REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E293 OF 2020
IN THE MATTER OF: ARTICLES 22 (1) & (2) (c), 23, 48, 50(1), 165(3), AND 258 (1) & (2) (c) OF THE CONSTITUTION OF KENYA, 2010.
AND
IN THE MATTER OF: THE ALLEGED CONTRAVENTION AND VIOLATION OF ARTICLES 1(1), 2(1) & (2), 3(1), 10(1) & (2), 27, 35(3), 47 (1), 157 (6) (c), (7), (8) & (11), 159, 201(a), (d), & (e), 206 (1), 221 (6), AND 259(1) OF THE CONSTITUTION OF KENYA, 2010.
AND
IN THE MATTER OF: THE ALLEGED VIOLATION OF SECTIONS 33 (4) AND 55 OF THE BANKING ACT: SECTIONS 5, 16, 24(B) AND 44 OF THE PROCEEDS OF CRIME AND ANTI-MONEY LAUNDERING ACT: SECTION 89 OF THE CRIMINAL PROCEDURE CODE: AND SECTION 17(2) OF THE PUBLIC FINANCE MANAGEMENT ACT.
AND
IN THE MATTER OF: THE CONSTITUTIONAL VALIDITY OF SECTIONS 18 AND 45 OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT.
AND
IN THE MATTER OF: THE ALLEGED ABUSE OF POWER AND THE CONSTITUTIONAL AND LEGAL VALIDITY OF THE DECISION BY MR. NOORDIN MOHAMED HAJI, THE DIRECTOR OF PUBLIC PROSECUTIONS, TO FINE COMMERCIAL BANKS FOR MONEY LAUNDERING.
AND
IN THE MATTER OF: THE CONSTITUTIONAL AND LEGAL VALIDITY OF PLEA BARGAINS AND/OR DEFERRED PROSECUTION AGREEMENTS REACHED WITHOUT THE SUPERVISION OF A COURT.
AND
IN THE MATTER OF: THE DOCTRINES OF CHECKS AND BALANCES AND LEGITIMATE EXPECTATIONS.
-BETWEEN-
OKIYA OMTATAH OKOITI ……………………………… PETITIONER
CFE BERNARD MUCHIRI MUCHERE ………………………………………………. PROPOSED 2 ND PETITIONER
- VERSUS -
THE DIRECTOR OF PUBLIC PROSECUTIONS ...… 1 ST RESPONDENT
MR. NOORDIN MOHAMED HAJI ............................... 2 ND RESPONDENT
THE NATIONAL ASSEMBLY ………………………. 3 RD RESPONDENT
-AND-
THE CENTRAL BANK OF KENYA ………… 1 ST INTERESTED PARTY
THE FINANCIAL REPORTING CENTRE … 2 ND INTERESTED PARTY
THE HON. ATTORNEY GENERAL ….........… 3 RD INTERESTED PARTY
KENYA COMMERCIAL BANK (KENYA) LIMITED ……………………………………………………. 4 TH INTERESTED PARTY
EQUITY BANK (KENYA) LIMITED ……….. 5 TH INTERESTED PARTY
STANDARD CHARTERED BANK (KENYA) LIMITED ………………………………………………….… 6 TH INTERESTED PARTY
CO-OPERATIVE BANK OF KENYA LIMITED ……………………………………………………. 7 TH INTERESTED PARTY
DIAMOND TRUST BANK (KENYA) LIMITED ………………………………………………….… 8 TH INTERESTED PARTY
RULING ON JOINDER AND AMENDMENT
1. Before the Court for determination is a Notice of Motion dated 24 th November 2025 filed under Certificate of Urgency and premised under Articles 20, 22, 50, 23(3), 159(2)(d), 165, and 258 of the Constitution of Kenya, 2010, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and all other enabling provisions of the Law. The Application seeks the following Orders:
(1 SPENT
(2 THAT pending the inter-partes hearing of this application and/or petition this Honourable Court be pleased to admit the amended petition dated 21” November 2025 as having been amended, filed, and served with the leave of the Court.
(3 THAT CFE Bernard Muchiri Muchere be admitted as the 2 nd Petitioner.
(4 THAT consequent to the grant of the prayers above the Honourable Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders, and/or favour the cause of justice.
(5 THAT costs be in the cause.
2. The Application is supported by the annexed affidavit of the Petitioner Okiya Omtatah Okoiti sworn on even date and is founded on the grounds on the face of it.
3. The Petitioner avers that the primary purpose of the Application is to amend the Petition to introduce critical, new legal and constitutional issues of significant public interest, which only came to light through the 3 rd Respondent’s Replying Affidavit sworn by Samuel Njoroge on 18 th November 2024 and are being used to oppose the Petition.
4. It is deposed that the Application seeks to add Bernard Muchiri Muchere as a second petitioner because his involvement is premised on the fact that he is a well-informed, public-spirited Kenyan citizen who will enrich the proceedings and aid the Court in deciding the case on its merits.
5. It is the Petitioner’s assertion that granting these orders falls squarely within the Court’s unfettered jurisdiction and serves the interests of justice, equity, the rule of law and constitutional integrity. Further, that the proposed amendments and joinder are not determinative of the final Petition, meaning the Respondents will suffer no prejudice if they are allowed.
6. It is averred that ultimately, the balance of convenience favours granting the orders, which will provide the Court with a full opportunity to rule on these weighty matters of public interest.
7. In response, only the 4 th , 5 th and 6 th Interested Parties filed their Grounds of Opposition all dated 9 th February 2026 opposing the Application. The other parties did not file any responses.
8. The Grounds of Opposition for the 4 th , 5 th and 6 th Interested Parties are identical. They oppose the Application on several grounds being that the Petitioner/Applicant delayed filing the Application despite knowing about the contents of the 3 rd Respondent’s Replying Affidavit since 18 th November 2024.
