'
1. The application that is before this court for determination is the one dated 10th September 2025 wherein the intended Interested Party seeks the following orders.
1) Spent….
2) That this Honourable Court be pleased to join the Proposed Interested Party/Applicant as an Interested Party in this Petition.
3) That upon being enjoined, the Proposed Interested Party be granted leave to file such affidavits, pleadings and submissions as may be necessary to assist the Court in the just determination of this matter.
4) That the costs of this application be in the cause.
2. The cause of action that drives the substantive suit flows from the decision of the Public Procurement Administrative Review Board in Application No. 85 of 2025.
3. The Applicant argues that it has an interest in the instant suit and that it should be made a party to the suit. It argues that it is an independent, self-funded, multi-sectorial, nonpolitical and apex non-profit Federation committed to consumer protection, education, research, consultancy, litigation, anti-counterfeits campaign and business rating on consumerism and customer-care issues.
4. The Applicant argues that on a day-to-day basis it advocates for the constitutionally protected rights and interests of all consumers and works towards a fair, just and safe marketplace for all Kenyan and regional consumers in all sectors of the economy, both public and private.
5. It is the Applicant’s case that its application is anchored on its mandate to advocate for safeguard of the rights and interests of consumers as protected under article 46 of the Constitution of Kenya, 2010.
6. It argues that unless the Proposed Interested Party is urgently enjoined, it will be locked out of the matter by virtue of the timelines already issued, thereby denying the Court the opportunity to hear the voice of consumers who are the ultimate stakeholders in terms of paying for and use of the said smart meters.
7. It argues that under Article 46 of the Constitution, consumers have the right to goods and services of reasonable quality, the right to information necessary for informed choices, and the right to protection of their economic interests.
8. This Honorable Court has unfettered discretion to allow joinder of parties under Order 1 Rule 10(2) of the Civil Procedure Rules, as well as Articles 22 and 165 of the Constitution, where such joinder is necessary to enable the Court to completely and effectually adjudicate upon all questions before it.
9. The Proposed Interested Party is the recognized umbrella consumer body in Kenya, mandated to represent, protect and promote the rights of consumers, and is therefore best placed to articulate public interest and consumer protection issues implicated by the procurement in question.
10. The Applicant argues that it has in fact been actively involved with following up with the issues in the present proceedings on behalf of Kenya Consumers.
11. For instance, through the letter dated 8th August 2025, the Proposed Interested Party wrote to the Ethics and Anti-corruption Commission requesting for urgent investigations into KPLC Smart Meters Tender Irregularities and Fraud on consumers.
12. Unless the Proposed Interested Party is enjoined in these proceedings, the voice of the consumer will be excluded, and the Court will be deprived of critical input on how the procurement of smart meters affects millions of ordinary Kenyans, contrary to the constitutional values of transparency, accountability, fairness, and public participation under Articles 10 and 227.
13. The applicant argues that there exists a real and imminent risk that the Proposed Interested Party will suffer irreparable harm and prejudice, as it may be denied the opportunity to defend its interests and those of consumers in the ongoing matter.
14. Reliance is placed in The Supreme Court case of Francis Karioki Muruatetu & Another vs. Republic & 5 Others as consolidated with 16 of 2013; [2016] eKLR which set down the principles of joinder 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:
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 nonjoinder 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.”
15. The Proposed Interested Party argues that it has a proximate and identifiable interest in the cause of action.
16. In EG v Attorney General; David Kuria Mbote & 10 others (Interested Parties) [2021] eKLR, the Court of Appeal underscored that joinder is not automatic but rests within the discretion of the Court, to be exercised where certain conditions are satisfied, foremost among them being that the intended party must have a personal interest or stake in the matter in question, and that such interest is clearly identifiable, proximate, and not merely peripheral.
17. The procurement of smart meters has a direct and far-reaching impact on the ordinary consumer. Consumers are the ultimate financiers of such procurement, as the costs incurred are ultimately passed down through electricity tariffs and billing structures.
18. It submits that it is the consumers who will be the direct end users of these meters, whose quality, accuracy, and efficiency will determine the fairness of billing, reliability of electricity supply, and protection against unwarranted overcharging. It follows, therefore, that any irregularities or inefficiencies in the procurement process will have a disproportionate impact on consumers, who have little or no control over the process but who will inevitably shoulder its consequences.
