1. INTRODUCTION
1. This Court is seized of three interlocutory applications arising from proceedings before the Competition Tribunal. The first is the Appellant’s Notice of Motion dated 5th November 2025 seeking a stay of execution of the Tribunal’s judgment delivered on 11th September 2025 pending determination of the appeal. The second is the application dated 22nd January 2026 by the Centre for Environmental and Social Justice seeking joinder as an Interested Party. The third is the appellant’s application dated 8th February seeking that the second application be struck out. The Court has noted the proliferation of interlocutory applications, which only serve to cloud the substantive issues, and will therefore determine all applications in this ruling.
2. The Respondent, though duly served and having entered an appearance, did not participate in the joinder proceedings. The Court further clarifies at the outset that questions touching on the legality, jurisdiction, procedural validity, evidential sufficiency, or constitutional propriety of the Tribunal’s decision are strictly reserved for the substantive appeal. This Court must avoid any determination that would prejudice or predetermine the appeal, consistent with the appellate structure under the law.
3. In determining these applications, the Court is guided by Articles 10, 47, 48, 50, 159 and 259 of the Constitution, Sections 1A and 1B of the Civil Procedure Act, and Orders 1 Rule 10(2) and 42 Rule 6 of the Civil Procedure Rules. The Court is acutely aware that it sits at the intersection of constitutional adjudication and commercial litigation, where the imperatives of fairness, expedition, proportionality, and preservation of appellate efficacy must be balanced. Interlocutory discretion is therefore not mechanical but a structured constitutional exercise aimed at safeguarding both justice and the integrity of the judicial process.
BACKGROUND AND PLEADINGS
4. The Appellant’s application for stay is supported by the affidavit of Suraj Patel, a Director of the Appellant, who depones that judgment was delivered by the Tribunal on 11th September 2025 and received by the Appellant on 6th October 2025, following which a Memorandum of Appeal was filed on 4th November 2025. He characterizes the judgment as erroneous and unconstitutional, alleging violations of Articles 47 and 50 of the Constitution. He further depones that the decretal sum of Kshs. 86,985,149.62 is substantial, and that immediate execution would cause severe commercial prejudice, while asserting that the Respondent would suffer no prejudice if a stay is granted. No substantive opposition was filed by the Respondent.
5. The joinder application is supported by the affidavit of Japheth Chega on behalf of the Centre for Environmental and Social Justice, who describes the entity as a human rights defender with interest in consumer protection and competition law enforcement. He depones that the dispute involves substantial public interest considerations arising from alleged anti-competitive conduct affecting consumers in the steel industry. He further raises concerns regarding the Tribunal’s composition at the time of delivery of judgment and contends that the appeal is an abuse of process intended to avoid compliance. The Appellant opposed the application through affidavits sworn by Suraj Patel and Nancy Wanjiru, who challenge the existence of the entity based on negative registry searches and question the authority of the deponent.
6. The appellant’s application seeking to strike out the said joinder application was supported by the affidavit of Suraj Patel, who argues that the intended interested party as a non-existent entity not recognized by law. That a thorough search was done at the offices of the registrar of companies, registrar of societies, and the public benefits organization registers, but it was not found. He also pleads that the intended interested party has not established a proximate, clear interest and prejudice to be suffered if they are not allowed to join. He also faults Mr. Chega for lacking the authority given by the intended interested party.
3. ISSUES FOR DETERMINATION
6. The Court identifies two consolidated issues:
a. whether the application for joinder meets the constitutional and jurisprudential threshold, and
b. b. whether the application for stay satisfies the statutory and constitutional requirements under Order 42 Rule 6 of the Civil Procedure Rules.
4. APPLICATION FOR JOINDER
7. The legal foundation for joinder is Order 1 Rule 10(2) of the Civil Procedure Rules, which empowers the Court to join a party whose presence is necessary for effectual and complete adjudication of all questions in dispute. The Supreme Court in Trusted Society of Human Rights Alliance v Mumo Matemu and Francis Karioki Muruatetu v Republic established that joinder is not automatic but is anchored on demonstrable interest, prejudice, and relevance of contribution to proceedings.
8. This Court further recognises that joinder jurisprudence has evolved beyond procedural necessity into a constitutional instrument of participatory justice under Article 10 of the Constitution. Where proceedings implicate regulatory enforcement with broader economic and consumer implications, courts are required to adopt an interpretive approach that facilitates meaningful participation without distorting the adversarial structure. The Court must therefore ensure that inclusion of third parties enhances, rather than complicates, adjudication.
