1. Vide Notice of Motion dated 21st November 2024, the proposed 3rd Interested Party/Applicant seeks the following orders:-
(1) That this honourable Court be pleased to grant leave to the Applicant herein to be joined as an Interested Party in this matter;
(2) That upon the grant of prayer No.1 above, this honourable Court be pleased to grant leave to the Applicant to file his response within 21 days or any period the Court may deem it fit; and
(3) That the cost of this application does follow the cause.
2. The Applicant, Justus Otieno Odhiambo, avers that he is a bona fide pharmaceutical technologist and that he is registered as such pursuant to the provisions of the Pharmacy & Poisons Act. He contends that issuance of the practising certificate has always been the preserve of the Respondents but that it was now mandatory to get clearance from the 1st Interested Party upon payments of fees. He believes payment of fees to the 1st Interested Party should be voluntary. The effect of the said requirement was to make membership in the 1st Interested Party compulsory. He argued that the effect of the requirement was to deny him a right to earn a living and, in essence, enslaved him to the 1st Interested Party, an association he was not necessarily interested in.
3. The 1st Interested Party opposes the application vide a Replying Affidavit sworn by Mr Eric Gichane on 27th November 2024. Mr. Eric Gichane is the Secretary General of the Kenya Pharmaceutical Association. The deponent stated that the application was mischievous, incompetent, fatally defective, and ought to be struck out. He argued that the application has no bearing on the reliefs sought by the Exparte Applicant. In the circumstances, he stated that the application filed by the 1st Interested Party ought to be heard first before hearing the application dated 21st November 2024.
4. Mr. Gichane deposed that the proposed 3rd Interested Party spoke for the Respondents and represented their interests. He further stated that Mr Kinyua had not met the threshold for joinder in so far as:-
a. He hadn’t expressed his stake in the proceedings;
b. Had not shown how he would be affected by the decision of the Court when it is made; and
c. He hadn’t demonstrated how his interest could not be well articulated by the other parties unless he appeared in the proceedings.
5. Mr. Gichane, therefore, urged the Court to dismiss the application.
6. Although all the parties were served, only the 1st Interested Party opposed the application, which is the subject of this decision.
7. The application was canvased by way of written submissions. The submissions or the proposed 3rd Interested Party are dated 4th December 2024. In his submissions, he urged that he had been a voluntary member of the 1st Interested Party since 2012. He submitted that there was no requirement under the Pharmacy & Poisons Act for the Applicant to be issued with a clearance by the 1st Interested Party. He lamented that the new requirements by the Respondents made it mandatory to be issued a clearance certificate by the 1st Interested Party.
8. The Applicant relied on the decision of the Court in Previn Bowry vs John Ward & Another [2015]eKLR, Civicon Ltd vs Kivuwatt Limited & 2 others [2015]eKLR, Elizabeth Nyambura Njuguna & another vs EK Banks Ltd & 2 others [2019]eKLR.
9. The proposed 3rd Interested Party/Applicant submitted that hurdles had been placed against his application for renewal of license, his labour rights under Article 41 of the Constitution infringed and that the 1st Interested Party had not shown what prejudice he would suffer if the application was allowed.
10. The submissions of the 1st Interested Party/Applicant are dated 11th December 2024.
11. The party submitted that the test in Communication Commission of Kenya & 4 others vs Royal Media Services Ltd & 7 others [2014]eKLR had not been met.
12. It also urged that the law on joinder was set by the Supreme Court of Kenya in Francis Karioko Muruatetu vs Republic & 5 others [2016]eKLR.
13. It was urged that the proposed Interested Party wouldn’t add value to the proceedings and that he was merely speaking out for the Respondents.
14. Reliance was also placed in the case of Lucy Wangari Ngigi & 128 others vs National Bank of Kenya Limited & another [2015]eKLR where it was held that:-
“ The court may even in its own motion add a party to the suit if such party is necessary for the determination of the real matter in dispute or whose presence is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. Therefore, joinder of parties is permitted by law and it can be done at any stage of the proceedings. But, joinder of parties may be refused where such joinder: will lead into practical problems of handling the existing cause of action together with the one of the party being joined; is unnecessary; or will just occasion unnecessary delay or costs on the parties in the suit. In other word, joinder of parties will be declined where the cause of action being proposed or the relief sought is incompatible to or totally different from existing cause of action or the relief. The determining factor in the joinder of parties is that a common question of fact or law would arise between the existing and the intended parties.”
15. It was further urged that the application was based on prayer No. 4 of the Motion dated 5th August 2024, which prayer “was illegally and surreptitiously inserted in the said application for ulterior motives by the exparte applicant and other like-minded person/entities.”