19. They submit that courts have held that joinder of Interested Parties is permissible where the presence of the intended party will result in the complete settlement of all questions involved in the proceedings, where such joinder is necessary to protect the rights of a party who would otherwise be adversely affected in law, and where it serves to prevent a likely course of proliferated litigation.
20. Reliance is placed in the case of Meme v Republic [2004] 1 EA 124, the Court observed that joinder is permissible where it is demonstrated that the presence of the intended party will result in the complete settlement of all the questions involved in the proceedings, that such joinder is necessary to safeguard the rights of a party who would otherwise be adversely affected in law, and further, that it will serve to prevent a likely course of proliferated litigation.
21. It is its case that the Applicant at hand challenges procurement decisions that touch on fundamental questions of consumer protection, transparency, and accountability in the energy sector. These are not abstract legal issues but matters that directly affect millions of ordinary Kenyans, who will finance the procurement through tariffs and who will rely on the smart meters in their daily lives.
22. It submits that the absent the Federation’s joinder, both it and the millions of consumers it represents will suffer grave prejudice by being excluded from proceedings that go to the core of their constitutionally guaranteed rights under Article 46 of the Constitution.
23. The joinder of the intended Interested Party will not occasion any prejudice to the existing parties, nor will it unduly complicate or delay the proceedings.
24. On the contrary, COFEK’s joinder will aid the Court by enabling the court to make a more comprehensive and effectual adjudication of the matter.
25. Further, enjoining the Federation will forestall the risk of multiple suits or parallel litigation by consumers who may otherwise feel compelled to independently challenge the same procurement process.
26. In EG v Attorney General; David Kuria Mbote & 10 others (Interested Parties) [2021] eKLR the Court of Appeal held that joinder of an intended party is not automatic but is granted at the discretion of the Court, provided that the joinder will not vex the existing parties or convolute the proceedings with unnecessary new matters and grounds not contemplated by the parties or envisaged in the pleadings.
27. In the present case, the joinder of COFEK does not seek to introduce any new or extraneous issues into the proceedings.
The 2nd & 3rd Respondents’ Case:
28. They oppose the application and argue that Judicial review applications under PPADA are sui generis and do not attract the application of the Civil Procedure Rules on joinder of parties as this statutory framework does not envisage the joinder of third parties such as the proposed Interested Party and therefore the present application is a clear attempt to import civil procedure principles into a specialized statutory regime, contrary to settled jurisprudence, as such, the joinder of the proposed Interested Party would be irregular, prejudicial and an abuse of the Court process.
29. They are of the strong position that the proposed Interested Party has not pointed to any provision under PPADA or PPADR granting them the right to join or participate in judicial review proceedings arising from the Review Board’s decision.
30. They argue that the proposed Interested Party is a busybody, an alien and a stranger to these proceedings and therefore lacks the requisite locus standi to be joined to these proceedings.
31. They further argue that this being purely a procurement dispute, it was instituted at the Review Board pursuant to section 167 of the Public Procurement and Asset Disposal Act, 2015 (PPADA) which provides inter alia that only a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due the breach of a duty imposed on a procuring entity may seek administrative review within the prescribed timelines. The proposed Interested Party is neither a candidate nor a tenderer.
32. Section 170 of the PPADA provides for the parties to a review who are- the candidate or tenderer who requested the review, the accounting officer of a procuring entity, the tenderer notified as successful by the procuring entity and such other persons as the Review Board may determine. The proposed Interested Party does not fall into any of the said categories of persons entitled to administrative review with respect to the subject tender. “locus standi” is “the right to bring an action or to be heard in a given forum.” the proposed Interested Party has not demonstrated their locus standi in the instant case.
33. The jurisdiction of the Review Board and by extension this Honourable Court, in these proceedings is tightly circumscribed and cannot be expanded to accommodate a stranger to the tender process.
34. They raise a concern around the fact that the proposed Interested Party elected not to participate in the proceedings before the Review Board, despite being aware of the existence of the application for review filed by the 4th Respondent herein thus, the request for joinder is an afterthought, speculative and it is wholly calculated to delay, derail and protract these proceedings by introducing extraneous matters that were never part of the Review Board’s consideration.
