'Introduction
1. Before the Court is the Notice of Motion dated 16th September 2025 by which the Kenya Union of Journalists (KUJ) seeks leave to be joined to these proceedings as an interested party.
2. The Applicant seeks:
1) An order granting leave to be enjoined as an interested party
2) Any further or other orders the court may deem just
3) Costs to be in the cause.
3. The application is supported by the affidavit of Erick Oduor, sworn on 16th September 2025, who describes himself as the Secretary General of the Applicant and states that he has been duly authorised to swear the affidavit on its behalf.
4. The Applicant asserts that it is a trade union whose statutory and constitutional mandate includes the protection, promotion and defence of freedom of expression, freedom of the media, and access to information.
5. Applicant argues that the reliefs sought by the Plaintiff may impact upon those freedoms under Articles 33, 34 and 35 of the Constitution and Kenya’s obligations under Article 19 of the ICCPR. It therefore claims a direct interest in the matter.
6. The application is further supported by an affidavit sworn by the 2nd Defendant on 11th November 2025, in which he expressly endorses the Applicant’s request for joinder on the basis that the issues raised relate to the professional environment within which he operates as a journalist. The 2nd Defendant depones that he stands to benefit from KUJ’s participation, given his profession as a journalist. He contends that KUJ’s institutional experience will assist the Court in comprehending the wider media landscape within which the impugned publication in issue arose.
7. The Plaintiff opposes the Motion through her replying affidavit sworn on 30th September 2025.
8. The Plaintiff contends that the application is misconceived, incompetent and devoid of merit. She avers that the dispute before the Court is a private defamation claim between identified parties, and that KUJ’s institutional concerns are extraneous to the real issues in dispute.
9. The Plaintiff asserts that joinder will unnecessarily broaden the scope of the litigation, muddle the proceedings, confuse the issues and occasion delay. She further argues that KUJ has not demonstrated any prejudice it stands to suffer if not enjoined.
Issues for Determination
10. The Court has carefully considered the Notice of Motion dated 16th September 2025; the affidavit in support sworn by Erick Oduor on the same date; the supporting affidavit sworn by the 2nd Defendant on 11th November 2025; the replying affidavit sworn by the Plaintiff on 30th September 2025; together with the respective positions taken by the parties as disclosed therein, and has identified the following issues arising for determination:
1) Whether the Applicant satisfies the statutory and judicial threshold for joinder under Order 1 Rule 10(2)
2) Whether the Applicant has demonstrated a proximate and identifiable interest in the subject matter
3) Whether the Applicant has established prejudice it is likely to suffer upon non-joinder
4) Whether the Applicant has set out the substance, relevance and distinctiveness of its intended submissions
5) Whether, in the totality of circumstances, joinder will assist or confuse the issues for determination.
Analysis and Determination
11. Order 1 Rule 10(2) of the Civil Procedure Rules empowers the Court to order addition of a party whose presence is necessary to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit.
12. In Joseph Njau Kingori v Robert Maina Chege & 3 Others [2002] eKLR, the Court held that a party may only be joined where he is a necessary or proper party, where relief flows from him, or where the decree cannot be enforced without his participation.
13. In Julius Meme v Republic & Another [2004] eKLR, the Court held that joinder is permissible only where a party’s participation is necessary for the complete and effectual settlement of all issues, to protect a party who would otherwise be adversely affected, or to forestall multiplicity of proceedings.
14. The Supreme Court, in Petition (Application) No. E033 of 2023, reaffirming the principles in the Muruatetu decision, set the binding cumulative criteria for enjoinment of an interested party as follows:
1) The intended party must demonstrate a personal stake that is identifiable, proximate and not merely peripheral
2) The intended party must show specific and non-remote prejudice likely to be suffered upon non-joinder
3) The intended party must set out the submissions it intends to make, demonstrate their relevance and show that they are not a mere duplication of what existing parties will urge.
15. Having set out the applicable principles as distilled by the Supreme Court decision, and recognising that those principles are cumulative, binding and dispositive of any request for joinder, the Court must now consider whether, on the material presented and the pleadings before it, the Applicant has satisfied each of the requisite limbs. It is against that legal framework, and mindful of the constraints imposed by both precedent and the statutory scheme under Order 1 Rule 10(2), that the Court proceeds to determine the issues arising in this application.
