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Legal requirements to be enjoined as an interested party in Supreme Court Proceedings

Njonjo Mue & Another v Chairperson of Independent Electoral and Boundaries Commission & 4 Others [2017] eKLR

Presidential Election Petition 4 of 2017

(Application for Joinder as an Interested Party)

Supreme Court of Kenya

D. Maraga, CJ, P. Mwilu, DCJ, J. B. Ojwang, S. Wanjala, N. Ndung’u and I. Lenaola, SCJJ

November 14, 2017

Reported by Chelimo Eunice

Civil Practice & Procedure – parties – parties to a suit – joinder as an interested party - where Applicant applied to be admitted as an interested party in proceedings before the Supreme Court – circumstances in which a party can be admitted as an interested party in a matter – where the Applicant was a presidential candidate in the fresh Presidential Election - whether the Applicant could be admitted as an interested party in the circumstances –Supreme Court Rules, 2012, rule 25; Supreme Court (Presidential Election Petition) Rules, 2017, rule 4 (2).

Brief facts:

Ekuru Aukot, the Party Leader of the Thirdway Alliance Kenya, made an application for joinder as an interested party in the Presidential Election Petition No. 4 of 2017. He contended that he had direct and legitimate interest in the petition; that he was a presidential candidate for both the general election held on August 8, 2017 and the fresh presidential election held on October 26, 2017; that being a presidential candidate in the election which was the subject of the instant petition, he would suffer prejudice if he was not enjoined as a party in the proceedings; that he would advance submissions that were relevant and useful to the petition and which would be different from those of the other parties since he had been an active player in the elections and had gathered crucial information, facts and analysis that had a direct bearing on the instant proceedings and the ultimate outcome; and, that he would be directly affected by the outcome of the instant petition.

The Applicant further contended that he had made a similar application within Presidential Election Petition No. 1 of 2017 and the Court had found that he would have been prejudiced if not enjoined and that he had an identifiable stake in the matter in line with the criteria laid down in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2015] eKLR and Francis Karioki Muruatetu & another v Republic & 5 others, Supreme Court Petition No. 15 & 16 of 2015 (consolidated) [2016] eKLR.

Issues:

1. What were the legal requirements governing applications for parties to be enjoined as interested parties in Supreme Court Proceedings?
2. Whether the Applicant satisfied the legal requirements governing applications for parties to be enjoined as interested parties in Supreme Court Proceedings.

Relevant Provisions of the Law

The Supreme Court Rules, 2012;

Rule 25; Interventions;

(1) A person may at any time in any proceedings before the Court apply for leave to be joined as an interested party.

(2) an application under this rule shall include :-

(a) a description of the interested party;

(b) any prejudice that the interested party would suffer if the intervention was denied; and

(c) the grounds or submissions to be advanced by the person interested in the proceeding, their relevance to the proceedings and the reasons for believing that the submissions will be useful to the Court and different from those of the other parties.

(4) An application under this rule shall be determined on the basis of written submissions. Provided that the Court may, where the applicant is unrepresented, direct that submissions may not be made orally.

The Supreme Court (Presidential Election Petition) Rules, 2017;

Rule 4 (2);

4(2); Where there is no applicable provision in the Act or in these Rules, the procedures set out in the Supreme Court Rules, 2017 in so far as they are not inconsistent with the Act or these Rules, shall apply to an election petition.

Held:

1. The Applicant qualified to be joined as an interested party and allowed the application under Rule 25 of the Supreme Court Rules as read with Rule 4(2) of the Supreme Court (Presidential Election Petition) Rules, 2017.
2. The application met the principles laid out in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013[2015]eKLR and Francis Karioki Muruatetu & another v Republic & 5 others, Supreme Court Petition No. 15 & 16 of 2015 (consolidated)[2016]eKLR in that the Applicant having been a presidential candidate in the fresh presidential election would have been directly affected by the outcome of the petition in the event of invalidation of the declared results.

Application allowed.