Republic v Kenya Revenue Authority, Wananchi Nominees Limited, International Consulting Marketing Services Ltd (Formerly ISP Kenya Ltd) & East Coast Telecoms Limited Exparte Richard Bell [2018] KEHC 8002 (KLR) | Joinder Of Parties | Esheria

Republic v Kenya Revenue Authority, Wananchi Nominees Limited, International Consulting Marketing Services Ltd (Formerly ISP Kenya Ltd) & East Coast Telecoms Limited Exparte Richard Bell [2018] KEHC 8002 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  292 OF 2016

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEWORDERS

OF PROHIBITION, CERTIORARI AND DECLARATORY ORDERS

AND

IN THE MATTER OF WANANCHI GROUP HOLDINGS LIMITED,

WANANCHI PROGRAMMING LIMITED AND

WANANCHI SATELLITE LIMITED

AND

IN THE MATTER OF ARTICLES 10, 47, 20(1), 20(4), 23(1), 12(3)

OF THE CONSTITUTION OF THE REPUBLIC OF KENYA.

AND

IN THE MATTER  OF TAX  PROCEDURES  ACT NO.  29 OF  2015

BETWEEN

REPUBLIC......................................................................................APPLICANT

VERSUS

KENYA REVENUE AUTHORITY...................................1ST RESPONDENT

WANANCHI NOMINEES LIMITED........PROPOSED 2ND RESPONDENT

INTERNATIONAL CONSULTING MARKETING SERVICES LTD

(FORMERLY ISP KENYA LTD)................PROPOSED 3RD RESPONDENT

EAST COAST TELECOMS LIMITED.....PROPOSED 4TH RESPONDENT

RICHARD BELL..........................................................EXPARTE APPLICANT

RULING NO.2 AND 3

1. This ruling determines two applications one dated 10th March  2017  by the prosed respondents and the other dated 12th April, 2017 by the exparte applicant. The  proposed  2nd, 3rd and 4th respondents Wananchi Nominees Limited, International Consulting Marketing  Services  Ltd ( formerly ISP Kenya Limited) and East Coast Telecom Limited  By their application dated 10th MARCH, 2017 seek to be enjoined  to these proceedings  as  respondents, and that  they be served with the Judicial Review application and other documents.  The applicants/intended respondents  also pray  for costs.

2. The application is supported by an affidavit sworn by Joe Kamau and predicated on the grounds that  the proposed  respondents  are shareholders in Africa Telecommunications, Media  and Technology  Fund I, LLC(ATMT Fund I) which is a fund managed by East Africa  Capital  Partners  Management,  LP(EACP), pursuant to the amended and Restated Management   Agreement among Africa Telecommunications, Media and Technology Fund I, ATMT I holdings, LLC and East Africa  Capital  Partners.  It is alleged that the exparte applicant  in these proceedings, Mr Richard Bell, is a key person in East Africa Capital Partners and in the management of Africa Telecommunications, Media and Technology Fund I, as  defined in the Africa Telecommunications, Media and Technology Fund I Amended and Restated Shareholders  Agreement dated 9th June 2010 and the Amended and  Restated  Management  Agreement.

3. It is further  claimed that there are number  of companies   and  other entities   related to the Africa Telecommunications, Media and Technology Fund I in various ways and they include  Wananchi Group Holdings Limited (WGHL), Wananchi  Programming Limited (WPL) and  Wananchi Satellite  Limited (WSL).

4. It is  further claimed that the  1st respondent  on  20th June  2016  appointed the applicant as a tax representative of Wananchi Group Holdings Limited, Wananchi  Programming Limited, and   Wananchi Satellite Limited that in these proceedings he is  challenging that appointment as a tax representative of Wananchi Group Holdings Limited.  It is claimed that the proposed  representatives have  information which they  believe  would be of assistance to the court in determining the applicant’s judicial review application, and  specifically whether  the  appointment  of the applicant  as the tax  representative of Wananchi Group Holdings Limited, Wananchi Programming Limited, and   Wananchi Satellite Limited by the  1st respondent  was proper.

5. It is believed that the proposed respondents hold a unique  position  and can provide  vital information for the just, effective  and  expeditions  resolution of the  dispute.