35. Allowing such a belated joinder according to them would prejudice the existing parties by expanding the scope of litigation and delaying the expeditious disposal of the matter, contrary to Article 159(2)(b) of the Constitution of Kenya, 2010 and section 3 of the PPADA which emphasize timely resolution of disputes.
36. An Interested Party is one who has a stake in the proceedings and who will be affected by the decision of the Court when it is made, either way.
37. Additionally, 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. Also, such a party ought to outline their case and submissions they intend to make ensuring they do not merely duplicate arguments already presented by other parties. (Refer to Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 others, SC Petition (Application) No. 12 of 2013; [2014] eKLR and Francis Karioki Muruatetu & Another vs Republic and 5 others [2016] eKLR both of which distilled the test for joinder as an Interested Party)
38. The proposed Interested Party according to them has not demonstrated their direct and identifiable stake in the matter or how the ends of justice would better be served by joining it in these proceedings.
39. The proposed Interested Party has also not demonstrated any prejudice they would suffer if the matter was to proceed without their involvement nor demonstrated that their alleged interest will not be well articulated unless they appear in the proceedings and champions their cause.
40. They argue further that the proposed Interested Party has also not outlined their case and the submissions they intend to make and their relevance for the Court’s consideration.
41. Moreover, the parties to the Judicial Review have extensively submitted on all relevant issues and in the absence of the pleadings and submissions by the proposed Interested Party, it is impossible to discern their arguments and whether they duplicate already existing arguments and that failure to place before the Honourable Court any substantive material evidencing their alleged interest in the matter confirms that their application is speculative and an afterthought.
42. According to them, the proposed Interested Party has approached this Court in bad faith, with the intention of seeking relevance in proceedings to which they were never a party and further illustrates that the proposed Interested Party is attempting to ambush the parties and this Honourable Court by raising matters outside the statutory record of the Review Board.
43. The proposed Interested Party has also irregularly introduced new evidence at paragraph 13 of the Supporting Affidavit. In the instant case, the proposed Interested Party describes itself as the umbrella consumer body in Kenya and states that its main prerogative in the instant case is to protect consumer rights guaranteed by Article 46 of the Constitution of Kenya, 2010.
44. The proposed Interested Party further alleges that the procurement in dispute has direct and immediate implications on electricity consumers as the cost, quality and deployment of smart meters directly affect billing, service delivery and consumer protection.
45. The consumer interests as structured by the proposed Interested Party are peripheral and indirect and do not go to the core issues that the Court is called upon to determine in such judicial review proceedings.
46. It is their case that while consumer rights are undoubtedly protected under Article 46 of the Constitution of Kenya, 2010, they do not directly arise for adjudication in these judicial review proceedings which are ultimately confined to the legality of the Review Board’s decision.
47. To admit such arguments would improperly convert judicial review into a forum for policy debate which lies outside the Court’s remit.
48. The proposed Interested Party has without leave of the Honourable Court, maliciously and in bad faith joined East Africa Meter Company Limited as the 8th Respondent, which was not a party in the previous proceedings before the Review Board nor in the current judicial review proceedings challenging the board’s decision.
49. The proposed Interested Party’s attempt to introduce and additional Respondent is irregular, offends the doctrine of finality of pleadings and underscores the frivolous and vexatious nature of the application.
The 4th Respondents Case;
50. The 4th Respondent does not oppose the said Application since the Proposed Interested Party works towards a fair, just and safe marketplace for all Kenyan and regional consumers in all sectors of the economy and ensuring consumer protection in all spheres and for both private and public sectors.
51. The Proposed Interested Party has stated that it represents electricity consumers, who are the ultimate stakeholders affected by the procurement of smart meters, the subject of these Judicial Review proceedings.
52. The procurement in issue has direct and immediate implications on electricity consumers, as the cost, quality, and deployment of smart meters directly affect billing, service delivery, and consumer protection; matters safeguarded under Article 46 of the Constitution of Kenya, 2010.
53. The Proposed Interested Party has demonstrated a sufficient stake in the proceedings as contemplated in law, as the outcome directly affects electricity consumers whom it represents.