1) Whether the Applicant has a proximate and identifiable interest
16. KUJ’s reliance on its general statutory mandate to defend media freedom, though legitimate, is broad, institutional and policy-based. The present suit is a specific defamation claim brought by a private litigant in respect of identified publications by identified Defendants. The Plaintiff seeks no orders directed at KUJ or the wider media fraternity.Consequently, KUJ’s asserted interest is abstract and peripheral, not proximate or identifiable as required by the Supreme Court.
1) Whether the Applicant has demonstrated prejudice
17. The Court has equally considered whether the Applicant has satisfied the second limb of the test in the Supreme Court decision which requires demonstration of real, non-speculative prejudice that would arise if the Applicant is excluded.
18. The affidavit of Erick Oduor does not identify any prejudice personal to KUJ. It does not show, for example, that KUJ will be bound by the Court’s findings, that its legal rights will be affected, or that its ability to perform its statutory functions will be impaired. The Applicant merely expresses concern that the outcome may have wider implications for media freedom.
19. That concern, however, is general and speculative. A party cannot rely on broad notions of public interest or policy considerations to ground joinder. Prejudice, in the legal sense contemplated by the Supreme Court, must be direct, identifiable and connected to the specific litigation—not abstract or remote.
20. The supporting affidavit of the 2nd Defendant does not cure this deficiency. While the 2nd Defendant asserts that KUJ’s participation may strengthen his defence or broaden the contextual landscape, the test for joinder is not whether an existing party finds the Applicant’s involvement strategically beneficial. Prejudice must be demonstrated by the Applicant itself, and must relate to its own rights or interests
21. The Court therefore finds that the Applicant has not established any prejudice it would suffer as a consequence of non-joinder.
3) Whether the Applicant has set out intended submissions
22. The invocation of constitutional and international norms relating to media freedom is stated in broad and general terms, without articulation of the concrete arguments it intends to present or their nexus to the pleaded issues.
23. The Applicant has not identified, with any degree of specificity, the submissions it proposes to advance, nor has it demonstrated how such submissions would bear upon the actual issues in controversy in this defamation claim.
24. Equally, the Applicant has not shown that any such submissions would be materially distinct from those available to, and properly within the remit of, the Defendants who, as media actors, are themselves fully capable of advancing any constitutional defences they deem appropriate.
25. The 2nd Defendant’s supporting affidavit similarly fails to identify any discrete or specialised submission that KUJ alone is positioned to offer, or that cannot be adequately canvassed by the parties already before the Court.
26. In the premises, the Applicant has not satisfied the third limb of the Supreme Court’s test which requires an intended interested party to set out the substance, relevance and distinctiveness of the submissions it seeks to make, and to demonstrate that such submissions will not merely replicate what the existing parties are capable of presenting.
4) The effect of the 2nd Defendant’s supporting affidavit
27. The Court has also considered the affidavit sworn by the 2nd Defendant on 11th November 2025. Whereas the 2nd Defendant asserts that the participation of KUJ may bolster his defence and shed light on the broader context of journalistic practice, the legal test for joinder is not predicated upon whether an existing party considers the Applicant’s involvement to be advantageous or strategically useful. Joinder turns solely on whether the Applicant itself satisfies the strict, cumulative criteria established in law, and not on the perceived convenience or support it may offer to a party already properly before the Court.
28. The Supreme Court has made it clear that an intended interested party must independently meet the cumulative criteria for joinder; endorsement by an existing party does not confer standing where the criteria have not been satisfied.
29. The 2nd Defendant’s affidavit cannot therefore cure any deficiencies in the Applicant’s case.
Disposition
28. From the foregoing analysis, the Court is satisfied that the Applicant has failed to demonstrate a proximate and legally cognisable interest, has not established any prejudice it is likely to suffer upon non-joinder, and has not articulated any distinct or relevant submissions within the meaning of the applicable principles. In the circumstances, the participation of the Applicant is neither necessary nor warranted for the effectual and complete adjudication of the issues before the Court.
29. In the end, I find that the Notice of Motion dated 16th September 2025 is devoid of merit and it is hereby dismissed with costs to the Plaintiff to be borne by the Applicant.