6. Further, that the proposed  respondents  wish to participate  in these proceedings in opposition to the judicial review  application by the applicant Richard Bell and that they are proper persons to be heard by the court in opposition to the judicial review proceedings  hence it is  necessary and vital and  in the interest of justice that the proposed  respondents  be joined  as parties  since they  are fit  and  proper  persons to be joined  in these  proceedings.

7. On 12th April 2017, by an  application  dated  the same  day, the exparte applicant  Mr Richard  Bell filed   a notice of motion  seeking  to have the proposed  respondents’  affidavit of Joe Kamau sworn on 10th March 2017 at paragraphs  6-37 be struck out  and   that the said  proposed  respondents  be precluded from advancing or relying on any factual  or legal positions  premised  on the impugned  paragraphs  6-37  of the supporting affidavit  of  Joe Kamau.  He also  sought to be  heard in priority over the application for joinder of the proposed  respondent.

8. The grounds supporting the application is that the impugned paragraphs are  irrelevant  and  meant to vex and  embarrass the exparte  applicant and  Wananchi Group Holdings Limited and  therefore  scandalous  oppressive and irrelevant  as they  relate or, among  others, purported  mismanagement and  negligence  on the part of Wananchi Group Holdings Limited by the exparte  applicant  and other  parties, which allegations  are irrelevant  to the  matters in issue  herein.

9. It is also claimed that some of the impugned paragraphs are based on information purportedly provided  by a former  director of Wananchi Group Holdings Limited and that the exparte  applicant is not privy to the information which relate to generalized areas of alleged mismanagement of Wananchi Group Holdings Limited and other companies and does  not link to the purported investigations  to the  exparte applicant.  It is also claimed that some paragraphs like 27-29 are  argumentative  and  devoid  of any  substantial  factual  averment.

10. It is further averred that the  impugned paragraphs attempt to link the  extraneous and  oppressive matters to the  exparte applicant  and  application yet  the main  issue for  determination  in this matter  is whether the exparte applicant’s appointment as a tax  representative  of Wananchi Group Holdings Limited, Wananchi Programming Limited, and  Wananchi Satellite Limited was in order, and not on investigations by the 1st respondent into affairs of the companies in which the exparte applicant holds 9 positions  or into companies associated with Wananchi Group Holdings Limited.

11. It is claimed that the offensive paragraphs will not help this  court do justice and that they are oppressive to the applicant.  Further, that the paragraphs in question are subject  to arbitration  under ICC Rules as per the Amended and Restated Shareholders  Agreement  and  Management  Agreement and that they disclose issues  in a pending High Court case No. 84/2017 GHCPM LLP vs  Wananchi Nominees and Others hence they should  be struck out  as  they  would not  aid the  course of justice.

12. The above grounds are also replicated in the supporting  affidavit of the exparte applicant while adding that the offending  paragraphs disclose what was prohibited by Honourable  Ochieng  J in  the Commercial Division of the High Court  on  15th March 2017 and 28th February 2017 as shown by the  annexed orders.

13. The 1st  respondent filed  grounds of opposition to the  application dated  12th April  2017  seeking  to strike out  paragraphs 6-37  in the affidavit of the proposes  respondents. They however support the application seeking to enjoin the proposed respondents. In the  view  of the 1st respondent, the proposed respondents  should be allowed  to be enjoined to these  proceedings  because  they possess  important  information  which is  not within the 1st  respondent’s  possession and which is useful to the court  in its determination of the issue of  appointment of the  exparte  applicant  as a tax representative of the various companies associated with  the Wananchi Group Holdings Limited(WGHL). The  1st respondent  also opposed  the prayer  that the  prayer for  striking out the joinder  application  precedes the application for joinder.

14. It  was  contended that  the  paragraphs  sought to be  expunged  merely  elaborate  on the group structure and  relationship  of the exparte applicant to the companies the 1st respondent  has sought to appoint him as tax representative.  It is  further contended that the exparte applicant does not give particulars of scandalous  and vexatious  statements made  by deponents  of the impugned affidavit and neither does he particularize the falsehoods and defamatory innuendo made by the said deponent.

15. It was therefore  contended that the application  for striking out the impugned paragraphs is made  in bad  faith and  meant  to  delay  the hearing  and determination of the main application by the exparte applicant as the exparte applicant continues to enjoy stay of execution granted to him by this court.

