Okoiti v National Assembly & 3 others; Senate (Interested Party); Leader of Minority Party, National Assembly (Applicant) (Petition E469 of 2022)  KEHC 795 (KLR) (Constitutional and Human Rights) (13 February 2023) (Ruling)
Neutral citation:  KEHC 795 (KLR)
Republic of Kenya
Petition E469 of 2022
HI Ong'udi, J
February 13, 2023
Okiya Omtata Okoiti
Parliamentary Service Commission
Director General, Parliamentary Joint Services
Leader of Minority Party, National Assembly
1.In the petition dated 6th October, 2022 the petitioner is challenging the constitutionality of the Parliamentary Service Act (No 22 of 2019), among other prayers on the same.
2.Before this Court are four (4) applications of parties seeking enjoinment as interested parties. The said applications are by:i.Leader of Minority Party National Assembly dated 30th November 2022.ii.Chairperson Liaison Committee National Assembly dated 2nd December 2022iii.Hon. Samuel Chepkonga (M.P) dated 30th November 2022iv.Leader of Majority Party National Assembly dated 30th November 2022.
3.Submissions dated 19th January 2022 (sic) by Mr. Cheboryot for Hon. Samuel Chepkonga and those dated 23rd January 2023 by M/s Khadambi for the Leader of Minority were filed. When the matter came for mention on 9th February 2023, none of the parties present opposed the applications. Though not opposing the application the petitioner wondered whether it was really necessary for the applicants be enjoined since their interests were well taken care of by the respondents and interested party.
4.The guiding principles upon which courts make findings on an application for joinder of interested parties are now fully settled.
5.The law for joinder of interested parties for Constitutional petitions is set forth in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 referred to as the Mutunga Rules. The Mutunga Rules under Section 2 define an ‘interested party’ as:‘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’.
6.The Supreme Court in the case of Trusted Society of Human Rights Alliance (supra) echoed this principle by stating as follows:
7.The addition of a joinder such as an interested party is provided for under Rule 5 (d) (ii) of the Mutunga Rules. It states that:
8.The applicable principles in an application for joinder as an interested party were set out in the Supreme Court decision of Francis Karioki Muruatetu Ltd & Another V Republic & 5 others (2016) eKLR where it underscored the principles as follows:
9.Furthermore, at Paragraph 41, the Supreme Court noted as follows:
10.To be joined as an interested party is therefore not a matter of right and neither is it automatic. Any joinder to, or appearance in proceedings is discretionary and each case must be examined on its own merits and circumstances as against the set principles. In every application for joinder the paramount consideration by the Court will be the interest of the primary parties.
11.The question that begs an answer is whether the applicants have satisfied the set principles for enjoinment in these proceedings as interested parties. All the applicants are members of the National Assembly. What is being challenged is a statute that was enacted (Parliamentary Service Act – No 22 of 2019), and various sections of statutes which were allegedly enacted without the participation of the Senate.
12.The National Assembly which comprises of all the Members of Parliament is the body that enacts legislation. Any special role that may have been performed by the applicants in the enactment of the law that is being challenged will be well highlighted through the 1st respondent. No individual Member of Parliament will be personally affected by the outcome of these proceedings, to make them participate in the suit, as parties.
13.Will this Court be able to reach a definitive determination in the petition without the intended interested parties? The answer is yes, the reason being that the 1st respondent will bring on board all the material that the applicants have. This will avoid unnecessary repetition of facts.
14.The above being my finding I conclude that the applications for joinder dated 30th November 2022 and 2nd December 2022 have not satisfied the set principles. They are dismissed with no order for costs.
DELIVERED VIRTUALLY, DATED AND SIGNED THIS 13TH DAY OF FEBRUARY, 2023 IN OPEN COURT AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURT