1. The application before court is a motion dated 17 February 2025 expressed to be brought under rule 1, 2, 3, 4, 5 & 6 of Part I and Rule 7(1) of Part II of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The application is by Robinson Onyango Malombo who trades as O.M. Malombo & Co. Advocates and he seeks, in the main, to be joined to the petition before court as an interested party.
2. The application is supported by Malombo’s own affidavit in which he has sworn that he is the plaintiff in Mombasa Chief Magistrates Court Civil Case No. E613 of 2023; The petitioner in this petition is the defendant in the same suit.
3. According to Malombo, the instant petition is all about the magistrates’ court case in which, as noted, he and the petitioner are the only parties. Accordingly, any orders issued in this petition will have a bearing in the suit in the court below.
4. Furthermore, Malombo swears that he has severally been mentioned by the petitioner, in the petition and in the application seeking conservatory orders. Even then he only became aware of the instant petition when the magistrates’ court could not deliver a ruling in the suit before it on the scheduled date of 13 February 2025 because, apparently, the proceedings in the magistrates’ court had been stayed by an order from this Honourable Court. According to Malombo, the order staying proceedings in the magistrates’ court is prejudicial to his case. For these reasons, Malombo wants to be joined to this petition.
5. Mbau, the petitioner in instant petition and the respondent in Malombo’s application, has opposed the application and filed a replying affidavit to that effect. Nonetheless, he as not disputed the fact of the pending suit between him and Malombo in the magistrates’ court. As a matter of fact, he has gone further to swear that:
“…the said dispute arises from the applicant's unprecedented, outrageous and despicable efforts to steal my fees amounting to Kshs. 102 million due from the county government of Mombasa for a period now exceeding 12 years by blocking payment of the same in the hope that the fee account in which the fees are comprised can be miraculously converted to him by the said Government thereby causing me severe hardship and distress persistently for the said prolonged period.”
6. According to Mbau, the orders sought in the petition are against the Honourable Mr. Kalo, the learmed magistate presiding over the case in the magistrates’ court and whom the petitioner wants to be barred from hearing the case because of what Mbau alleges to be “impunity, malice and irregularity” on the learned magistrate’s part. For this reason, according to Mbau, it is not necessary to admit Malombo in this petition, in any capacity.
7. I have had the opportunity to read the petitioner’s petition and I note, at the very outset, that it is true as deposed by Malombo that he has been mentioned in the petition and, on occasions, adversely. Besides the depositions part of which I have quoted above, the following paragraphs in the petition illustrate this point:
“3. In or about the year 2011, the petitioner an advocate of the High Court of Kenya, led one Robinson Onyango Malombo, also an advocate, in Civil Appeal no. 283 of 2007 (Kenya Ports Authority -vs Municipal Council of Mombasa & Anor) pursuant to instructions given by the defunct Municipal Council of Mombasa.
4. Under the terms of engagement for the said work, the fees for the same were to be shared equally between the 2 advocates.
5. In furtherance of the process of payment of the petitioner's share of the said fees, the council lumped the same with a balance of fees previously incurred by it in favour of the petitioner in an existing account and continued paying the aggregate sum in instalments. By the time of the council's dissolution on the onset of devolution, the balance due on the account was Kshs. 102 million, which balance was inherited by the County Government of Mombasa.
6. Over time, the said Malombo took it upon himself, in typical fashion, to try and steal the said balance of fees by, in his weird and absurd expectation, having the said account converted to him by the County Government of Mombasa.
7. After the County Government of Mombasa replaced the Council on the onset of devolution, the petitioner endavoured to be paid the said sum of money by the former only for his efforts to be frustrated by the said Malombo, who interfered with the payment of the same by the county government by effectively blocking the payment.
10.On 8th and 9th August, 2023 respectively the said Malombo irregularly moved the respondent to make orders for the hearing and disposal of a preliminary objection dated 8th August, 2023 seeking to strike out the petitioner's counterclaim on grounds of lack of pecuniary jurisdiction on the part of the respondent.