9. The 4 th , 5 th and 6 th Interested Parties contend that the Application is an afterthought since the last amendment to the Petition was done on 23 rd February 2021; that accordingly, the application has been brought at an advanced stage of the proceedings. They argue against the addition of CFE Bernard Muchiri Muchere as a second petitioner because the claim of him being knowledgeable and public-spirited is vague, unsubstantiated, fails to meet the criteria under the Mutunga Rules and that no evidence is adduced by the Petitioner demonstrating his sufficient interest or prior expression of interest in this case.
10. It is further contended that since the case is already scheduled for the highlighting of written submissions on 15 th April 2026, the timing is viewed as a tactic to delay and disrupt the orderly progress and administration of justice.
11. The Application was canvassed by way of written submissions.
Submissions
12. The Petitioner/Applicant’s Submissions are dated 24 th November 2025 . The Petitioner isolates four issues for determination and these are:
i. Whether the application is urgent;
ii. Whether CFE Bernard Muchiri Muchere should be enjoined to these proceedings;
iii. Whether the amended petition should be admitted? and
iv. Whether the costs are payable?
13. On the first issue, the Petitioner argues that the application is urgent and emphasizes the court’s discretion in allowing amendments and joinder. It is submitted that the matter is urgent due to the scheduled hearing date of 15 th April 2026 and that the Court has broad discretion under Rule 5 of the Mutunga Rules to join necessary parties.
14. On the second issue, the Petitioner submits that the proposed 2 nd Petitioner Bernard Muchiri Muchere, is knowledgeable in public finance and will assist the Court. He submits that the Court’s discretion is guided by principles of justice, necessity and avoiding prejudice. That further, joinder of CFE Bernard Muchiri Muchere will benefit the Court because of his expertise and is in the public’s interest. He cites Rule 5(d)(ii) of the Mutunga Rules stating that it allows joinder if the person’s presence is necessary for adjudication. The Petitioner argues that the inclusion of Bernard Muchere will not prejudice the case and reiterates that it is in the public interest. That his joinder is necessary to help the Court determine the case fairly on merits and that the Court should exercise its discretion to enjoin him as a petitioner.
15. On the third issue, the Petitioner requests the Court to admit the amended Petition filed on 21 st November 2025 stating that it has been filed, served and is before the Court with leave. It is stated that the Mutunga Rules under Rule 18 permit amendments to pleadings to correct or address new information. That in this case, the amendments are necessary to address issues raised by the Respondents’ affidavits. The cases of Mombasa Cement Limited v Speaker of the National Assembly & 2 others (2016) eKLR and the US Court of Appeal decision in Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995) are cited in support.
16. The Petitioner submits that courts generally favour liberal amendments to ensure justice and substantive merits. That the proposed amendments will not cause prejudice or injustice to the Respondents but aim to clarify the case and address new evidence, ensuring that the Court considers the true issues. He cites the cases of Baker V. Medway Ltd and Cropper V. Smith in support of this proposition.
17. The Petitioner sets out the principles governing amendments of pleadings in the case of AAT Holdings Limited v Diamond Shields International Ltd [2014] eKLR stating that amendments should be allowed if they determine the real question in controversy. He further cites Central Kenya Ltd v. Trust Bank Ltd & 4 Others (Civil Appeal No. 222 of 1998) and submits that amendments should be granted unless they cause injustice or prejudice. That the factors to be considered from the above case include no undue delay, bona fide intention and no introduction of new causes of action.
18. It is submitted that the amendments should facilitate just and fair resolution of the Petition as was held in the cases of St. Patrick’s Hill School Limited v Bank of Africa Kenya Limited [2018] eKLR, Bramwell, LJ in Tildesley v Harper (1878), 10 Ch.D. at p.296 and Budding v. Murdoch (1875) 1 Ch.D at p.42 . H
19. The petitioner submits that amendments may be allowed at any stage, provided they do not prejudice the other side and that in the present case, the amendments are justified as they address substantive issues and new evidence. He adds that the Court has wide discretion to add parties at any stage, guided by principles of natural justice and that amendments should be made timely and in good faith.
20. The Petitioner submits that amendments should not introduce new causes of action that are substantially different and that courts favour amendments that clarify or support the original case. He cites the Court of Appeal decision in Ochieng and Others v First National Bank of Chicago Civil Appeal Number 147 of 1991 and Republic vs. District Land Registrar, Uasin-Gishu & Anor (2014) eKLR for exercise of judicial authority and discretion in this regard, emphasizing flexibility and fairness.
21. The petitioner urges that the amendments are consistent with principles of justice, avoiding prejudice and promoting substantive resolution. He adds that the right to a fair trial under Article 50 of the Constitution supports liberal procedural allowances stating that the court can recall witnesses or permit further examination to address the proposed amendments, citing the case of Andrew Ouko v Kenya Commercial Bank Limited & 3 others [2014] eKLR .
22. The petitioner emphasizes that the Court’s discretion should be guided by principles of natural justice, relying on several authorities being: Phillip Chemwolo & Another v Augustine Kubende [1986] eKLR, Central Bank Limited vs Trust Bank Limited (2000) 2EA 365, Joseph Ochieng & 2 others t/a Aquiline Agencies vs First National Bank of Chicago (1995) eKLR, Corner Holiday Inn Limited & Another vs Andrew Kuria Wangunyu [2008] eKLR and Ann Muthoni Karanu vs La Nyavu Gardens Limited NBI ELC 181 of 2014 [2015]eKLR .
23. The petitioner urges the Court to allow the amendments to the Petition and include CFE Bernard Muchiri Muchere as a 2 nd Petitioner, emphasizing that justice and public interest favour granting the Application.
