of the choice of the persons nominated to the County Assembly, that issue was canvassed and determined in the Judgments referred to above. For this reason, the 2nd proposed interested party (UDA political party), being the nominating political party, too, cannot have any valid or identifiable role or stake in the Petition.

40. The Petitioner alleges that there is need to join the proposed 2nd interested party (UDA political party) for the purposes of enforcement of the orders that may be given herein if the Petition succeeds. Looking at the prayers in the Petition, I do not find any that would necessarily require exclusive or substantial enforcement by the 2nd interested party such that it ought to be joined in this Petition. What the Petitioner is basically seeking herein are declaratory orders which do not necessarily involve the political party. In the Judgments referred to above, the political party was directed to transmit to the 1st interested party (IEBC) the party nomination list published in the National Newspapers on 27/07/2022. Once the party complied with this directive, its role came to an end. If it did no so comply, then a finding of contempt of Court would have to be sought in those other previous cases.

41. In conclusion, I find that the Petitioner has not demonstrated to this Court that the proposed 14 interested parties have any identifiable stake in the Petition such that it would necessitate their joinder. Allowing joinder of the 3rd to 15th Respondents will be of no use and would only serve to convolute this matter, confuse the issues herein and delay the determination of the Petition herein. It follows therefore that the prayer for joinder of the said proposed interested parties is without merit.

Final Orders 42. In the premises, the Application partially succeeds. Accordingly, I order as follows:i.The prayer to join the County Assembly of Uasin Gishu as the 3rd Respondent is allowed. The Petitioner is therefore at liberty, within seven (7) days from the date hereof, to amend the Petition and effect this joinder.ii.The prayer to join the proposed 3rd to 15th interested parties is however declined.iii.Costs shall be in the cause.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 8TH DAY OF DECEMBER 2023…………………………..JOHN R. ANURO WANANDAJUDGE