16. For the foregoing reasons, it was urged that the joinder application be denied.
17. I have perused the application and the response thereto. It is not denied that the proposed 3rd Interested Party is a pharmaceutical technologist.
18. Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 states as follows: -
(2)The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.
19. Joinder of parties has been the subject of very many decisions of the courts of record in Kenya. In Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR Mativo J, held as follows:-
“The test is not whether the joinder of the person proposed to be added as an interested party would be according to or against the wishes of the petitioner or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the petitioner. It is whether the intended interested party has an identifiable stake or a legal interest or duty in the proceedings. In determining whether or not an applicant has a legal interest in the subject matter of an action sufficient to entitle him to be joined as an interested party, the true test lies not so much in an analysis of what the constituents of the applicant's rights, but rather in what would be the result on the subject-matter of the action if those rights could be established. It is a mandate of the court that, as far as possible, all matters in controversy between the parties should be completely and finally determined, and all multiplicities of legal proceedings concerning any of the matters be avoided. In this regard, it would be appropriate and in the interest of justice that all matters touching and concerning the subject matter of the suit in the case at hand be determined finally and completely to avoid litigating over the same matters again.”
20. The Supreme Court of Kenya set out the test applicable when courts are considering an application for joinder. The apex court held in Francis Karioko Muruatetu vs Republic & 5 others [2016]eKLR that:-
“[37] 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:
i. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough to stand apart from anything that is merely peripheral.
ii. ii. 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
iii. 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.”
21. The proposed party's application details the contentions underpinning his application. His interest, in my view, is identifiable and proximate enough. It is not peripheral or speculative.
22. The Applicant has submitted that if this Court makes the orders to his disadvantage, he may be made to pay fees to a society that he considers voluntary. Such an action, he feels, would possibly deny him a chance to earn a living.
23. The likely injury to be suffered by the proposed 3rd Interested Party is not idle. It is clear and present. In the circumstances, I agree that it would be in the interest of justice to allow the application dated 21st November 2024.
24. In the interest of justice, I order that the 3rd Interested Party files his responses to the applications before the Court within 7 days of the date hereof.
25. The matter will be mentioned before Ngaah, J on 23rd January 2025 for further directions.
26. I order that the costs of this application be costs in the cause.
27. Orders accordingly.
Dated and signed at Mombasa this 15th day of January 2025. Delivered virtually via Microsoft TEAMS.
(1) That this honourable Court be pleased to grant leave to the Applicant herein to be joined as an Interested Party in this matter;
(2) That upon the grant of prayer No.1 above, this honourable Court be pleased to grant leave to the Applicant to file his response within 21 days or any period the Court may deem it fit; and
(3) That the cost of this application does follow the cause.
2. The Applicant, Justus Otieno Odhiambo, avers that he is a bona fide pharmaceutical technologist and that he is registered as such pursuant to the provisions of the Pharmacy & Poisons Act. He contends that issuance of the practising certificate has always been the preserve of the Respondents but that it was now mandatory to get clearance from the 1st Interested Party upon payments of fees. He believes payment of fees to the 1st Interested Party should be voluntary. The effect of the said requirement was to make membership in the 1st Interested Party compulsory. He argued that the effect of the requirement was to deny him a right to earn a living and, in essence, enslaved him to the 1st Interested Party, an association he was not necessarily interested in.
3. The 1st Interested Party opposes the application vide a Replying Affidavit sworn by Mr Eric Gichane on 27th November 2024. Mr. Eric Gichane is the Secretary General of the Kenya Pharmaceutical Association. The deponent stated that the application was mischievous, incompetent, fatally defective, and ought to be struck out. He argued that the application has no bearing on the reliefs sought by the Exparte Applicant. In the circumstances, he stated that the application filed by the 1st Interested Party ought to be heard first before hearing the application dated 21st November 2024.
4. Mr. Gichane deposed that the proposed 3rd Interested Party spoke for the Respondents and represented their interests. He further stated that Mr Kinyua had not met the threshold for joinder in so far as:-
a. He hadn’t expressed his stake in the proceedings;
b. Had not shown how he would be affected by the decision of the Court when it is made; and
c. He hadn’t demonstrated how his interest could not be well articulated by the other parties unless he appeared in the proceedings.
5. Mr. Gichane, therefore, urged the Court to dismiss the application.
6. Although all the parties were served, only the 1st Interested Party opposed the application, which is the subject of this decision.
7. The application was canvased by way of written submissions. The submissions or the proposed 3rd Interested Party are dated 4th December 2024. In his submissions, he urged that he had been a voluntary member of the 1st Interested Party since 2012. He submitted that there was no requirement under the Pharmacy & Poisons Act for the Applicant to be issued with a clearance by the 1st Interested Party. He lamented that the new requirements by the Respondents made it mandatory to be issued a clearance certificate by the 1st Interested Party.