The 3 rd Respondent’s Submissions
24. The 3 rd Respondent’s (The National Assembly) submissions are dated 8 th June 2026 in which Counsel isolates two issues for determination namely:
i. Whether the Applicant/Petitioner can amend his pleadings; and
ii. Whether the amendments are necessary for the determination of the real issues in dispute .
25. On the first issue, it is submitted that courts have discretion to allow amendments but prioritize justice, efficiency and finality. It is stated that under Rule 19 of the Mutunga Rules , while courts allow amendments, it is not an unbridled right but is subject to the court’s discretion. That the Court of Appeal in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR , emphasized that late amendments disrupt the cause list and prejudice the efficient administration of justice. That, accordingly, late amendments are discouraged, especially close to the hearing, to avoid disrupting proceedings.
26. It is submitted that the Petitioner stated that the new issues arose from the 3 rd Respondent’s Affidavit filed in November 2024 and he had provided no explanation for the one-year delay. That such a delay of over a year without explanation is viewed as a laches that undermines the Application.
27. On the second issue, Counsel submits that the core issues in the Petition are clear which is the constitutional validity of the DPP’s actions and certain statutes. That the new issues alleged to have arisen could have been addressed earlier even through a further affidavit as was held in Violet Wambui vs. Attorney General & Another [2016] eKLR . That the issues are not fundamental to the core constitutional questions raised in the Petition.
28. It is submitted that the proposed joinder of the proposed 2 nd Petitioner is misconceived and prejudicial and that if indeed he is well-informed on the issues at hand, then his participation should be through witness statements, not party status. They submit that allowing amendments at this stage would cause unnecessary delay, prejudice other parties and undermine expeditious conclusion of the case.
29. Counsel for the 3 rd Respondent urges the Court to dismiss the Application in its entirety, emphasizing that the existing Petition sufficiently raises the constitutional issues and that granting the amendments would disrupt the scheduled hearing and cause procedural prejudice.
The 3 rd Interested Party’s Submissions
30. The 3 rd Interested Party , the Attorney General filed written submissions dated 4 th June 2026 opposing the Application and raising two issues for determination as follows:
i. Whether the Director of Public Prosecutions acted within the constitutional and statutory mandate under Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act; and
ii. Whether Sections 18 and 45 of the Office of the Director of Public Prosecutions Act enjoy presumption of constitutionality. I note that these submissions address the main Petition and not the Application at hand.
31. On the first issue, Counsel submits that the DPP acted entirely within its independent constitutional mandate under Article 157 of the Constitution and the ODPP Act , which gives the office sole authority over criminal proceedings without requiring external consent. Counsel cited Section 23 of the ODPP Act to emphasize the DPP’s discretionary authority on prosecution of criminal cases and states that the said discretion ought to be exercised within the four corners of the Constitution as stated in the case of Thuita Mwangi & 2 Others vs. Ethics and Anti-Corruption Commission & 3 Others [2013] KEHC 1689 (KLR).
32. It is further submitted that the National Prosecution Policy and the Diversion Policy lawfully provide for alternatives to full trials such as diversion and plea bargaining. Citing the case of Okiya Omtatah Okoiti vs. Director of Public Prosecutions 3 Others (Petition No. E266 of 2020); [2022] eKLR, the Attorney General argues that these policies are internal operating manuals for prosecutors rather than statutory instruments; therefore, they are not bound by the legislative requirements of the Statutory Instruments Act.
33. On the second issue, it is submitted that the Petitioner failed to discharge the burden of proof required to overturn the legal presumption of constitutionality enjoyed by statutory legislation. The case of Law Society of Kenya vs Attorney General & another, SC Petition No 4 of 2019; [2019] eKLR is cited in this regard. It is submitted that Section 18 on Recovery of Funds lawfully enables the DPP to take steps to recover amounts or enforce property forfeitures resulting from criminal proceedings. Section 45 on the Prosecutions Fund is also cited and the 3 rd Respondent counters the Petitioner’s claim that these funds must go to the Consolidated Fund, noting that Article 206 (1) (a) of the Constitution explicitly allows Parliament to establish separate public funds for specific purposes. Furthermore, it is submitted that the Petitioner provided no evidence of financial mismanagement or compromised independence regarding the fund’s receipt of grants and donations.
The 4 th , 5 th and 6 th Interested Parties’ Submissions
34. The 4 th , 5 th and 6 th Interested Parties filed joint submissions dated 8 th June 2026. Their legal Counsel urged the Court to dismiss the Application with costs to their clients on the basis that it is bare, vague and has unsubstantiated assertions that do not justify a joinder. Their arguments are reproduced verbatim as hereunder:
(a) There has been inordinate and unexplained delay in the filing of the present application. The basis of the Application by the Applicant are issues that allegedly arose from the 3 rd Respondent's Replying Affidavit, which was sworn on 18 th November 2024. Despite being aware of the contents of the said affidavit since that date, the Applicant took no steps whatsoever to seek leave to amend the Petition.
(b) This Application is an afterthought as the last amendment to the Petition was done on the 23 rd February, 2021, which never covered intention to add a co-petitioner.
(c) The 3 rd Respondent's Replying Affidavit does not expressly mention the proposed Petitioner or any person that ought to be a petitioner or/and raise any issue other than, possible lack of standing of the Applicant, therefore negating the need to delay the matter any further.
(d) The application is frivolous and vexatious, having been brought at a late stage of the proceedings. The matter having already been scheduled for highlighting of written submissions on 15th April 2026, the timing of the application is calculated to disrupt the orderly progress of the case and serves no legitimate purpose.