54. The Proposed Interested Party is known to represent a wide cross-section of the public in public interest cases, and in this particular case, the tender in issue concerns 420,000 energy meters valued at more than Kenya Shillings Six Billion (Kshs. 6,000,000,000) in public funds, which directly affects a large portion of electricity consumers in Kenya.
55. No prejudice will be occasioned to any of the parties by the joinder of the Proposed Interested Party. On the contrary, their participation is likely to enrich the Court with perspectives on consumer rights and interests that are central to the procurement in issue
The 1st Interested Parties Case:
56. It is its case that the proposed Interested Party has failed to disclose with clarity and specificity any direct, identifiable, or cognizable interest in these proceedings, thereby rendering the Application speculative and devoid of merit.
57. The proposed Interested Party has equally failed to demonstrate, with sufficient particularity, the nature and extent of any prejudice they stand to suffer should this Honourable Court decline to join them in the proceedings, and in the absence of such demonstration, the Application is fatally defective.
58. It is not accompanied by the intended submissions, nor does it set out the unique relevance or value of such submissions. It is impossible to determine whether the proposed Interested Party seeks to assist the Court or merely duplicate the arguments of the existing parties.
59. The proper forum to ventilate such interest was at the stage of the Request for Review before the Public Procurement Administrative Review Board (PPARB).
60. By seeking to join the proceedings at this late stage before the High Court, the proposed Interested Party is attempting to improperly expand the scope of the dispute beyond the core issues in question.
61. The matter before this honourable court is a procurement dispute which, by law, must be heard and determined within forty-five (45) days.
62. The substantive matter was filed on 26th August 2025, yet they chose to bring their Application belatedly on 1 0th September 2025. Such delay is unjustified and demonstrates that the Application is calculated merely to derail and undermine the expeditious disposal of the matter, thereby frustrating this Honourable Court''s ability to meet the strict statutory timelines.
Analysis and determination:
Whether the Applicants should be made parties to the suit.
63. In the case David K Kaitany & 18 others v Head Teacher/ Secretary the School Management Committee Ng’onlong Primary School & 10 others [2022] eKLR;
“5. The court has carefully considered the grounds on the application, affidavit evidence, grounds of opposition, submissions, superior courts decisions cited and come to the following conclusions;
The question of joinder of parties is governed by Order 1 Rule 10 (2) of the Civil Procedure Rules which states that;
“ 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.”[Emphasis added].
64. The court has in exercise its discretion looked at the application from the lens of the time lost since the suit was filed to the date that the instant application was filed on one hand and the right to access to justice as guaranteed under Article 48 of the constitution on the other side.
65. In creating a balance between the two, the court is of the informed view that the right to access Justice supersede and overwhelms the Interested Parties argument that there was a delay in filing the instant application on the part of the Applicant.
66. Public procurement matters have a very short runway timewise. They must be completed within 45 days. The Applicant moved the court within reasonable time in the light of the foregoing and I so hold.
67. Order 1 Rule 10 (2) of the Civil Procedure Rules allows the court to add a party to a suit at any stage of the proceedings. That is the position in this suit where the Applicant has moved the court through the instant application.
68. In order for the court to exercise its discretion in favour of the Applicant, it is upon the Applicant to satisfy the court that its application satisfies the principles governing joinder applications as enunciated in the Supreme Court case in Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLR namely:
1) The clear and identifiable personal interest or stake that the party has in the matter;
2) The prejudice that would be suffered in case of non-joinder; and
3) The relevance of the submissions to be made by the intended Interested Party in aiding the Court to arrive at a fair and just determination.
69. This court is satisfied that the Joinder of the Applicant into this suit will create room for the Applicant’s constituent members that the Applicant represents to express their sentiments and give their views in relation to the protection for their rights as the consumers of the tokens that are at the heart of the procurement.
70. In any event the procurement process of the tokens will be enriched if the public get an opportunity to take part in the decision-making process.
71. Their participation will no doubt go a long day in the promotion of public participation as guaranteed under Article 10 of The Constitution.
72. The court is satisfied that the Applicant has an identifiable stake and interest in the issues before the court given that it has been actively following the issues in the present on behalf of Consumers.
73. This is gleaned from the letter dated 8th August 2025, wherein the Proposed Interested Party wrote to the Ethics and Anti-corruption Commission requesting for urgent investigations into KPLC Smart Meters Tender Irregularities and Fraud on consumers.