'
1. Before the Court is the Notice of Motion dated 16th September 2025 by which the Kenya Union of Journalists (KUJ) seeks leave to be joined to these proceedings as an interested party.
2. The Applicant seeks:
1) An order granting leave to be enjoined as an interested party
2) Any further or other orders the court may deem just
3) Costs to be in the cause.
3. The application is supported by the affidavit of Erick Oduor, sworn on 16th September 2025, who describes himself as the Secretary General of the Applicant and states that he has been duly authorised to swear the affidavit on its behalf.
4. The Applicant asserts that it is a trade union whose statutory and constitutional mandate includes the protection, promotion and defence of freedom of expression, freedom of the media, and access to information.
5. Applicant argues that the reliefs sought by the Plaintiff may impact upon those freedoms under Articles 33, 34 and 35 of the Constitution and Kenya’s obligations under Article 19 of the ICCPR. It therefore claims a direct interest in the matter.
6. The application is further supported by an affidavit sworn by the 2nd Defendant on 11th November 2025, in which he expressly endorses the Applicant’s request for joinder on the basis that the issues raised relate to the professional environment within which he operates as a journalist. The 2nd Defendant depones that he stands to benefit from KUJ’s participation, given his profession as a journalist. He contends that KUJ’s institutional experience will assist the Court in comprehending the wider media landscape within which the impugned publication in issue arose.
7. The Plaintiff opposes the Motion through her replying affidavit sworn on 30th September 2025.
8. The Plaintiff contends that the application is misconceived, incompetent and devoid of merit. She avers that the dispute before the Court is a private defamation claim between identified parties, and that KUJ’s institutional concerns are extraneous to the real issues in dispute.
9. The Plaintiff asserts that joinder will unnecessarily broaden the scope of the litigation, muddle the proceedings, confuse the issues and occasion delay. She further argues that KUJ has not demonstrated any prejudice it stands to suffer if not enjoined.
Issues for Determination
10. The Court has carefully considered the Notice of Motion dated 16th September 2025; the affidavit in support sworn by Erick Oduor on the same date; the supporting affidavit sworn by the 2nd Defendant on 11th November 2025; the replying affidavit sworn by the Plaintiff on 30th September 2025; together with the respective positions taken by the parties as disclosed therein, and has identified the following issues arising for determination:
1) Whether the Applicant satisfies the statutory and judicial threshold for joinder under Order 1 Rule 10(2)
2) Whether the Applicant has demonstrated a proximate and identifiable interest in the subject matter
3) Whether the Applicant has established prejudice it is likely to suffer upon non-joinder
4) Whether the Applicant has set out the substance, relevance and distinctiveness of its intended submissions
5) Whether, in the totality of circumstances, joinder will assist or confuse the issues for determination.
Analysis and Determination
11. Order 1 Rule 10(2) of the Civil Procedure Rules empowers the Court to order addition of a party whose presence is necessary to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit.
12. In Joseph Njau Kingori v Robert Maina Chege & 3 Others [2002] eKLR, the Court held that a party may only be joined where he is a necessary or proper party, where relief flows from him, or where the decree cannot be enforced without his participation.
13. In Julius Meme v Republic & Another [2004] eKLR, the Court held that joinder is permissible only where a party’s participation is necessary for the complete and effectual settlement of all issues, to protect a party who would otherwise be adversely affected, or to forestall multiplicity of proceedings.
14. The Supreme Court, in Petition (Application) No. E033 of 2023, reaffirming the principles in the Muruatetu decision, set the binding cumulative criteria for enjoinment of an interested party as follows:
1) The intended party must demonstrate a personal stake that is identifiable, proximate and not merely peripheral
2) The intended party must show specific and non-remote prejudice likely to be suffered upon non-joinder
3) The intended party must set out the submissions it intends to make, demonstrate their relevance and show that they are not a mere duplication of what existing parties will urge.
15. Having set out the applicable principles as distilled by the Supreme Court decision, and recognising that those principles are cumulative, binding and dispositive of any request for joinder, the Court must now consider whether, on the material presented and the pleadings before it, the Applicant has satisfied each of the requisite limbs. It is against that legal framework, and mindful of the constraints imposed by both precedent and the statutory scheme under Order 1 Rule 10(2), that the Court proceeds to determine the issues arising in this application.