9. In the present matter, the Court is satisfied that the dispute arises from competition enforcement involving a substantial monetary penalty with potential implications for market conduct and consumer welfare. The intended Interested Party demonstrates a sufficient public interest nexus in these proceedings. While questions have been raised regarding its legal registration and authority, the Court notes that the threshold for joinder is not identical to that of instituting substantive proceedings, and, under Article 260 of the Constitution, “person” includes bodies whether incorporated or unincorporated. The decisive consideration remains whether participation will assist the Court in resolving the issues comprehensively and fairly.
10. The Court therefore finds that the intended Interested Party meets the constitutional and jurisprudential threshold for joinder, as its participation will enrich the Court’s understanding of the regulatory and public interest dimensions of the dispute without displacing the primary adversarial structure between the Appellant and Respondent
STAY OF EXECUTION
11. The application for stay is governed by Order 42 Rule 6(2), which requires proof of substantial loss, absence of unreasonable delay, and provision of security. The Court is guided by the principles in Mukuma v Abuoga and Machira v East African Standard , which underscore that these requirements are cumulative and must be satisfied conjunctively.
12. The Court is satisfied that the application was filed without unreasonable delay, given the chronology of receipt of judgment and filing of appeal. On substantial loss, the Court is persuaded that the decretal sum of Kshs. 86,985,149.62 is significant in commercial terms and that immediate execution carries a real risk of rendering the appeal nugatory should it ultimately succeed. In commercial appellate jurisprudence, substantial loss is not assessed in abstract arithmetic terms but in terms of practical injustice and the ability to restore parties to their original position after execution.
13. The Court further situates this inquiry within a constitutional framework. The right of appeal, though statutory, is an essential component of access to justice under Article 48 and fair hearing under Article 50. At the same time, the successful litigant retains a legitimate expectation to enjoy the fruits of judgment. The Court must therefore undertake a structured proportionality balancing exercise, ensuring that neither right is disproportionately impaired.
14. Applying proportionality, the Court finds that the objective of preserving appellate efficacy is legitimate, that stay is rationally connected to that objective, that no less restrictive means have been demonstrated to adequately preserve the appeal, and that the balance of interests favours preservation of the status quo. The Court is therefore satisfied that the threshold for stay has been met.
16. On security, while ordinarily mandatory, the Court retains discretion depending on the circumstances of each case. Given the need to preserve the subject matter and ensure that the appeal is not rendered illusory, the Court finds it appropriate to grant a stay without imposing further financial conditions at this interlocutory stage.
17. This Court emphasises that interlocutory discretion in commercial and regulatory appeals is not purely procedural but is constitutionally infused. It requires the Court to integrate principles of proportionality, fairness, access to justice, and commercial certainty. Competition law disputes, in particular, operate at the intersection of private rights and public regulatory enforcement, necessitating judicial sensitivity to both economic consequences and constitutional guarantees.
18. The Court further recognises that interlocutory relief serves a preservatory function. It is not intended to determine rights but to ensure that the appellate process remains meaningful. The integrity of appellate adjudication would be undermined if execution rendered the appeal academic or incapable of effective remedy. The court in arriving at this decision took into account the objections as to the propriety of the appeal and found that those can be adequately addressed in the appeal itself instead of clogging the system with interlocutory applications
DISPOSITION AND FINAL ORDERS
18. Having carefully considered the pleadings, affidavits, statutory framework, constitutional principles, and applicable jurisprudence, the Court is satisfied that the two main applications meet the legal threshold.
19. The Court accordingly grants the application for joinder and the application for stay of execution. It follows that the appellant’s application for striking out the application for joinder is hereby dismissed. The Centre for Environmental and Social Justice is enjoined as an Interested Party, and execution of the Tribunal’s judgment is stayed pending determination of the appeal. The appeal shall be heard on a priority basis, and costs shall abide the outcome of the appeal.
20. The appellant is to expedite the preparation and service of the record of the appeal. Mention on 16th June 2026 before the Deputy Registrar.
It is so ordered.
Dated, signed and delivered in Open Court/Online through MS Teams this …14th… day of May……… 2026.