16. The proposed respondents also opposed the exparte applicant’s motion seeking  to strike out paragraphs 6-37 of the affidavit sworn by Joe Kamau. The said proposed respondents filed grounds of  opposition  on  28th June  2017 contending that  the  application is an abuse of  court process  and is intended to delay the hearing of the application for joinder  dated  10th April  2017; that the relevance or otherwise of the averments by Joe Kamau’s  affidavit is to be determined  by this court  at the hearing of the main  suit not at the hearing of the  application for joinder;

17. That Order  53  of the Civil Procedure Rules  allows joinder  of the  proposed parties.  That the  paragraphs sought to be struck out  merely seek to lay a basis for the assertion that the proposed parties  are proper  parties for  joinder to be heard  in opposition to the notice of motion dated  28th July  2016.

18. Further, that should the  proposed  parties be enjoined they will file their  response to the motion and  therefore no prejudice can be suffered  by the exparte applicant.  That  the  proposed parties  will shed light  to the intricate  nature of the three  entities  as well as other related companies  which the  respondent  has been unable  to get  and which  information  is in possession of the  proposed parties.

19. It is  contended that the  proposed  parties  should not   be denied access  to justice based  on an order in HCC 84/2017 and that  striking  out the impugned paragraphs  6-37  of Joe Kamau’s  affidavit would  cause substantial injustice  to the proposed new  parties since they are fit persons to be heard in these proceedings.

SUBMISSIONS

20. The parties’ advocates orally argued  both applications for  joinder  and  for striking out the affidavit of Joe Kamau before me on  8th November  2017  with Mr Muiguru  representing the proposed  respondents while  Mr Nyaga  represented  the 1st respondent  as Mr Owiti  held brief  for Mr Monari  advocate  for the exparte  applicant.  Mr Owiti submitted that since the filing of the substantive  motion, there had  been material  developments  as the exparte  applicant  Mr  Richard Bell was no longer the Director of Wananchi Group of Companies and that therefore they needed  more time to seek instructions to seek instructions  from their client  if  the matter  could be settled  one way  or the other. However, Mr Nyaga opposed the adjournment citing deceit, unless  the  main motion was  withdrawn.

21. Mr  Muiguru  also sought  time  to seek instructions but as  there  was no good reason why the matter could be adjourned, I directed  parties to proceed as earlier attempts to resolve the matter amicably had not borne any fruits and there was no suggestion that the parties were willing to negotiate for a settlement out of court, which the  court could  have encouraged.

22. Mr Muiguru  on behalf of  the proposed respondents submitted that the only issue in the substantive motion is whether the  exparte  applicant was  properly appointed by Kenya Revenue Authority as a tax  representative  and  that the proposed respondents  will seek to establish the  group structure   of the  companies   involved  and their relationship with the exparte  applicant.  It  was  submitted that  relationship is not within the domain of the Kenya Revenue Authority but within the knowledge of the proposed  respondents.

23. It  was  submitted that the interests  of the proposed  parties  is to provide  information to the  court to the effect  that the applicant   has a relationship with the subject companies because the applicant  has denied  any relationship with the said   companies  hence  their notice of motion  dated 10th March 2017  is merited. Reliance was placed on the case of Republic vs  Central Bank of Kenya Exparte  Imaran Ltd  & 6  Others  at page  8[2010] e KLR paragraph  45  on the threshold  for joinder.

24. Mr Omiti counsel for the exparte  applicant  opposed the application  for joinder and maintained that there was no single identifiable  interest shown by the proposed respondents  as no tax demands were issued  to them  by Kenya Revenue Authority.

25. Further, that the documents annexed  to the application  on the purported structure of Wananchi Group of Companies is an  extension of Boardroom wrangles to intimidate the exparte  applicant  because  they are subject of live proceedings before the Commercial Division where Justice Ochieng prohibited  any litigation by the respondents on matters  in respect of  Wananchi Group  Holdings Ltd and  related  matters. Reference  was made to the  order of  15th March 2017 granted by consent  of all the parties  in the Commercial Division where  counsels  hereto also appear  for parties  in that matter.