1) Whether the Applicant has a proximate and identifiable interest
16. KUJ’s reliance on its general statutory mandate to defend media freedom, though legitimate, is broad, institutional and policy-based. The present suit is a specific defamation claim brought by a private litigant in respect of identified publications by identified Defendants. The Plaintiff seeks no orders directed at KUJ or the wider media fraternity.Consequently, KUJ’s asserted interest is abstract and peripheral, not proximate or identifiable as required by the Supreme Court.
1) Whether the Applicant has demonstrated prejudice
17. The Court has equally considered whether the Applicant has satisfied the second limb of the test in the Supreme Court decision which requires demonstration of real, non-speculative prejudice that would arise if the Applicant is excluded.
18. The affidavit of Erick Oduor does not identify any prejudice personal to KUJ. It does not show, for example, that KUJ will be bound by the Court’s findings, that its legal rights will be affected, or that its ability to perform its statutory functions will be impaired. The Applicant merely expresses concern that the outcome may have wider implications for media freedom.
19. That concern, however, is general and speculative. A party cannot rely on broad notions of public interest or policy considerations to ground joinder. Prejudice, in the legal sense contemplated by the Supreme Court, must be direct, identifiable and connected to the specific litigation—not abstract or remote.
20. The supporting affidavit of the 2nd Defendant does not cure this deficiency. While the 2nd Defendant asserts that KUJ’s participation may strengthen his defence or broaden the contextual landscape, the test for joinder is not whether an existing party finds the Applicant’s involvement strategically beneficial. Prejudice must be demonstrated by the Applicant itself, and must relate to its own rights or interests
21. The Court therefore finds that the Applicant has not established any prejudice it would suffer as a consequence of non-joinder.
3) Whether the Applicant has set out intended submissions
22. The invocation of constitutional and international norms relating to media freedom is stated in broad and general terms, without articulation of the concrete arguments it intends to present or their nexus to the pleaded issues.
23. The Applicant has not identified, with any degree of specificity, the submissions it proposes to advance, nor has it demonstrated how such submissions would bear upon the actual issues in controversy in this defamation claim.
24. Equally, the Applicant has not shown that any such submissions would be materially distinct from those available to, and properly within the remit of, the Defendants who, as media actors, are themselves fully capable of advancing any constitutional defences they deem appropriate.
25. The 2nd Defendant’s supporting affidavit similarly fails to identify any discrete or specialised submission that KUJ alone is positioned to offer, or that cannot be adequately canvassed by the parties already before the Court.
26. In the premises, the Applicant has not satisfied the third limb of the Supreme Court’s test which requires an intended interested party to set out the substance, relevance and distinctiveness of the submissions it seeks to make, and to demonstrate that such submissions will not merely replicate what the existing parties are capable of presenting.
4) The effect of the 2nd Defendant’s supporting affidavit
27. The Court has also considered the affidavit sworn by the 2nd Defendant on 11th November 2025. Whereas the 2nd Defendant asserts that the participation of KUJ may bolster his defence and shed light on the broader context of journalistic practice, the legal test for joinder is not predicated upon whether an existing party considers the Applicant’s involvement to be advantageous or strategically useful. Joinder turns solely on whether the Applicant itself satisfies the strict, cumulative criteria established in law, and not on the perceived convenience or support it may offer to a party already properly before the Court.
28. The Supreme Court has made it clear that an intended interested party must independently meet the cumulative criteria for joinder; endorsement by an existing party does not confer standing where the criteria have not been satisfied.
29. The 2nd Defendant’s affidavit cannot therefore cure any deficiencies in the Applicant’s case.
Disposition
28. From the foregoing analysis, the Court is satisfied that the Applicant has failed to demonstrate a proximate and legally cognisable interest, has not established any prejudice it is likely to suffer upon non-joinder, and has not articulated any distinct or relevant submissions within the meaning of the applicable principles. In the circumstances, the participation of the Applicant is neither necessary nor warranted for the effectual and complete adjudication of the issues before the Court.
29. In the end, I find that the Notice of Motion dated 16th September 2025 is devoid of merit and it is hereby dismissed with costs to the Plaintiff to be borne by the Applicant.
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