74. The fact that the Applicant did not apply to be added as a party when the matter was proceeding before the board cannot form the basis to bar the Applicant from filing the application for joinder before this court and I so hold.
75. The Exparte Applicant and the Interested Parties have not demonstrated that they will suffer prejudice should the application be allowed.
76. This court has also taken a note that the proposed Interested Party has without leave of the Honourable Court and in bad faith joined East Africa Meter Company Limited as the 8th Respondent, which was not a party in the previous proceedings before the Review Board nor in the current judicial review proceedings challenging the board’s decision.
77. The 8th Respondent is not a party to these proceedings.
Disposition:
78. The Applicant’s presence in this suit is necessary in order to enable the court effectually and conclusively determine the issues before it.
Order:
1) The application dated 10th September 2025 is allowed in the following terms.
2) The Applicant shall herein after be referred to as the 5th Interested Party.
3) All the Parties shall serve the 5th Interested Party with the necessary pleadings by noon 30.9.25.
4) The 5th Interested Party shall file and serve its responses and submissions by 5PM of 30.9.25.
5) The other parties shall have the liberty to file and serve supplementary affidavits and submissions by 5pm 1.10.25.
6) Costs shall be in the cause.
'
1. The application that is before this court for determination is the one dated 10th September 2025 wherein the intended Interested Party seeks the following orders.
1) Spent….
2) That this Honourable Court be pleased to join the Proposed Interested Party/Applicant as an Interested Party in this Petition.
3) That upon being enjoined, the Proposed Interested Party be granted leave to file such affidavits, pleadings and submissions as may be necessary to assist the Court in the just determination of this matter.
4) That the costs of this application be in the cause.
2. The cause of action that drives the substantive suit flows from the decision of the Public Procurement Administrative Review Board in Application No. 85 of 2025.
3. The Applicant argues that it has an interest in the instant suit and that it should be made a party to the suit. It argues that it is an independent, self-funded, multi-sectorial, nonpolitical and apex non-profit Federation committed to consumer protection, education, research, consultancy, litigation, anti-counterfeits campaign and business rating on consumerism and customer-care issues.
4. The Applicant argues that on a day-to-day basis it advocates for the constitutionally protected rights and interests of all consumers and works towards a fair, just and safe marketplace for all Kenyan and regional consumers in all sectors of the economy, both public and private.
5. It is the Applicant’s case that its application is anchored on its mandate to advocate for safeguard of the rights and interests of consumers as protected under article 46 of the Constitution of Kenya, 2010.
6. It argues that unless the Proposed Interested Party is urgently enjoined, it will be locked out of the matter by virtue of the timelines already issued, thereby denying the Court the opportunity to hear the voice of consumers who are the ultimate stakeholders in terms of paying for and use of the said smart meters.
7. It argues that under Article 46 of the Constitution, consumers have the right to goods and services of reasonable quality, the right to information necessary for informed choices, and the right to protection of their economic interests.
8. This Honorable Court has unfettered discretion to allow joinder of parties under Order 1 Rule 10(2) of the Civil Procedure Rules, as well as Articles 22 and 165 of the Constitution, where such joinder is necessary to enable the Court to completely and effectually adjudicate upon all questions before it.
9. The Proposed Interested Party is the recognized umbrella consumer body in Kenya, mandated to represent, protect and promote the rights of consumers, and is therefore best placed to articulate public interest and consumer protection issues implicated by the procurement in question.
10. The Applicant argues that it has in fact been actively involved with following up with the issues in the present proceedings on behalf of Kenya Consumers.
11. For instance, through the letter dated 8th August 2025, the Proposed Interested Party wrote to the Ethics and Anti-corruption Commission requesting for urgent investigations into KPLC Smart Meters Tender Irregularities and Fraud on consumers.
12. Unless the Proposed Interested Party is enjoined in these proceedings, the voice of the consumer will be excluded, and the Court will be deprived of critical input on how the procurement of smart meters affects millions of ordinary Kenyans, contrary to the constitutional values of transparency, accountability, fairness, and public participation under Articles 10 and 227.
13. The applicant argues that there exists a real and imminent risk that the Proposed Interested Party will suffer irreparable harm and prejudice, as it may be denied the opportunity to defend its interests and those of consumers in the ongoing matter.