26. On the application dated 12th April 2017 for striking out paragraphs 6-37 of the Joe Kamau’s  affidavit, it  was  submitted  that the information contained therein  is scandalous, oppressive, extraneous  and  immaterial to the issues  involved in the  main motion before this court and therefore offend the orders of  Honourable Ochieng J in HCC 84/2017.

27. Further, that information contained in those impugned paragraphs is not  relevant to the suit  and that  no information  in the possession of the proposed respondents is  useful  to assist  this  court in determining  the straight  forward issue  hence the  application for joinder is devoid of merit hence it should be  dismissed with costs.

28. On the part of the 1st respondent, Mr Nyaga submitted, supporting the motion for joinder of the  proposed parties  and  stated that  Order 53  of the  Civil Procedure  Rules allows joinder of parties emphasized that  paragraphs 23-55 of the impugned affidavit  explains to court the structure of Wananchi Group of Companies  for the court to  understand  why  the  1st  respondent  instructed  the appointment of the exparte applicant  as a  tax representative.

29. It  was  further submitted that  the role of the applicant  is  in various companies which is brought out in the impugned  affidavit  of the proposed  respondents.  It  was further submitted that  those paragraphs as impugned amplify the respondent’s  replying affidavit hence the proposed parties  are proper  parties.  It was submitted that as the applicant is seeking equitable  remedies, he  must place before this court all material facts and  that it is  the impugned affidavit of Joe Kamau that brings useful information to court hence the application for joinder should be allowed and the striking out motion disallowed  because it seeks  to conceal  material  facts before the court.

30. On the part of Mr Muiguru, he submitted that his clients were not  in breach  of  Honourable Ochieng  J’s order because  they are  not  instituting proceedings but laying bare facts before the court  and that the orders  are clear  but they cannot be  used to conceal  information to this court. Further, that if there is breach, the  proposed  parties  can be  cited for  contempt. It was further submitted that relevance of the matters deposed will be  determined  by this court  at the hearing  of the main motion. Reliance was placed on Kiama Wangai  vs  John Mugambi  & another [2012] e KLR and argued that the threshold for striking  out pleadings  had not  been met.

31. Mr  Muiguru submitted  associating  himself  with Mr Nyaga’s  submissions and maintained that the 1st respondent  was justified  in appointing  the applicant  as a tax  representative of Kenya Revenue Authority.  He relied  on Republic vs Central Bank of Kenya exparte Imaranand submitted that in this case Kenya Revenue Authority was not in possession of the information which the  proposed  parties  have availed  to court. It was submitted that striking  out an  affidavit  is a  draconian  step which  should  be declined  and the  motion for joinder should be allowed.

32. In a rejoinder,  Mr Omiti  submitted that the rules  for striking  out  affidavit  paragraphs  are clear.  That  there are  allegations  of theft and loss of millions of dollars which are  unsubstantiated  allegations, scandalous, prejudice  the applicant  and  are matters  for which Ochieng J said should not be broadcast  hence they are irrelevant and meant to embarrass the applicant and should  therefore  be struck  out.

DETERMINATION

33. I have considered the two applications as filed, responses  thereto, oral submissions for and against each of the  applications  and  case law  cited.

34. In determining both the  applications  I find only  two issues  for canvassing.

1) Whether the proposed parties should be joined to these  proceedings and if so, in  what capacities.

2) Whether paragraphs 6-37 of the affidavit sworn by Joe  Kamau  in support of the application for joinder of the proposed  parties  should be struck  out as sought.

3) What  orders should the  court make.

35. On the first issue of whether the proposed parties should be  joined to these proceedings and if so, in what capacities, the proposed  parties claim that  although the  exparte  applicant has  filed the substantive notice of motion before this court claiming that the Kenya Revenue Authority, who is the  first respondent had erroneously appointed him as a tax representative of Wananchi  Group of Companies, the proposed  parties are the ones who  have  all the information  regarding  the relationship between the exparte applicant and Wananchi Group of Companies hence, they should be allowed to be enjoined to demonstrate  how that  relationship comes about and  the reason why they believe the  exparte applicant was correctly appointed as a tax representative for Wananchi Group of Companies which information is not  with the 1st  respondent.

36. The  1st respondent  KRA supports  the proposed  parties  position  and  adds that Order 53 of the Civil Procedure Rules allows joinder  of the proposed  parties.