25. If this amended petition is not allowed, the petitioner will suffer irreparable harm because the Chief Magistrate Honourable Kalo will proceed to hear the preliminary objection and strike out the petitioner's counterclaim with crippling costs to the said Malombo as he has always intended, which action will cause the petitioner irreparable damage by way of unjust loss of his aforementioned very substantial counterclaim against the said Malombo arising from over a decade of despicable and egregious interference with payment of the same by him, the petitioner's dues by the county government of Mombasa which has led to immense suffering and distress by the petitioner and further loss, damage, distress and embarrassment arising from execution for costs by the said Malombo, which would amount to millions of shillings and would destroy the petitioner financially and professionally having already suffered immensely in the said manner at the hands of Malombo aforementioned heinous activities”.
8. And in his prayers to this Honourable Court, the petitioner seeks to stop the respondent from further hearing the case in the magistrates’ court. He also seeks an order of certiorari to quash the decisions made in the same proceedings by Honourable Mr. Kalo on 22 August 2024 and 14 October 2024 respectively.
9. It is apparent from the petitioner’s own petition that it is founded on the allegations or adverse remarks against Malombo. More fundamentally, it is clear from the same petition that the petitioner seeks to not only stop further progress of Malombo’s suit in the magistrates’ court but he also wants orders that have been previously obtained in the same suit, apparently, in favour of Malombo, quashed.
10. The sheer fact that Malombo has been adversely mentioned in this petition, entitles him to be heard, if not for anything else, to have the opportunity to respond, and possibly controvert, allegations that have been made against him before the court can consider whether any of the orders sought in the petition can be granted. Secondly, quashing orders that have been given in the magistrates’ court and which may have been granted Malombo’s favour without giving him an opportunity to be heard would be contrary to the basic but renowned fundamental principle that no man is to be condemned unheard (audi alteram partem).
11. Against this background, I am satisfied and there ought not be any dispute that, though not named in any capacity in the petition, Malombo has a stake in its appurtenant proceedings and its ultimate outcome. Under rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, he is not only entitled to make the sort of application he has made to be joined to the petition as an interested party but also the court can, on its own motion, without any application, admit him as an interested party in this petition. This rule reads as follows:
7. (1) A person, with leave of the Court, may make an oral or written application to be joined as an interested party.
(2)A court may on its own motion join any interested party to the proceedings before it.
12. In Francis Karioki Muruatetu & Another v Republic & 5 others [2016] KESC 12 (KLR), a decision which Mbau cited in support of his submissions on the qualifications of an interested party, the Supreme Court, while discussing section 23 of the Supreme Court Act, 2011 and rule 25 of the Supreme Court Rules, 2012, which, needless to say, are inapplicable here, distinguished between “an amicus” whose definition has been provided in the Supreme Court Rules and “an intervenor” or “interested party”. The court cited its own earlier decision in Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2014] eKLR (an application by the Law Society of Kenya), where it noted, thus:
“While the Rules have a definition of who an amicus is, there is no definition attributed to 'Intervener' or 'Interested Party'. However, from Rule 25 above, one is allowed to apply to be enjoined any time in the course of the proceedings.
"[14] Black's Law Dictionary, 9ᵗʰ Edition, defines "intervener" (at page 897) thus: "One who voluntarily enters a pending lawsuit because of a personal stake in it" and defines 'Interested Party' (at p.1232) thus:
A party who has a recognizable stake (and therefore standing) in a matter".
"[15] On the other hand, an amicus is defined in Black's Law Dictionary thus:
'A person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter'."
With that definition of “interested party," the Court proceeded to hold further (paragraphs 17-18]:
"(17) Suffice it to say that while an interested party has a 'stake/interest' directly in the case, an amicus's interest is its 'fidelity' to the law: that an informed decision is reached by the Court having taken into account all relevant laws, and entertained legal arguments and principles brought to light in the Courtroom.
"(18] Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause..."
This Supreme Court decision was cited by the High Court in Judicial Service Commission v Speaker of The National Assembly & 8 Others, [2014]eKLR. The High Court also cited the definition of 'interested party' in: The Constitution of Kenya {Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (hereafter the "Mutunga Rules"thus:
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."