HON. LADY JUSTICE W. K. MICHENI JUDGE
In the presence of
For the applicant N/A
For the respondent Otuoma holding brief for Onyoni
For the interested party, Wambua holding brief for Kasimu for the intended interested party
applicant
1. This Court is seized of three interlocutory applications arising from proceedings before the Competition Tribunal. The first is the Appellant’s Notice of Motion dated 5th November 2025 seeking a stay of execution of the Tribunal’s judgment delivered on 11th September 2025 pending determination of the appeal. The second is the application dated 22nd January 2026 by the Centre for Environmental and Social Justice seeking joinder as an Interested Party. The third is the appellant’s application dated 8th February seeking that the second application be struck out. The Court has noted the proliferation of interlocutory applications, which only serve to cloud the substantive issues, and will therefore determine all applications in this ruling.
2. The Respondent, though duly served and having entered an appearance, did not participate in the joinder proceedings. The Court further clarifies at the outset that questions touching on the legality, jurisdiction, procedural validity, evidential sufficiency, or constitutional propriety of the Tribunal’s decision are strictly reserved for the substantive appeal. This Court must avoid any determination that would prejudice or predetermine the appeal, consistent with the appellate structure under the law.
3. In determining these applications, the Court is guided by Articles 10, 47, 48, 50, 159 and 259 of the Constitution, Sections 1A and 1B of the Civil Procedure Act, and Orders 1 Rule 10(2) and 42 Rule 6 of the Civil Procedure Rules. The Court is acutely aware that it sits at the intersection of constitutional adjudication and commercial litigation, where the imperatives of fairness, expedition, proportionality, and preservation of appellate efficacy must be balanced. Interlocutory discretion is therefore not mechanical but a structured constitutional exercise aimed at safeguarding both justice and the integrity of the judicial process.
BACKGROUND AND PLEADINGS
4. The Appellant’s application for stay is supported by the affidavit of Suraj Patel, a Director of the Appellant, who depones that judgment was delivered by the Tribunal on 11th September 2025 and received by the Appellant on 6th October 2025, following which a Memorandum of Appeal was filed on 4th November 2025. He characterizes the judgment as erroneous and unconstitutional, alleging violations of Articles 47 and 50 of the Constitution. He further depones that the decretal sum of Kshs. 86,985,149.62 is substantial, and that immediate execution would cause severe commercial prejudice, while asserting that the Respondent would suffer no prejudice if a stay is granted. No substantive opposition was filed by the Respondent.
5. The joinder application is supported by the affidavit of Japheth Chega on behalf of the Centre for Environmental and Social Justice, who describes the entity as a human rights defender with interest in consumer protection and competition law enforcement. He depones that the dispute involves substantial public interest considerations arising from alleged anti-competitive conduct affecting consumers in the steel industry. He further raises concerns regarding the Tribunal’s composition at the time of delivery of judgment and contends that the appeal is an abuse of process intended to avoid compliance. The Appellant opposed the application through affidavits sworn by Suraj Patel and Nancy Wanjiru, who challenge the existence of the entity based on negative registry searches and question the authority of the deponent.
6. The appellant’s application seeking to strike out the said joinder application was supported by the affidavit of Suraj Patel, who argues that the intended interested party as a non-existent entity not recognized by law. That a thorough search was done at the offices of the registrar of companies, registrar of societies, and the public benefits organization registers, but it was not found. He also pleads that the intended interested party has not established a proximate, clear interest and prejudice to be suffered if they are not allowed to join. He also faults Mr. Chega for lacking the authority given by the intended interested party.
3. ISSUES FOR DETERMINATION
6. The Court identifies two consolidated issues:
a. whether the application for joinder meets the constitutional and jurisprudential threshold, and
b. b. whether the application for stay satisfies the statutory and constitutional requirements under Order 42 Rule 6 of the Civil Procedure Rules.
4. APPLICATION FOR JOINDER
7. The legal foundation for joinder is Order 1 Rule 10(2) of the Civil Procedure Rules, which empowers the Court to join a party whose presence is necessary for effectual and complete adjudication of all questions in dispute. The Supreme Court in Trusted Society of Human Rights Alliance v Mumo Matemu and Francis Karioki Muruatetu v Republic established that joinder is not automatic but is anchored on demonstrable interest, prejudice, and relevance of contribution to proceedings.
8. This Court further recognises that joinder jurisprudence has evolved beyond procedural necessity into a constitutional instrument of participatory justice under Article 10 of the Constitution. Where proceedings implicate regulatory enforcement with broader economic and consumer implications, courts are required to adopt an interpretive approach that facilitates meaningful participation without distorting the adversarial structure. The Court must therefore ensure that inclusion of third parties enhances, rather than complicates, adjudication.