37. On the  part of the  exparte applicant, he opposed the motion for  joinder contending that the proposed parties have no role to play in these  proceedings ,  are to disclose  irrelevant  matters and  in  total breach of the orders in HCC 84/2017 pending before Ochieng J barring any litigation or disclosure of matters involving the proposed parties companies  and that the  proposed parties are but hell bent to embarrass and  intimidate the  exparte  applicant.

38. The question therefore that I must answer is whether the  proposed  parties  should be excluded from participating in these proceedings for lack of  the necessary  locus standi. Order  53  Rule  6 of the Civil  Procedure Rules stipulates.

“ On the hearing of any such  motion as aforesaid, any  person who desires to be heard in opposition to the motion and  appears to the High Court to be a proper person shall be heard  notwithstanding that he  has not been served  with the notice or summons, and  shall be liable to costs in the  discretion  of the court if the  order  should be made.”

39. Order 53(3) (2) provides that a motion shall be served on all persons  directly  affected  whereas  Rule  3(4)  provides, “ If on the hearing of the motion the High Court is of the opinion  that any person who ought  to have been  served, whether or not  he is a person who ought to have been served under the foregoing  provisions  of this Rule, the High Court may  adjourn the  hearing in order that the notice may be served  on that person, upon  such terms( if any) as the  court may direct.”

40. The exparte applicant does not deny that he was associated  with the proposed parties who are said to be related to Wananchi  Group of Companies for which  the 1st respondent claims the exparte  applicant  was  appointed  as tax  representative.

41. The exparte applicant did not enjoin the said Group of Companies as interested parties.  The rules under Order 53  do not  provide that  the  person seeking  to be enjoined  must have a sufficient  interest, to be enjoined  or served with the motion.

42. The proposed  parties  intend to  oppose the exparte  applicant’s motion challenging  his appointment  by the  1st respondent  as a tax  representative for  Wananchi  Group of Companies.  What  the  proposed parties  therefore  are required to do is  to file an  affidavit  giving  reasons  why  they consider  themselves  to be proper persons and the grounds on which they intend  to oppose the substantive  motion  filed by the  exparte applicant.  The Court of Appeal in the case of West Kenya Sugar Company Limited vs. Kenya Sugar Board & Another [2014] eKLRwhere the High Court Judge excluded the applicant  from  participating  in the judicial review  proceedings held inter alia:

“[18]. In the absence of rules regulating the procedure, a person who is not a party to the judicial review application and who intends to oppose the application can approach the court in any manner of approaching the court permitted by the law. He can file an affidavit giving reasons why he considers himself to be a proper person and the grounds on which he intends to oppose the application.  In the absence of rules, leave of the court to file such affidavit is not required. Further, a requirement for leave would mean that an application for leave has to be heard and determined before the hearing of the application which may result in unnecessarily protracted proceedings. The affidavit should be served on all parties in good time before the hearing of judicial review application.  In this case, such an affidavit was filed and served.  The learned judge, erroneously in our view, considered the filing of an affidavit without leave as act of abuse of process of the court. At this stage and where the issue is a simple one, the court can on perusing the affidavit and replying affidavit or upon hearing brief arguments and without going into the merits, determine on prima facie basis whether or not a person intending to be heard is a proper person.  If the decision is in favour of the person applying, the court should in the second stage consider the grounds of opposition on the merits at the appropriate time.

[19] The phraseology “and appears to the High Court to be a proper person” in rule 6 of Order 53 necessarily raises the question of locus standi in the same manner as the phrase “it considers that the applicant has a sufficient interest” under the English rule.  In Inland Revenue Commissioners case (supra) the House of Lords held in essence that, except in simple cases where it was appropriate at the earliest stage to find that the applicant for judicial review has no interest at all or sufficient interest, it was wrong to treat locus standi as a preliminary issue and in such cases the question of sufficient interest must be taken together with the legal and factual context of the application.  In Inland Revenue Commissioner case, Lord Wilberforce put it this way at p. 630 in:

“There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application, then it would be quite correct at the threshold to refuse him leave to apply.  The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications. But in other cases this will not be so.  In these it will be necessary to consider the powers and duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed.  In other words, the question of sufficient interest cannot, in such cases be considered in the abstract, or as an isolated point.  It must be taken together with the legal and factual context.”