14. Reliance is placed in The Supreme Court case of Francis Karioki Muruatetu & Another vs. Republic & 5 Others as consolidated with 16 of 2013; [2016] eKLR which set down the principles of joinder 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:
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 nonjoinder 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.”
15. The Proposed Interested Party argues that it has a proximate and identifiable interest in the cause of action.
16. In EG v Attorney General; David Kuria Mbote & 10 others (Interested Parties) [2021] eKLR, the Court of Appeal underscored that joinder is not automatic but rests within the discretion of the Court, to be exercised where certain conditions are satisfied, foremost among them being that the intended party must have a personal interest or stake in the matter in question, and that such interest is clearly identifiable, proximate, and not merely peripheral.
17. The procurement of smart meters has a direct and far-reaching impact on the ordinary consumer. Consumers are the ultimate financiers of such procurement, as the costs incurred are ultimately passed down through electricity tariffs and billing structures.
18. It submits that it is the consumers who will be the direct end users of these meters, whose quality, accuracy, and efficiency will determine the fairness of billing, reliability of electricity supply, and protection against unwarranted overcharging. It follows, therefore, that any irregularities or inefficiencies in the procurement process will have a disproportionate impact on consumers, who have little or no control over the process but who will inevitably shoulder its consequences.
19. They submit that courts have held that joinder of Interested Parties is permissible where the presence of the intended party will result in the complete settlement of all questions involved in the proceedings, where such joinder is necessary to protect the rights of a party who would otherwise be adversely affected in law, and where it serves to prevent a likely course of proliferated litigation.
20. Reliance is placed in the case of Meme v Republic [2004] 1 EA 124, the Court observed that joinder is permissible where it is demonstrated that the presence of the intended party will result in the complete settlement of all the questions involved in the proceedings, that such joinder is necessary to safeguard the rights of a party who would otherwise be adversely affected in law, and further, that it will serve to prevent a likely course of proliferated litigation.
21. It is its case that the Applicant at hand challenges procurement decisions that touch on fundamental questions of consumer protection, transparency, and accountability in the energy sector. These are not abstract legal issues but matters that directly affect millions of ordinary Kenyans, who will finance the procurement through tariffs and who will rely on the smart meters in their daily lives.
22. It submits that the absent the Federation’s joinder, both it and the millions of consumers it represents will suffer grave prejudice by being excluded from proceedings that go to the core of their constitutionally guaranteed rights under Article 46 of the Constitution.
23. The joinder of the intended Interested Party will not occasion any prejudice to the existing parties, nor will it unduly complicate or delay the proceedings.
24. On the contrary, COFEK’s joinder will aid the Court by enabling the court to make a more comprehensive and effectual adjudication of the matter.
25. Further, enjoining the Federation will forestall the risk of multiple suits or parallel litigation by consumers who may otherwise feel compelled to independently challenge the same procurement process.
26. In EG v Attorney General; David Kuria Mbote & 10 others (Interested Parties) [2021] eKLR the Court of Appeal held that joinder of an intended party is not automatic but is granted at the discretion of the Court, provided that the joinder will not vex the existing parties or convolute the proceedings with unnecessary new matters and grounds not contemplated by the parties or envisaged in the pleadings.
27. In the present case, the joinder of COFEK does not seek to introduce any new or extraneous issues into the proceedings.
The 2nd & 3rd Respondents’ Case:
28. They oppose the application and argue that Judicial review applications under PPADA are sui generis and do not attract the application of the Civil Procedure Rules on joinder of parties as this statutory framework does not envisage the joinder of third parties such as the proposed Interested Party and therefore the present application is a clear attempt to import civil procedure principles into a specialized statutory regime, contrary to settled jurisprudence, as such, the joinder of the proposed Interested Party would be irregular, prejudicial and an abuse of the Court process.
29. They are of the strong position that the proposed Interested Party has not pointed to any provision under PPADA or PPADR granting them the right to join or participate in judicial review proceedings arising from the Review Board’s decision.
30. They argue that the proposed Interested Party is a busybody, an alien and a stranger to these proceedings and therefore lacks the requisite locus standi to be joined to these proceedings.