(e) The Petitioner/Applicant seeks the addition of a second petitioner, CFE Benard Muchiri Muchere, on the sole basis that he is knowledgeable and public spirited. This bare, vague and unsubstantiated assertion is wholly insufficient to justify joinder, as per Rule 5 (d) (ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (herein referred to as the Mutunga Rules at such an advanced stage of the proceedings.
(f) The Petitioner/Applicant has failed to demonstrate that the proposed additional Petitioner has any sufficient interest in the subject matter of the petition or that the joinder is necessary or desirable for the just and effective determination of issue before the court. As there is no evidence of an affidavit lodging a claim in first instance nor is there a letter to express interest in the Petition.
(g) The Application is made in bad faith and amounts to a dilatory tactic being employed by the Applicant to impede the expeditious administration of justice.
Analysis and Determination
35. From the forgoing, the main and only issue for my determination is whether the Application is merited and ought to be allowed . The Court will determine whether the CFE BERNARD MUCHIRI MUCHERE should be enjoined as 2 nd Petitioner in this Petition and whether the amended Petition can be admitted as duly filed in Court.
36. The Petitioner argues that the basis for seeking joinder of Mr. Muchere is that he is a well-informed, public-spirited citizen whose inclusion will enrich the proceedings and allow the Court to determine the case on its merits.
37. The 3 rd Respondent (The National Assembly) in their submissions urges the Court to dismiss the Petitioner’s Application to amend the pleadings and join a second petitioner. They argue that under Rule 19 of the Mutunga Rules , (should be Rule 18) amendments are discretionary, and the Petitioner’s unexplained one-year delay in acting on the November 2024 affidavit constitutes laches that prejudices the administration of justice.
38. Further, Counsel submits that the proposed amendments are unnecessary because the existing Petition already captures the core constitutional issues and any new points could have been introduced earlier through a further affidavit.
39. Finally, the 3 rd Respondent contends that joining a second Petitioner is misconceived arguing that his expertise should be captured via witness statements rather than party status and warns that granting the application at this late stage will cause procedural prejudice and disrupt the scheduled hearing.
40. The 4 th , 5 th , and 6 th Interested Parties in their Grounds of Opposition and Submissions oppose the Petitioner’s Application to add CFE Bernard Muchiri Muchere as a second petitioner because it is an unsubstantiated afterthought and a bad-faith, dilatory tactic designed to disrupt the administration of justice. They point out that the Petitioner waited over a year after receiving the November 2024 Replying Affidavit to file this motion, intentionally bringing it right before the scheduled 15 th April 2026, hearing. Furthermore, the banks contend through their Counsel that the Application lacks legal justification under Rule 5(d)(ii) of the Mutunga Rules , as the Petitioner has failed to present an affidavit or formal letter proving that the proposed co-petitioner possesses any sufficient interest in the case or that his joinder is necessary for its determination.
41. I have considered the principles governing joinder of parties and amendment of pleadings in suits. Rule 5 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules -“The Mutunga Rules” – provides as follows: -
5. Addition, joinder, substitution and striking out of parties
The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—
(a) Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.
(b) A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.
(c) Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.
(d) 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 just—
(i) order that the name of any party improperly joined, be struck out; and
(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.
(e) Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.
42. The Civil Procedure Rules also supplement the joinder of parties to pleadings as follows:
1. Who may be joined as plaintiffs [Order 1, rule 1]
All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise.
10. Substitution and addition of parties [Order 1, rule 10]
(1) Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.
(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.
(3) .....
43. Order 1 Rule 10 of the Civil Procedure Rules address the addition of a necessary party at any stage of the proceedings. This means that the suit must be alive and must not have been concluded by the delivery of a judgement. In Florence Nafula Ayodi & 5 others v John Tabalya Mukite & another and Benson Girenge Kidiavai & 67 others (applicants/intended interested parties) [2021] eKLR , the Court stated while considering an application for joinder thus: -
“12. The above notwithstanding, it is common sense to expect that for one to be enjoined in certain proceedings, those proceedings have to be pending before the court . In Leonard Kimeu Mwanthi v Rukaria M’twerandu M’iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties) [2021] eKLR, Justice L. Mbugua stated that:
“A party claiming to be enjoined in proceedings must have an interest in the pending litigation…”
In other words, the proceedings should still be alive in the court: they could be at the nascent or other stages but must be alive. In Central Kenya Ltd. V. Trust Bank & 4 Others, CA NO. 222 OF 1998 the Court, in discussing the issue of joinder of parties, held that “We would however agree with the respondent that Order 1 Rule (10)(2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court.”
44. I have also considered the determination of the Supreme Court in Francis Karioko Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR) (28 January 2016) (Ruling) where the apex Court considered whether it could allow the joinder of an Interested Party to the suit and held thus:
“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:
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. 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.
45. Similarly, the Supreme Court in Attorney General v Ndii & 73 others (Petition 12 (E016) of 2020) [2021] KESC 17 (KLR) (9 November 2021) (Ruling) held thus: -
“2. The guiding principles applicable in determining an application to be joined as an interested party in were:
a. One had to move the court by way of a formal application. Joinder of a party was not as of right, but was at the discretion of the court; hence, sufficient grounds had to be laid before the court, on the basis of the following elements:
i. The personal interest or stake that the party had in the matter had to be set out in the application. The interest had to be clearly identifiable and had to be proximate enough, to stand apart from anything that was merely peripheral.
ii. The prejudice to be suffered by the intended interested party in case of non-joinder, had to also be demonstrated to the satisfaction of the court. It had to also be clearly outlined and not something remote.
iii. A party’s application had to set out the case and/or submissions it intended to make before the cour
[...truncated]
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. E293 OF 2020
IN THE MATTER OF: ARTICLES 22 (1) & (2) (c), 23, 48, 50(1), 165(3), AND 258 (1) & (2) (c) OF THE CONSTITUTION OF KENYA, 2010.