From what we have said above, those words apply with equal force to the case of a person seeking to be heard as a proper person in opposition to application for judicial review.  It follows that where the case is not so obvious the final determination of the question whether a person seeking to be heard in opposition is a proper person should be made after the judicial review application has been heard on the merits and after his grounds of opposition have been heard. Furthermore, from close reading of rule 6 of order 53 together with rule 3(2) and 3(4) it seems that the phrase “proper person” is wider in scope of class of persons than the phrase “all persons directly affected”. We say so because although the application ought to be served on “all persons directly affected”, rule 3(4) gives court discretion at the hearing to order service on any other person “whether or not he is a person who ought to have been served under the foregoing provisions of this rule.” “………..At this stage, and where  the issue  is a simple  one, the  court can on perusing the affidavit or upon hearing brief arguments  and  without going  into the merits, determine  on prima facie basis whether  or not a  person intending  to be heard  is a proper person.  If the decision is in favour of the person  applying, the court should in the second stage consider the  grounds of  opposition  on the merits  at the appropriate  time.”

“[19].  The phraseology “ and  appears  to the High Court  to be  a proper person” in Rule  6  of Order  53  necessarily  raises  the question of locus  standi in the  same  manner  as the phrase “ it considers  that the applicant  has a sufficient interest” under the English rule”.

In Inland Revenue Commissioners case(supra) the House of Lords held in  essence that, except in  simple cases where it  was appropriate  at the earliest  stage  to find that the  applicant  for  judicial review  has no interest at  all or  sufficient interest at  all or sufficient  interest, it  was wrong to treat locus standi as a preliminary issue and  in such cases the question of sufficient  interest must be taken together with the legal and factual  context   of the application….

From what we have said above, those words  apply with equal force to the case of a person seeking to be heard as a proper  person in opposition to an application for judicial review.  It  follows that where the case is not so obvious the final  determination  of the question  whether  a person  seeking to be  heard in opposition is a proper person  should be  made after the judicial review  application has been  heard on  merits  and  after his grounds of  opposition  have been  heard.

Furthermore, from close reading of Rule 6 of Order  53  together with Rule 3(2) and 3(4) it seems that he  phrase  “proper person” is wider in scope of class of persons than the phrase “ all  persons directly affected.”  We say so because although the  application ought to be served on “all persons directly affected”, Rule 3(4) gives court discretion at the hearing to order service  on any other person “ whether  or not  he is a  person who ought to have been served under the foregoing provisions of this  rule.”

[20] The legal  principle  on locus standi has also  changed  with time and  the  restrictive technical  rules  of locus standi are now  considered in England as outdated ( see Speech of Lord  Diplock  in Inland  Commissioner’s case at page 644).

In Kenya  the  change  in legal policy is reflected  in Article  22  of the Constitution  2010 which gives  “ Every person” access to the High Court to enforce Bill of Rights including persons acting   in public interest.  The right to  a fair hearing  in Article 50 of the  Constitution is part of the  Bill of rights  and the High Court can, under, Article 23 enforce the bill of rights by an order of Judicial Review.  Similarly, Article 258 of the Constitution  gives locus  standi  to “Every  person including a person acting  in public interest to institute proceedings relating to the  contravention of the Constitution.

The substantive right to apply for Judicial Review and the attendant right to be heard in opposition are embedded in  common law and in the Law Reform Act with Order 53 regulating  the  procedure.  The  rigours  of restrictive concept of  locus standi   has further been  eroded  by Article  159(2)  (d)  of the Constitution which ordains that “justice shall be administered without regard to undue regard to procedural technicalities.

Thus today, the High Court should  be guided and ought  to have been guided in this case by the  liberal  constitutional philosophy  in the exercise of the discretion whenever the issue of locus standi arises in judicial review proceedings and generally in public law.  (See Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others Civil Appeal No. 290/2012)…….”

43. The Court of Appeal in the above long citation was  determining  the issue where  the High Court  had found   that the application by the proposed  party to be joined and be served  as an intended  party  mainly made under  rule  3(2)  and  3(4)  of Order  53  of the Civil Procedure Rule to  be incompetent. The High Court  had nonetheless held that  a person who desires  to become  a party to a judicial  review  application has to file  an appropriate  application at the  hearing  of the judicial review  motion.