31. They further argue that this being purely a procurement dispute, it was instituted at the Review Board pursuant to section 167 of the Public Procurement and Asset Disposal Act, 2015 (PPADA) which provides inter alia that only a candidate or a tenderer, who claims to have suffered or to risk suffering, loss or damage due the breach of a duty imposed on a procuring entity may seek administrative review within the prescribed timelines. The proposed Interested Party is neither a candidate nor a tenderer.
32. Section 170 of the PPADA provides for the parties to a review who are- the candidate or tenderer who requested the review, the accounting officer of a procuring entity, the tenderer notified as successful by the procuring entity and such other persons as the Review Board may determine. The proposed Interested Party does not fall into any of the said categories of persons entitled to administrative review with respect to the subject tender. “locus standi” is “the right to bring an action or to be heard in a given forum.” the proposed Interested Party has not demonstrated their locus standi in the instant case.
33. The jurisdiction of the Review Board and by extension this Honourable Court, in these proceedings is tightly circumscribed and cannot be expanded to accommodate a stranger to the tender process.
34. They raise a concern around the fact that the proposed Interested Party elected not to participate in the proceedings before the Review Board, despite being aware of the existence of the application for review filed by the 4th Respondent herein thus, the request for joinder is an afterthought, speculative and it is wholly calculated to delay, derail and protract these proceedings by introducing extraneous matters that were never part of the Review Board’s consideration.
35. Allowing such a belated joinder according to them would prejudice the existing parties by expanding the scope of litigation and delaying the expeditious disposal of the matter, contrary to Article 159(2)(b) of the Constitution of Kenya, 2010 and section 3 of the PPADA which emphasize timely resolution of disputes.
36. An Interested Party is one who has a stake in the proceedings and who will be affected by the decision of the Court when it is made, either way.
37. Additionally, 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. Also, such a party ought to outline their case and submissions they intend to make ensuring they do not merely duplicate arguments already presented by other parties. (Refer to Trusted Society of Human Rights Alliance v. Mumo Matemo & 5 others, SC Petition (Application) No. 12 of 2013; [2014] eKLR and Francis Karioki Muruatetu & Another vs Republic and 5 others [2016] eKLR both of which distilled the test for joinder as an Interested Party)
38. The proposed Interested Party according to them has not demonstrated their direct and identifiable stake in the matter or how the ends of justice would better be served by joining it in these proceedings.
39. The proposed Interested Party has also not demonstrated any prejudice they would suffer if the matter was to proceed without their involvement nor demonstrated that their alleged interest will not be well articulated unless they appear in the proceedings and champions their cause.
40. They argue further that the proposed Interested Party has also not outlined their case and the submissions they intend to make and their relevance for the Court’s consideration.
41. Moreover, the parties to the Judicial Review have extensively submitted on all relevant issues and in the absence of the pleadings and submissions by the proposed Interested Party, it is impossible to discern their arguments and whether they duplicate already existing arguments and that failure to place before the Honourable Court any substantive material evidencing their alleged interest in the matter confirms that their application is speculative and an afterthought.
42. According to them, the proposed Interested Party has approached this Court in bad faith, with the intention of seeking relevance in proceedings to which they were never a party and further illustrates that the proposed Interested Party is attempting to ambush the parties and this Honourable Court by raising matters outside the statutory record of the Review Board.
43. The proposed Interested Party has also irregularly introduced new evidence at paragraph 13 of the Supporting Affidavit. In the instant case, the proposed Interested Party describes itself as the umbrella consumer body in Kenya and states that its main prerogative in the instant case is to protect consumer rights guaranteed by Article 46 of the Constitution of Kenya, 2010.
44. The proposed Interested Party further alleges that the procurement in dispute has direct and immediate implications on electricity consumers as the cost, quality and deployment of smart meters directly affect billing, service delivery and consumer protection.
45. The consumer interests as structured by the proposed Interested Party are peripheral and indirect and do not go to the core issues that the Court is called upon to determine in such judicial review proceedings.
46. It is their case that while consumer rights are undoubtedly protected under Article 46 of the Constitution of Kenya, 2010, they do not directly arise for adjudication in these judicial review proceedings which are ultimately confined to the legality of the Review Board’s decision.
47. To admit such arguments would improperly convert judicial review into a forum for policy debate which lies outside the Court’s remit.