AND
IN THE MATTER OF: THE ALLEGED CONTRAVENTION AND VIOLATION OF ARTICLES 1(1), 2(1) & (2), 3(1), 10(1) & (2), 27, 35(3), 47 (1), 157 (6) (c), (7), (8) & (11), 159, 201(a), (d), & (e), 206 (1), 221 (6), AND 259(1) OF THE CONSTITUTION OF KENYA, 2010.
AND
IN THE MATTER OF: THE ALLEGED VIOLATION OF SECTIONS 33 (4) AND 55 OF THE BANKING ACT: SECTIONS 5, 16, 24(B) AND 44 OF THE PROCEEDS OF CRIME AND ANTI-MONEY LAUNDERING ACT: SECTION 89 OF THE CRIMINAL PROCEDURE CODE: AND SECTION 17(2) OF THE PUBLIC FINANCE MANAGEMENT ACT.
AND
IN THE MATTER OF: THE CONSTITUTIONAL VALIDITY OF SECTIONS 18 AND 45 OF THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT.
AND
IN THE MATTER OF: THE ALLEGED ABUSE OF POWER AND THE CONSTITUTIONAL AND LEGAL VALIDITY OF THE DECISION BY MR. NOORDIN MOHAMED HAJI, THE DIRECTOR OF PUBLIC PROSECUTIONS, TO FINE COMMERCIAL BANKS FOR MONEY LAUNDERING.
AND
IN THE MATTER OF: THE CONSTITUTIONAL AND LEGAL VALIDITY OF PLEA BARGAINS AND/OR DEFERRED PROSECUTION AGREEMENTS REACHED WITHOUT THE SUPERVISION OF A COURT.
AND
IN THE MATTER OF: THE DOCTRINES OF CHECKS AND BALANCES AND LEGITIMATE EXPECTATIONS.
-BETWEEN-
OKIYA OMTATAH OKOITI ……………………………… PETITIONER
CFE BERNARD MUCHIRI MUCHERE ………………………………………………. PROPOSED 2 ND PETITIONER
- VERSUS -
THE DIRECTOR OF PUBLIC PROSECUTIONS ...… 1 ST RESPONDENT
MR. NOORDIN MOHAMED HAJI ............................... 2 ND RESPONDENT
THE NATIONAL ASSEMBLY ………………………. 3 RD RESPONDENT
-AND-
THE CENTRAL BANK OF KENYA ………… 1 ST INTERESTED PARTY
THE FINANCIAL REPORTING CENTRE … 2 ND INTERESTED PARTY
THE HON. ATTORNEY GENERAL ….........… 3 RD INTERESTED PARTY
KENYA COMMERCIAL BANK (KENYA) LIMITED ……………………………………………………. 4 TH INTERESTED PARTY
EQUITY BANK (KENYA) LIMITED ……….. 5 TH INTERESTED PARTY
STANDARD CHARTERED BANK (KENYA) LIMITED ………………………………………………….… 6 TH INTERESTED PARTY
CO-OPERATIVE BANK OF KENYA LIMITED ……………………………………………………. 7 TH INTERESTED PARTY
DIAMOND TRUST BANK (KENYA) LIMITED ………………………………………………….… 8 TH INTERESTED PARTY
RULING ON JOINDER AND AMENDMENT
1. Before the Court for determination is a Notice of Motion dated 24 th November 2025 filed under Certificate of Urgency and premised under Articles 20, 22, 50, 23(3), 159(2)(d), 165, and 258 of the Constitution of Kenya, 2010, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, and all other enabling provisions of the Law. The Application seeks the following Orders:
(1 SPENT
(2 THAT pending the inter-partes hearing of this application and/or petition this Honourable Court be pleased to admit the amended petition dated 21” November 2025 as having been amended, filed, and served with the leave of the Court.
(3 THAT CFE Bernard Muchiri Muchere be admitted as the 2 nd Petitioner.
(4 THAT consequent to the grant of the prayers above the Honourable Court be pleased to issue such further directions and orders as may be necessary to give effect to the foregoing orders, and/or favour the cause of justice.
(5 THAT costs be in the cause.
2. The Application is supported by the annexed affidavit of the Petitioner Okiya Omtatah Okoiti sworn on even date and is founded on the grounds on the face of it.
3. The Petitioner avers that the primary purpose of the Application is to amend the Petition to introduce critical, new legal and constitutional issues of significant public interest, which only came to light through the 3 rd Respondent’s Replying Affidavit sworn by Samuel Njoroge on 18 th November 2024 and are being used to oppose the Petition.
4. It is deposed that the Application seeks to add Bernard Muchiri Muchere as a second petitioner because his involvement is premised on the fact that he is a well-informed, public-spirited Kenyan citizen who will enrich the proceedings and aid the Court in deciding the case on its merits.
5. It is the Petitioner’s assertion that granting these orders falls squarely within the Court’s unfettered jurisdiction and serves the interests of justice, equity, the rule of law and constitutional integrity. Further, that the proposed amendments and joinder are not determinative of the final Petition, meaning the Respondents will suffer no prejudice if they are allowed.
6. It is averred that ultimately, the balance of convenience favours granting the orders, which will provide the Court with a full opportunity to rule on these weighty matters of public interest.
7. In response, only the 4 th , 5 th and 6 th Interested Parties filed their Grounds of Opposition all dated 9 th February 2026 opposing the Application. The other parties did not file any responses.
8. The Grounds of Opposition for the 4 th , 5 th and 6 th Interested Parties are identical. They oppose the Application on several grounds being that the Petitioner/Applicant delayed filing the Application despite knowing about the contents of the 3 rd Respondent’s Replying Affidavit since 18 th November 2024.
9. The 4 th , 5 th and 6 th Interested Parties contend that the Application is an afterthought since the last amendment to the Petition was done on 23 rd February 2021; that accordingly, the application has been brought at an advanced stage of the proceedings. They argue against the addition of CFE Bernard Muchiri Muchere as a second petitioner because the claim of him being knowledgeable and public-spirited is vague, unsubstantiated, fails to meet the criteria under the Mutunga Rules and that no evidence is adduced by the Petitioner demonstrating his sufficient interest or prior expression of interest in this case.
10. It is further contended that since the case is already scheduled for the highlighting of written submissions on 15 th April 2026, the timing is viewed as a tactic to delay and disrupt the orderly progress and administration of justice.
11. The Application was canvassed by way of written submissions.
Submissions
12. The Petitioner/Applicant’s Submissions are dated 24 th November 2025 . The Petitioner isolates four issues for determination and these are:
i. Whether the application is urgent;
ii. Whether CFE Bernard Muchiri Muchere should be enjoined to these proceedings;
iii. Whether the amended petition should be admitted? and
iv. Whether the costs are payable?
13. On the first issue, the Petitioner argues that the application is urgent and emphasizes the court’s discretion in allowing amendments and joinder. It is submitted that the matter is urgent due to the scheduled hearing date of 15 th April 2026 and that the Court has broad discretion under Rule 5 of the Mutunga Rules to join necessary parties.
14. On the second issue, the Petitioner submits that the proposed 2 nd Petitioner Bernard Muchiri Muchere, is knowledgeable in public finance and will assist the Court. He submits that the Court’s discretion is guided by principles of justice, necessity and avoiding prejudice. That further, joinder of CFE Bernard Muchiri Muchere will benefit the Court because of his expertise and is in the public’s interest. He cites Rule 5(d)(ii) of the Mutunga Rules stating that it allows joinder if the person’s presence is necessary for adjudication. The Petitioner argues that the inclusion of Bernard Muchere will not prejudice the case and reiterates that it is in the public interest. That his joinder is necessary to help the Court determine the case fairly on merits and that the Court should exercise its discretion to enjoin him as a petitioner.
15. On the third issue, the Petitioner requests the Court to admit the amended Petition filed on 21 st November 2025 stating that it has been filed, served and is before the Court with leave. It is stated that the Mutunga Rules under Rule 18 permit amendments to pleadings to correct or address new information. That in this case, the amendments are necessary to address issues raised by the Respondents’ affidavits. The cases of Mombasa Cement Limited v Speaker of the National Assembly & 2 others (2016) eKLR and the US Court of Appeal decision in Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995) are cited in support.
16. The Petitioner submits that courts generally favour liberal amendments to ensure justice and substantive merits. That the proposed amendments will not cause prejudice or injustice to the Respondents but aim to clarify the case and address new evidence, ensuring that the Court considers the true issues. He cites the cases of Baker V. Medway Ltd and Cropper V. Smith in support of this proposition.
17. The Petitioner sets out the principles governing amendments of pleadings in the case of AAT Holdings Limited v Diamond Shields International Ltd [2014] eKLR stating that amendments should be allowed if they determine the real question in controversy. He further cites Central Kenya Ltd v. Trust Bank Ltd & 4 Others (Civil Appeal No. 222 of 1998) and submits that amendments should be granted unless they cause injustice or prejudice. That the factors to be considered from the above case include no undue delay, bona fide intention and no introduction of new causes of action.
18. It is submitted that the amendments should facilitate just and fair resolution of the Petition as was held in the cases of St. Patrick’s Hill School Limited v Bank of Africa Kenya Limited [2018] eKLR, Bramwell, LJ in Tildesley v Harper (1878), 10 Ch.D. at p.296 and Budding v. Murdoch (1875) 1 Ch.D at p.42 . H
19. The petitioner submits that amendments may be allowed at any stage, provided they do not prejudice the other side and that in the present case, the amendments are justified as they address substantive issues and new evidence. He adds that the Court has wide discretion to add parties at any stage, guided by principles of natural justice and that amendments should be made timely and in good faith.
20. The Petitioner submits that amendments should not introduce new causes of action that are substantially different and that courts favour amendments that clarify or support the original case. He cites the Court of Appeal decision in Ochieng and Others v First National Bank of Chicago Civil Appeal Number 147 of 1991 and Republic vs. District Land Registrar, Uasin-Gishu & Anor (2014) eKLR for exercise of judicial authority and discretion in this regard, emphasizing flexibility and fairness.
21. The petitioner urges that the amendments are consistent with principles of justice, avoiding prejudice and promoting substantive resolution. He adds that the right to a fair trial under Article 50 of the Constitution supports liberal procedural allowances stating that the court can recall witnesses or permit further examination to address the proposed amendments, citing the case of Andrew Ouko v Kenya Commercial Bank Limited & 3 others [2014] eKLR .
22. The petitioner emphasizes that the Court’s discretion should be guided by principles of natural justice, relying on several authorities being: Phillip Chemwolo & Another v Augustine Kubende [1986] eKLR, Central Bank Limited vs Trust Bank Limited (2000) 2EA 365, Joseph Ochieng & 2 others t/a Aquiline Agencies vs First National Bank of Chicago (1995) eKLR, Corner Holiday Inn Limited & Another vs Andrew Kuria Wangunyu [2008] eKLR and Ann Muthoni Karanu vs La Nyavu Gardens Limited NBI ELC 181 of 2014 [2015]eKLR .
23. The petitioner urges the Court to allow the amendments to the Petition and include CFE Bernard Muchiri Muchere as a 2 nd Petitioner, emphasizing that justice and public interest favour granting the Application.
The 3 rd Respondent’s Submissions
24. The 3 rd Respondent’s (The National Assembly) submissions are dated 8 th June 2026 in which Counsel isolates two issues for determination namely:
i. Whether the Applicant/Petitioner can amend his pleadings; and
ii. Whether the amendments are necessary for the determination of the real issues in dispute .
25. On the first issue, it is submitted that courts have discretion to allow amendments but prioritize justice, efficiency and finality. It is stated that under Rule 19 of the Mutunga Rules , while courts allow amendments, it is not an unbridled right but is subject to the court’s discretion. That the Court of Appeal in Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR , emphasized that late amendments disrupt the cause list and prejudice the efficient administration of justice. That, accordingly, late amendments are discouraged, especially close to the hearing, to avoid disrupting proceedings.
26. It is submitted that the Petitioner stated that the new issues arose from the 3 rd Respondent’s Affidavit filed in November 2024 and he had provided no explanation for the one-year delay. That such a delay of over a year without explanation is viewed as a laches that undermines the Application.
27. On the second issue, Counsel submits that the core issues in the Petition are clear which is the constitutional validity of the DPP’s actions and certain statutes. That the new issues alleged to have arisen could have been addressed earlier even through a further affidavit as was held in Violet Wambui vs. Attorney General & Another [2016] eKLR . That the issues are not fundamental to the core constitutional questions raised in the Petition.
28. It is submitted that the proposed joinder of the proposed 2 nd Petitioner is misconceived and prejudicial and that if indeed he is well-informed on the issues at hand, then his participation should be through witness statements, not party status. They submit that allowing amendments at this stage would cause unnecessary delay, prejudice other parties and undermine expeditious conclusion of the case.
29. Counsel for the 3 rd Respondent urges the Court to dismiss the Application in its entirety, emphasizing that the existing Petition sufficiently raises the constitutional issues and that granting the amendments would disrupt the scheduled hearing and cause procedural prejudice.
The 3 rd Interested Party’s Submissions
30. The 3 rd Interested Party , the Attorney General filed written submissions dated 4 th June 2026 opposing the Application and raising two issues for determination as follows:
i. Whether the Director of Public Prosecutions acted within the constitutional and statutory mandate under Article 157 of the Constitution and the Office of the Director of Public Prosecutions Act; and
ii. Whether Sections 18 and 45 of the Office of the Director of Public Prosecutions Act enjoy presumption of constitutionality. I note that these submissions address the main Petition and not the Application at hand.
31. On the first issue, Counsel submits that the DPP acted entirely within its independent constitutional mandate under Article 157 of the Constitution and the ODPP Act , which gives the office sole authority over criminal proceedings without requiring external consent. Counsel cited Section 23 of the ODPP Act to emphasize the DPP’s discretionary authority on prosecution of criminal cases and states that the said discretion ought to be exercised within the four corners of the Constitution as stated in the case of Thuita Mwangi & 2 Others vs. Ethics and Anti-Corruption Commission & 3 Others [2013] KEHC 1689 (KLR).
32. It is further submitted that the National Prosecution Policy and the Diversion Policy lawfully provide for alternatives to full trials such as diversion and plea bargaining. Citing the case of Okiya Omtatah Okoiti vs. Director of Public Prosecutions 3 Others (Petition No. E266 of 2020); [2022] eKLR, the Attorney General argues that these policies are internal operating manuals for prosecutors rather than statutory instruments; therefore, they are not bound by the legislative requirements of the Statutory Instruments Act.
33. On the second issue, it is submitted that the Petitioner failed to discharge the burden of proof required to overturn the legal presumption of constitutionality enjoyed by statutory legislation. The case of Law Society of Kenya vs Attorney General & another, SC Petition No 4 of 2019; [2019] eKLR is cited in this regard. It is submitted that Section 18 on Recovery of Funds lawfully enables the DPP to take steps to recover amounts or enforce property forfeitures resulting from criminal proceedings. Section 45 on the Prosecutions Fund is also cited and the 3 rd Respondent counters the Petitioner’s claim that these funds must go to the Consolidated Fund, noting that Article 206 (1) (a) of the Constitution explicitly allows Parliament to establish separate public funds for specific purposes. Furthermore, it is submitted that the Petitioner provided no evidence of financial mismanagement or compromised independence regarding the fund’s receipt of grants and donations.
The 4 th , 5 th and 6 th Interested Parties’ Submissions
34. The 4 th , 5 th and 6 th Interested Parties filed joint submissions dated 8 th June 2026. Their legal Counsel urged the Court to dismiss the Application with costs to their clients on the basis that it is bare, vague and has unsubstantiated assertions that do not justify a joinder. Their arguments are reproduced verbatim as hereunder:
(a) There has been inordinate and unexplained delay in the filing of the present application. The basis of the Application by the Applicant are issues that allegedly arose from the 3 rd Respondent's Replying Affidavit, which was sworn on 18 th November 2024. Despite being aware of the contents of the said affidavit since that date, the Applicant took no steps whatsoever to seek leave to amend the Petition.
(b) This Application is an afterthought as the last amendment to the Petition was done on the 23 rd February, 2021, which never covered intention to add a co-petitioner.
(c) The 3 rd Respondent's Replying Affidavit does not expressly mention the proposed Petitioner or any person that ought to be a petitioner or/and raise any issue other than, possible lack of standing of the Applicant, therefore negating the need to delay the matter any further.
(d) The application is frivolous and vexatious, having been brought at a late stage of the proceedings. The matter having already been scheduled for highlighting of written submissions on 15th April 2026, the timing of the application is calculated to disrupt the orderly progress of the case and serves no legitimate purpose.