From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party:
One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:
The personal interest or stake that the party has in the matter must be set out in the application.
The interest must be dearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. The prejudice to be suffered by the intended interested party in case of non joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court”. (Paragraph 33 to 37 of the judgment)
13. As earlier, noted under rule 7(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the court may on its own motion include any party as an interested party to a petition. And where it acts upon an application, the application may be either formal or oral.
14. The Supreme Court Rules, 2012 do not have a similar provision as rule 7(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and, therefore, unlike the Supreme Court which is limited by rule 25 of its rules on the qualifications of whom it can admit as an interested party and how such an application has to be made, the High Court has a wider discretion to admit howsoever, whomsoever as an interested party. This Honourable Court is not necessarily subject to the qualifications of an “interested party” as prescribed by the Supreme Court; those qualifications must be viewed in the context of particular provisions the Supreme Court Act and the rules made thereunder which, obviously, do not apply in this Honourable Court.
15. That said, even if Malombo’s application was to be weighed against the Supreme Court’s standards as to whether he qualifies to be an interested party in this petition, I am satisfied that he fits that description and, therefore, his application meets the requisite threshold.
16. In the ultimate, and for reasons have given, I allow Malombo’s application and hereby order that he be joined to this petition as an interested party. The costs of the application shall abide the outcome of the petition.
17. Meanwhile, considering that this ruling is circulated on the Case Tracking System portal and has not been read out to parties due to unavoidable circumstances of which parties have been duly notified, directions on the progress and disposal of the petition are given in this ruling. To that end, the interested party is directed to file and serve his response to the petition within seven days of the date of this ruling. The petitioner has leave to file a further affidavit, if there will be need for any, within seven days of the date of service of the interested party’s response.
18. As far the mode of disposal of the petition is concerned, it shall be disposed of by way of written submissions. In that regard, the petitioner’s submissions shall be filed within fourteen days of the date of service of the interested party’s response and the interested party’s and respondent’s submissions shall be filed and served within fourteen days of the date of service of the applicant’s submissions. Highlighting of submissions shall be on 16 July 2025. It is so ordered.
2. The application is supported by Malombo’s own affidavit in which he has sworn that he is the plaintiff in Mombasa Chief Magistrates Court Civil Case No. E613 of 2023; The petitioner in this petition is the defendant in the same suit.
3. According to Malombo, the instant petition is all about the magistrates’ court case in which, as noted, he and the petitioner are the only parties. Accordingly, any orders issued in this petition will have a bearing in the suit in the court below.
4. Furthermore, Malombo swears that he has severally been mentioned by the petitioner, in the petition and in the application seeking conservatory orders. Even then he only became aware of the instant petition when the magistrates’ court could not deliver a ruling in the suit before it on the scheduled date of 13 February 2025 because, apparently, the proceedings in the magistrates’ court had been stayed by an order from this Honourable Court. According to Malombo, the order staying proceedings in the magistrates’ court is prejudicial to his case. For these reasons, Malombo wants to be joined to this petition.
5. Mbau, the petitioner in instant petition and the respondent in Malombo’s application, has opposed the application and filed a replying affidavit to that effect. Nonetheless, he as not disputed the fact of the pending suit between him and Malombo in the magistrates’ court. As a matter of fact, he has gone further to swear that:
“…the said dispute arises from the applicant's unprecedented, outrageous and despicable efforts to steal my fees amounting to Kshs. 102 million due from the county government of Mombasa for a period now exceeding 12 years by blocking payment of the same in the hope that the fee account in which the fees are comprised can be miraculously converted to him by the said Government thereby causing me severe hardship and distress persistently for the said prolonged period.”
6. According to Mbau, the orders sought in the petition are against the Honourable Mr. Kalo, the learmed magistate presiding over the case in the magistrates’ court and whom the petitioner wants to be barred from hearing the case because of what Mbau alleges to be “impunity, malice and irregularity” on the learned magistrate’s part. For this reason, according to Mbau, it is not necessary to admit Malombo in this petition, in any capacity.