8. The Applicant relied on the decision of the Court in Previn Bowry vs John Ward & Another [2015]eKLR, Civicon Ltd vs Kivuwatt Limited & 2 others [2015]eKLR, Elizabeth Nyambura Njuguna & another vs EK Banks Ltd & 2 others [2019]eKLR.
9. The proposed 3rd Interested Party/Applicant submitted that hurdles had been placed against his application for renewal of license, his labour rights under Article 41 of the Constitution infringed and that the 1st Interested Party had not shown what prejudice he would suffer if the application was allowed.
10. The submissions of the 1st Interested Party/Applicant are dated 11th December 2024.
11. The party submitted that the test in Communication Commission of Kenya & 4 others vs Royal Media Services Ltd & 7 others [2014]eKLR had not been met.
12. It also urged that the law on joinder was set by the Supreme Court of Kenya in Francis Karioko Muruatetu vs Republic & 5 others [2016]eKLR.
13. It was urged that the proposed Interested Party wouldn’t add value to the proceedings and that he was merely speaking out for the Respondents.
14. Reliance was also placed in the case of Lucy Wangari Ngigi & 128 others vs National Bank of Kenya Limited & another [2015]eKLR where it was held that:-
“ The court may even in its own motion add a party to the suit if such party is necessary for the determination of the real matter in dispute or whose presence is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. Therefore, joinder of parties is permitted by law and it can be done at any stage of the proceedings. But, joinder of parties may be refused where such joinder: will lead into practical problems of handling the existing cause of action together with the one of the party being joined; is unnecessary; or will just occasion unnecessary delay or costs on the parties in the suit. In other word, joinder of parties will be declined where the cause of action being proposed or the relief sought is incompatible to or totally different from existing cause of action or the relief. The determining factor in the joinder of parties is that a common question of fact or law would arise between the existing and the intended parties.”
15. It was further urged that the application was based on prayer No. 4 of the Motion dated 5th August 2024, which prayer “was illegally and surreptitiously inserted in the said application for ulterior motives by the exparte applicant and other like-minded person/entities.”
16. For the foregoing reasons, it was urged that the joinder application be denied.
17. I have perused the application and the response thereto. It is not denied that the proposed 3rd Interested Party is a pharmaceutical technologist.
18. Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 states as follows: -
(2)The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.
19. Joinder of parties has been the subject of very many decisions of the courts of record in Kenya. In Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR Mativo J, held as follows:-
“The test is not whether the joinder of the person proposed to be added as an interested party would be according to or against the wishes of the petitioner or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the petitioner. It is whether the intended interested party has an identifiable stake or a legal interest or duty in the proceedings. In determining whether or not an applicant has a legal interest in the subject matter of an action sufficient to entitle him to be joined as an interested party, the true test lies not so much in an analysis of what the constituents of the applicant's rights, but rather in what would be the result on the subject-matter of the action if those rights could be established. It is a mandate of the court that, as far as possible, all matters in controversy between the parties should be completely and finally determined, and all multiplicities of legal proceedings concerning any of the matters be avoided. In this regard, it would be appropriate and in the interest of justice that all matters touching and concerning the subject matter of the suit in the case at hand be determined finally and completely to avoid litigating over the same matters again.”
20. The Supreme Court of Kenya set out the test applicable when courts are considering an application for joinder. The apex court held in Francis Karioko Muruatetu vs Republic & 5 others [2016]eKLR that:-
“[37] 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:
i. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough to stand apart from anything that is merely peripheral.
ii. ii. 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
iii. 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.”
21. The proposed party's application details the contentions underpinning his application. His interest, in my view, is identifiable and proximate enough. It is not peripheral or speculative.
22. The Applicant has submitted that if this Court makes the orders to his disadvantage, he may be made to pay fees to a society that he considers voluntary. Such an action, he feels, would possibly deny him a chance to earn a living.
23. The likely injury to be suffered by the proposed 3rd Interested Party is not idle. It is clear and present. In the circumstances, I agree that it would be in the interest of justice to allow the application dated 21st November 2024.
24. In the interest of justice, I order that the 3rd Interested Party files his responses to the applications before the Court within 7 days of the date hereof.
25. The matter will be mentioned before Ngaah, J on 23rd January 2025 for further directions.
26. I order that the costs of this application be costs in the cause.
27. Orders accordingly.
Dated and signed at Mombasa this 15th day of January 2025. Delivered virtually via Microsoft TEAMS.