44. The High Court further found that in essence the applicant  could not  be affected  by a decision  which had not  been made.  The Court of Appeal in allowing  the appeal  held that  the High Court  had made a fundamental error of law in dismissing the  appellant’s  application to be enjoined to  the  Judicial Review proceedings  because the appellant  was  closely connected with the  licencing  of BSM and  was therefore a proper  person to  be heard  in opposition to the judicial review application in the context of  Order  53  Rule 6  of the Civil Procedure Rules  and concluded :

“We are satisfied that the High Court did not  exercise  its discretion  judicially. It  misapprehended  the law on Judicial Review and the applicable test and ultimately  reached  a decision which  is  plainly  wrong.  The decision  to deny the  appellant a hearing  in a matter  which  the appellant   was so closely connected vitiated the subsequent  proceedings.”

45. From the above decision, I am persuaded that on the facts  presented  before  this court  by the exparte applicant  that  he should not have been appointed as tax representative for  Wananchi  Group of Companies, the latter Group of Companies automatically  became  so closely  connected to him, to  explain  whether the  applicant  had a relationship  with them to warrant  his appointment by Kenya Revenue Authority as a tax representative.  To hold otherwise would be to deny the proposed parties a right to be heard in opposition to proceedings to which they are mentioned  as persons  for whom the  exparte applicant  worked as Chief Executive Officer and whether he was the Chief Executive Officer for them at the time of his appointment as tax  representative  is a matter  of evidence  and proof thereof shall be  required  before a final  decision can be reached  by this court.

46. It therefore  follows that  this court  is satisfied that the proposed  applicants  have demonstrated  that they deserve  to be heard  in opposition to the substantive motion filed by the exparte  applicant herein.  They  are hereby  enjoined  as 2nd,  3rd  and  4th respondents.

47. However, the replying affidavit to be filed by the 2-4th respondents must not be in the violation of the orders  made by  consent in HCC 84/2017 by Honourable Ochieng J on 15th March  2017.  The depositions  must be limited  to reasons why the 2nd -4th respondents are persuaded  that the exparte  applicant  was correctly appointed as tax representative of Wananchi Group Limited, without initiating a fresh or any dispute  between themselves  and  the exparte  applicant,  other  than the  dispute pending before Honourable Ochieng J in the Commercial Division.

48. On the second issue of whether the  paragraph 6-37  of the affidavit  sworn by Joe Kamau should be struck out and therefore  expunged  from the record  for  being scandalous , embarrassing, defamatory by innuendo; irrelevant  or introducing  matters which were  barred by Honourable Ochieng J  in the HCC 84/2017, the 2nd-4th respondents claim that the exparte  applicant  in seeking  to challenge  his appointment  by Kenya Revenue Authority  as a tax  representative  did not make full disclosure  of all facts surrounding his appointment as such, which information the 1st respondent did not have and  which the 2nd -4th respondents posses hence the detailed affidavit setting out  all the matters in issue  that they consider place the  exparte applicant at the centre of the management  of  Wananchi Group  of Companies and that it is in the interest of justice  that information is available to this court for a just  determination of the matters in dispute.  Further, that the judicial Review  remedies being  discretionary, the exparte  applicant is under a duty to disclose all matters relating to the dispute  which he did not and which the  2nd-4th  respondents  have endeavoured  to disclose.

49. The exparte applicant on the other hand claims that the impugned paragraphs are embarrassing, bear defamatory  innuendos, scandalous and  are  intended to prejudice/intimidate  him and  disclose matters which  are barred by consent of  all the parties  hereto in HCC 84/2017.

50. I have  read the order  of  15th March  2017  issued by Ochieng J by consent of  the  parties to  HCC 84/201-.  East Africa  Capital Partners Management  LP Vs  Wananchi  Nominees Ltd, ISP Kenya Ltd  & East Coast  Telecoms  Limited.  The order  reads  inter alia:

“…..it is  hereby ordered  by consent:

That  the  parties to this suit be  and are hereby restrained  from disclosing, broadcasting or howsoever from divulging non public information in accordance with Clause 11(j) of the   Amended  and  Restated  Management Agreement  dated  9th June  2010;

That  the  parties  to this suit  are restrained  from the publication or broadcast of  these  proceedings, subject to any  orders of the court, requirements of civil procedure and/or any other requirements  of law.”