7. I have had the opportunity to read the petitioner’s petition and I note, at the very outset, that it is true as deposed by Malombo that he has been mentioned in the petition and, on occasions, adversely. Besides the depositions part of which I have quoted above, the following paragraphs in the petition illustrate this point:
“3. In or about the year 2011, the petitioner an advocate of the High Court of Kenya, led one Robinson Onyango Malombo, also an advocate, in Civil Appeal no. 283 of 2007 (Kenya Ports Authority -vs Municipal Council of Mombasa & Anor) pursuant to instructions given by the defunct Municipal Council of Mombasa.
4. Under the terms of engagement for the said work, the fees for the same were to be shared equally between the 2 advocates.
5. In furtherance of the process of payment of the petitioner's share of the said fees, the council lumped the same with a balance of fees previously incurred by it in favour of the petitioner in an existing account and continued paying the aggregate sum in instalments. By the time of the council's dissolution on the onset of devolution, the balance due on the account was Kshs. 102 million, which balance was inherited by the County Government of Mombasa.
6. Over time, the said Malombo took it upon himself, in typical fashion, to try and steal the said balance of fees by, in his weird and absurd expectation, having the said account converted to him by the County Government of Mombasa.
7. After the County Government of Mombasa replaced the Council on the onset of devolution, the petitioner endavoured to be paid the said sum of money by the former only for his efforts to be frustrated by the said Malombo, who interfered with the payment of the same by the county government by effectively blocking the payment.
10.On 8th and 9th August, 2023 respectively the said Malombo irregularly moved the respondent to make orders for the hearing and disposal of a preliminary objection dated 8th August, 2023 seeking to strike out the petitioner's counterclaim on grounds of lack of pecuniary jurisdiction on the part of the respondent.
25. If this amended petition is not allowed, the petitioner will suffer irreparable harm because the Chief Magistrate Honourable Kalo will proceed to hear the preliminary objection and strike out the petitioner's counterclaim with crippling costs to the said Malombo as he has always intended, which action will cause the petitioner irreparable damage by way of unjust loss of his aforementioned very substantial counterclaim against the said Malombo arising from over a decade of despicable and egregious interference with payment of the same by him, the petitioner's dues by the county government of Mombasa which has led to immense suffering and distress by the petitioner and further loss, damage, distress and embarrassment arising from execution for costs by the said Malombo, which would amount to millions of shillings and would destroy the petitioner financially and professionally having already suffered immensely in the said manner at the hands of Malombo aforementioned heinous activities”.
8. And in his prayers to this Honourable Court, the petitioner seeks to stop the respondent from further hearing the case in the magistrates’ court. He also seeks an order of certiorari to quash the decisions made in the same proceedings by Honourable Mr. Kalo on 22 August 2024 and 14 October 2024 respectively.
9. It is apparent from the petitioner’s own petition that it is founded on the allegations or adverse remarks against Malombo. More fundamentally, it is clear from the same petition that the petitioner seeks to not only stop further progress of Malombo’s suit in the magistrates’ court but he also wants orders that have been previously obtained in the same suit, apparently, in favour of Malombo, quashed.
10. The sheer fact that Malombo has been adversely mentioned in this petition, entitles him to be heard, if not for anything else, to have the opportunity to respond, and possibly controvert, allegations that have been made against him before the court can consider whether any of the orders sought in the petition can be granted. Secondly, quashing orders that have been given in the magistrates’ court and which may have been granted Malombo’s favour without giving him an opportunity to be heard would be contrary to the basic but renowned fundamental principle that no man is to be condemned unheard (audi alteram partem).
11. Against this background, I am satisfied and there ought not be any dispute that, though not named in any capacity in the petition, Malombo has a stake in its appurtenant proceedings and its ultimate outcome. Under rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, he is not only entitled to make the sort of application he has made to be joined to the petition as an interested party but also the court can, on its own motion, without any application, admit him as an interested party in this petition. This rule reads as follows:
7. (1) A person, with leave of the Court, may make an oral or written application to be joined as an interested party.
(2)A court may on its own motion join any interested party to the proceedings before it.