(e) The Petitioner/Applicant seeks the addition of a second petitioner, CFE Benard Muchiri Muchere, on the sole basis that he is knowledgeable and public spirited. This bare, vague and unsubstantiated assertion is wholly insufficient to justify joinder, as per Rule 5 (d) (ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (herein referred to as the Mutunga Rules at such an advanced stage of the proceedings.
(f) The Petitioner/Applicant has failed to demonstrate that the proposed additional Petitioner has any sufficient interest in the subject matter of the petition or that the joinder is necessary or desirable for the just and effective determination of issue before the court. As there is no evidence of an affidavit lodging a claim in first instance nor is there a letter to express interest in the Petition.
(g) The Application is made in bad faith and amounts to a dilatory tactic being employed by the Applicant to impede the expeditious administration of justice.
Analysis and Determination
35. From the forgoing, the main and only issue for my determination is whether the Application is merited and ought to be allowed . The Court will determine whether the CFE BERNARD MUCHIRI MUCHERE should be enjoined as 2 nd Petitioner in this Petition and whether the amended Petition can be admitted as duly filed in Court.
36. The Petitioner argues that the basis for seeking joinder of Mr. Muchere is that he is a well-informed, public-spirited citizen whose inclusion will enrich the proceedings and allow the Court to determine the case on its merits.
37. The 3 rd Respondent (The National Assembly) in their submissions urges the Court to dismiss the Petitioner’s Application to amend the pleadings and join a second petitioner. They argue that under Rule 19 of the Mutunga Rules , (should be Rule 18) amendments are discretionary, and the Petitioner’s unexplained one-year delay in acting on the November 2024 affidavit constitutes laches that prejudices the administration of justice.
38. Further, Counsel submits that the proposed amendments are unnecessary because the existing Petition already captures the core constitutional issues and any new points could have been introduced earlier through a further affidavit.
39. Finally, the 3 rd Respondent contends that joining a second Petitioner is misconceived arguing that his expertise should be captured via witness statements rather than party status and warns that granting the application at this late stage will cause procedural prejudice and disrupt the scheduled hearing.
40. The 4 th , 5 th , and 6 th Interested Parties in their Grounds of Opposition and Submissions oppose the Petitioner’s Application to add CFE Bernard Muchiri Muchere as a second petitioner because it is an unsubstantiated afterthought and a bad-faith, dilatory tactic designed to disrupt the administration of justice. They point out that the Petitioner waited over a year after receiving the November 2024 Replying Affidavit to file this motion, intentionally bringing it right before the scheduled 15 th April 2026, hearing. Furthermore, the banks contend through their Counsel that the Application lacks legal justification under Rule 5(d)(ii) of the Mutunga Rules , as the Petitioner has failed to present an affidavit or formal letter proving that the proposed co-petitioner possesses any sufficient interest in the case or that his joinder is necessary for its determination.
41. I have considered the principles governing joinder of parties and amendment of pleadings in suits. Rule 5 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules -“The Mutunga Rules” – provides as follows: -
5. Addition, joinder, substitution and striking out of parties
The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—
(a) Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what extent, may be determined as between all parties.
(b) A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.
(c) Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.
(d) 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 just—
(i) order that the name of any party improperly joined, be struck out; and
(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added.
(e) Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks, fit on the original respondents.
42. The Civil Procedure Rules also supplement the joinder of parties to pleadings as follows:
1. Who may be joined as plaintiffs [Order 1, rule 1]
All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise.
10. Substitution and addition of parties [Order 1, rule 10]
(1) Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.
(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.
(3) .....
43. Order 1 Rule 10 of the Civil Procedure Rules address the addition of a necessary party at any stage of the proceedings. This means that the suit must be alive and must not have been concluded by the delivery of a judgement. In Florence Nafula Ayodi & 5 others v John Tabalya Mukite & another and Benson Girenge Kidiavai & 67 others (applicants/intended interested parties) [2021] eKLR , the Court stated while considering an application for joinder thus: -
“12. The above notwithstanding, it is common sense to expect that for one to be enjoined in certain proceedings, those proceedings have to be pending before the court . In Leonard Kimeu Mwanthi v Rukaria M’twerandu M’iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties) [2021] eKLR, Justice L. Mbugua stated that:
“A party claiming to be enjoined in proceedings must have an interest in the pending litigation…”
In other words, the proceedings should still be alive in the court: they could be at the nascent or other stages but must be alive. In Central Kenya Ltd. V. Trust Bank & 4 Others, CA NO. 222 OF 1998 the Court, in discussing the issue of joinder of parties, held that “We would however agree with the respondent that Order 1 Rule (10)(2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court.”
44. I have also considered the determination of the Supreme Court in Francis Karioko Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR) (28 January 2016) (Ruling) where the apex Court considered whether it could allow the joinder of an Interested Party to the suit and held thus:
“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:
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. 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.
45. Similarly, the Supreme Court in Attorney General v Ndii & 73 others (Petition 12 (E016) of 2020) [2021] KESC 17 (KLR) (9 November 2021) (Ruling) held thus: -
“2. The guiding principles applicable in determining an application to be joined as an interested party in were:
a. One had to move the court by way of a formal application. Joinder of a party was not as of right, but was at the discretion of the court; hence, sufficient grounds had to be laid before the court, on the basis of the following elements:
i. The personal interest or stake that the party had in the matter had to be set out in the application. The interest had to be clearly identifiable and had to be proximate enough, to stand apart from anything that was merely peripheral.
ii. The prejudice to be suffered by the intended interested party in case of non-joinder, had to also be demonstrated to the satisfaction of the court. It had to also be clearly outlined and not something remote.
iii. A party’s application had to set out the case and/or submissions it intended to make before the cour
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