51. I note that the Restated Amended Management Agreement dated 9th June  2010 is annexed  as JK1 to the  affidavit  of  Joe Kamau at paragraph 6.

52. No doubt, the order barred non divulging of non public information  in accordance  with Clause  11(j) of the Restated Amended Management Agreement dated 9th June 2010. In my view, allowing that Agreement which is a private document to be  canvassed in this forum is tantamount to reviewing or setting  aside the orders of Ochieng J issued by consent  of all the parties to that court.

53. This court  has no power to issue orders that tend  to set aside  orders of  a court of  concurrent  jurisdiction and  which will, at the end  of  the day, vex or  embarrass the  parties to the suit.

54. Order No. 2  as issued by Ochieng J by consent of all the parties thereto leaves room for parties to that suit to seek to  review  those orders  or apply  under the law  for disclosure  of  details of those proceedings in accordance with the Civil Procedure  Act and  Rules  or other  requirements.  In my  view, therefore, it  was  only  sufficient  to disclose the  existence  of the suit and  not to divulge  all the information  regarding  that suit as  such detailed  disclosure  might jeopardize and  prejudice the ongoing arbitration proceedings  before the ICC  and   the fair  adjudication of HCC  84/2017.

55. It is  for that reason  that  I would, without delving into the issues of what those  proceedings  are all about, agree  with the exparte applicant  that it would be contemptuous of this court to allow  proceedings  in HCC 84/2017 to be dragged  into this matter.

56. Accordingly, and as  the 2nd-4th  respondents did file their motion  with grounds  which were sufficient  enough  to disclose  their interest  in  this matter, no prejudice  will be occasioned to them if the  paragraphs   impugned, and  which are  offensive  of the order of 15th March 2017  in HCC 84/2017 are struck out and  or expunged  from the affidavit and from the record all together.

57. Accordingly, I find and hold that paragraphs 6-37 which disclose  information  regarding the dealings   in the Wananchi  Group of Companies and in so far as  they refer  to the Amended and  Restated  Shareholders Agreement  dated  9th June  2010  are likely to violate the  order of  15th March 2017 in HCC  84/2017. they are hereby struck out and expunged from the record herein.

58. This court  follows the rule of law  and  would not  preside over  contemptuous  darts  that the  enjoined parties  have made  to the effect that they can be cited  for contempt.  It would be contemptuous  for this court, being  aware of  the orders of a court of competent and concurrent jurisdiction, to allow  a  blatant violation of those orders  in the  name of  disclosure, without  the parties  first seeking  to  review  those orders  to  allow  such disclosure.

59. Therefore, whether  the  impugned  paragraphs  are scandalous, defamatory or embarrassing  is  not for this  court to determine.  What I would  determine is  that the affidavit  paragraphs  as impugned are matters which are subject of orders in HCC  84/2017 which orders prohibited  disclosure.  The said  paragraphs  6-37 of the affidavit  of Joe Kamau sworn on 10th March  2017 are hereby expunged  from the record.

60. In the end, I allow  the  application for joinder  on conditions  as attached.  The  application for striking  out the  paragraphs  6-37  of the affidavit  of Joe Kamau  sworn  on  10th March  2017  is merited.  The  same  is allowed.  Each party  shall bear  their own  costs of their  respective  applications.

61. On timelines, the  2-4  respondents  are hereby  granted  14 days  from todate  to file  and  serve their replying  affidavits  limited  to the matters  stated herein and  without making  disclosures with regard  to the orders  of  15th March  2017 made  in HCC 84/2017  by Honourable  Ochieng J by consent of all  the parties.

Dated, signed and delivered in open court at Nairobi this 8th day of March 2018.

R.E. ABURILI

JUDGE

In the presence of:

Miss Omondi h/b for Mr Monari for the exparte applicant

Mr Koima h/b for Mr Nyaga for the 1st Respondent

Miss Wataka h/b for Mr Kiragu Kimani for the 2nd, 3rd and 4th Respondents

CA: Kombo