12. In Francis Karioki Muruatetu & Another v Republic & 5 others [2016] KESC 12 (KLR), a decision which Mbau cited in support of his submissions on the qualifications of an interested party, the Supreme Court, while discussing section 23 of the Supreme Court Act, 2011 and rule 25 of the Supreme Court Rules, 2012, which, needless to say, are inapplicable here, distinguished between “an amicus” whose definition has been provided in the Supreme Court Rules and “an intervenor” or “interested party”. The court cited its own earlier decision in Trusted Society of Human Rights Alliance v. Mumo Matemu & 5 Others, Supreme Court Petition No. 12 of 2013, [2014] eKLR (an application by the Law Society of Kenya), where it noted, thus:
“While the Rules have a definition of who an amicus is, there is no definition attributed to 'Intervener' or 'Interested Party'. However, from Rule 25 above, one is allowed to apply to be enjoined any time in the course of the proceedings.
"[14] Black's Law Dictionary, 9ᵗʰ Edition, defines "intervener" (at page 897) thus: "One who voluntarily enters a pending lawsuit because of a personal stake in it" and defines 'Interested Party' (at p.1232) thus:
A party who has a recognizable stake (and therefore standing) in a matter".
"[15] On the other hand, an amicus is defined in Black's Law Dictionary thus:
'A person who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter'."
With that definition of “interested party," the Court proceeded to hold further (paragraphs 17-18]:
"(17) Suffice it to say that while an interested party has a 'stake/interest' directly in the case, an amicus's interest is its 'fidelity' to the law: that an informed decision is reached by the Court having taken into account all relevant laws, and entertained legal arguments and principles brought to light in the Courtroom.
"(18] Consequently, an interested party is one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause..."
This Supreme Court decision was cited by the High Court in Judicial Service Commission v Speaker of The National Assembly & 8 Others, [2014]eKLR. The High Court also cited the definition of 'interested party' in: The Constitution of Kenya {Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (hereafter the "Mutunga Rules"thus:
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."
From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party:
One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:
The personal interest or stake that the party has in the matter must be set out in the application.
The interest must be dearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. The prejudice to be suffered by the intended interested party in case of non joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court”. (Paragraph 33 to 37 of the judgment)
13. As earlier, noted under rule 7(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the court may on its own motion include any party as an interested party to a petition. And where it acts upon an application, the application may be either formal or oral.
14. The Supreme Court Rules, 2012 do not have a similar provision as rule 7(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and, therefore, unlike the Supreme Court which is limited by rule 25 of its rules on the qualifications of whom it can admit as an interested party and how such an application has to be made, the High Court has a wider discretion to admit howsoever, whomsoever as an interested party. This Honourable Court is not necessarily subject to the qualifications of an “interested party” as prescribed by the Supreme Court; those qualifications must be viewed in the context of particular provisions the Supreme Court Act and the rules made thereunder which, obviously, do not apply in this Honourable Court.
15. That said, even if Malombo’s application was to be weighed against the Supreme Court’s standards as to whether he qualifies to be an interested party in this petition, I am satisfied that he fits that description and, therefore, his application meets the requisite threshold.
16. In the ultimate, and for reasons have given, I allow Malombo’s application and hereby order that he be joined to this petition as an interested party. The costs of the application shall abide the outcome of the petition.
17. Meanwhile, considering that this ruling is circulated on the Case Tracking System portal and has not been read out to parties due to unavoidable circumstances of which parties have been duly notified, directions on the progress and disposal of the petition are given in this ruling. To that end, the interested party is directed to file and serve his response to the petition within seven days of the date of this ruling. The petitioner has leave to file a further affidavit, if there will be need for any, within seven days of the date of service of the interested party’s response.
18. As far the mode of disposal of the petition is concerned, it shall be disposed of by way of written submissions. In that regard, the petitioner’s submissions shall be filed within fourteen days of the date of service of the interested party’s response and the interested party’s and respondent’s submissions shall be filed and served within fourteen days of the date of service of the applicant’s submissions. Highlighting of submissions shall be on 16 July 2025. It is so ordered.