9. In the present matter, the Court is satisfied that the dispute arises from competition enforcement involving a substantial monetary penalty with potential implications for market conduct and consumer welfare. The intended Interested Party demonstrates a sufficient public interest nexus in these proceedings. While questions have been raised regarding its legal registration and authority, the Court notes that the threshold for joinder is not identical to that of instituting substantive proceedings, and, under Article 260 of the Constitution, “person” includes bodies whether incorporated or unincorporated. The decisive consideration remains whether participation will assist the Court in resolving the issues comprehensively and fairly.
10. The Court therefore finds that the intended Interested Party meets the constitutional and jurisprudential threshold for joinder, as its participation will enrich the Court’s understanding of the regulatory and public interest dimensions of the dispute without displacing the primary adversarial structure between the Appellant and Respondent
STAY OF EXECUTION
11. The application for stay is governed by Order 42 Rule 6(2), which requires proof of substantial loss, absence of unreasonable delay, and provision of security. The Court is guided by the principles in Mukuma v Abuoga and Machira v East African Standard , which underscore that these requirements are cumulative and must be satisfied conjunctively.
12. The Court is satisfied that the application was filed without unreasonable delay, given the chronology of receipt of judgment and filing of appeal. On substantial loss, the Court is persuaded that the decretal sum of Kshs. 86,985,149.62 is significant in commercial terms and that immediate execution carries a real risk of rendering the appeal nugatory should it ultimately succeed. In commercial appellate jurisprudence, substantial loss is not assessed in abstract arithmetic terms but in terms of practical injustice and the ability to restore parties to their original position after execution.
13. The Court further situates this inquiry within a constitutional framework. The right of appeal, though statutory, is an essential component of access to justice under Article 48 and fair hearing under Article 50. At the same time, the successful litigant retains a legitimate expectation to enjoy the fruits of judgment. The Court must therefore undertake a structured proportionality balancing exercise, ensuring that neither right is disproportionately impaired.
14. Applying proportionality, the Court finds that the objective of preserving appellate efficacy is legitimate, that stay is rationally connected to that objective, that no less restrictive means have been demonstrated to adequately preserve the appeal, and that the balance of interests favours preservation of the status quo. The Court is therefore satisfied that the threshold for stay has been met.
16. On security, while ordinarily mandatory, the Court retains discretion depending on the circumstances of each case. Given the need to preserve the subject matter and ensure that the appeal is not rendered illusory, the Court finds it appropriate to grant a stay without imposing further financial conditions at this interlocutory stage.
17. This Court emphasises that interlocutory discretion in commercial and regulatory appeals is not purely procedural but is constitutionally infused. It requires the Court to integrate principles of proportionality, fairness, access to justice, and commercial certainty. Competition law disputes, in particular, operate at the intersection of private rights and public regulatory enforcement, necessitating judicial sensitivity to both economic consequences and constitutional guarantees.
18. The Court further recognises that interlocutory relief serves a preservatory function. It is not intended to determine rights but to ensure that the appellate process remains meaningful. The integrity of appellate adjudication would be undermined if execution rendered the appeal academic or incapable of effective remedy. The court in arriving at this decision took into account the objections as to the propriety of the appeal and found that those can be adequately addressed in the appeal itself instead of clogging the system with interlocutory applications
DISPOSITION AND FINAL ORDERS
18. Having carefully considered the pleadings, affidavits, statutory framework, constitutional principles, and applicable jurisprudence, the Court is satisfied that the two main applications meet the legal threshold.
19. The Court accordingly grants the application for joinder and the application for stay of execution. It follows that the appellant’s application for striking out the application for joinder is hereby dismissed. The Centre for Environmental and Social Justice is enjoined as an Interested Party, and execution of the Tribunal’s judgment is stayed pending determination of the appeal. The appeal shall be heard on a priority basis, and costs shall abide the outcome of the appeal.
20. The appellant is to expedite the preparation and service of the record of the appeal. Mention on 16th June 2026 before the Deputy Registrar.
It is so ordered.
Dated, signed and delivered in Open Court/Online through MS Teams this …14th… day of May……… 2026.
HON. LADY JUSTICE W. K. MICHENI JUDGE
In the presence of
For the applicant N/A
For the respondent Otuoma holding brief for Onyoni
For the interested party, Wambua holding brief for Kasimu for the intended interested party
applicant