48. The proposed Interested Party has without leave of the Honourable Court, maliciously and in bad faith joined East Africa Meter Company Limited as the 8th Respondent, which was not a party in the previous proceedings before the Review Board nor in the current judicial review proceedings challenging the board’s decision.
49. The proposed Interested Party’s attempt to introduce and additional Respondent is irregular, offends the doctrine of finality of pleadings and underscores the frivolous and vexatious nature of the application.
The 4th Respondents Case;
50. The 4th Respondent does not oppose the said Application since the Proposed Interested Party works towards a fair, just and safe marketplace for all Kenyan and regional consumers in all sectors of the economy and ensuring consumer protection in all spheres and for both private and public sectors.
51. The Proposed Interested Party has stated that it represents electricity consumers, who are the ultimate stakeholders affected by the procurement of smart meters, the subject of these Judicial Review proceedings.
52. The procurement in issue has direct and immediate implications on electricity consumers, as the cost, quality, and deployment of smart meters directly affect billing, service delivery, and consumer protection; matters safeguarded under Article 46 of the Constitution of Kenya, 2010.
53. The Proposed Interested Party has demonstrated a sufficient stake in the proceedings as contemplated in law, as the outcome directly affects electricity consumers whom it represents.
54. The Proposed Interested Party is known to represent a wide cross-section of the public in public interest cases, and in this particular case, the tender in issue concerns 420,000 energy meters valued at more than Kenya Shillings Six Billion (Kshs. 6,000,000,000) in public funds, which directly affects a large portion of electricity consumers in Kenya.
55. No prejudice will be occasioned to any of the parties by the joinder of the Proposed Interested Party. On the contrary, their participation is likely to enrich the Court with perspectives on consumer rights and interests that are central to the procurement in issue
The 1st Interested Parties Case:
56. It is its case that the proposed Interested Party has failed to disclose with clarity and specificity any direct, identifiable, or cognizable interest in these proceedings, thereby rendering the Application speculative and devoid of merit.
57. The proposed Interested Party has equally failed to demonstrate, with sufficient particularity, the nature and extent of any prejudice they stand to suffer should this Honourable Court decline to join them in the proceedings, and in the absence of such demonstration, the Application is fatally defective.
58. It is not accompanied by the intended submissions, nor does it set out the unique relevance or value of such submissions. It is impossible to determine whether the proposed Interested Party seeks to assist the Court or merely duplicate the arguments of the existing parties.
59. The proper forum to ventilate such interest was at the stage of the Request for Review before the Public Procurement Administrative Review Board (PPARB).
60. By seeking to join the proceedings at this late stage before the High Court, the proposed Interested Party is attempting to improperly expand the scope of the dispute beyond the core issues in question.
61. The matter before this honourable court is a procurement dispute which, by law, must be heard and determined within forty-five (45) days.
62. The substantive matter was filed on 26th August 2025, yet they chose to bring their Application belatedly on 1 0th September 2025. Such delay is unjustified and demonstrates that the Application is calculated merely to derail and undermine the expeditious disposal of the matter, thereby frustrating this Honourable Court''s ability to meet the strict statutory timelines.
Analysis and determination:
Whether the Applicants should be made parties to the suit.
63. In the case David K Kaitany & 18 others v Head Teacher/ Secretary the School Management Committee Ng’onlong Primary School & 10 others [2022] eKLR;
“5. The court has carefully considered the grounds on the application, affidavit evidence, grounds of opposition, submissions, superior courts decisions cited and come to the following conclusions;
The question of joinder of parties is governed by Order 1 Rule 10 (2) of the Civil Procedure Rules which states that;
“ 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.”[Emphasis added].
64. The court has in exercise its discretion looked at the application from the lens of the time lost since the suit was filed to the date that the instant application was filed on one hand and the right to access to justice as guaranteed under Article 48 of the constitution on the other side.
65. In creating a balance between the two, the court is of the informed view that the right to access Justice supersede and overwhelms the Interested Parties argument that there was a delay in filing the instant application on the part of the Applicant.
66. Public procurement matters have a very short runway timewise. They must be completed within 45 days. The Applicant moved the court within reasonable time in the light of the foregoing and I so hold.
67. Order 1 Rule 10 (2) of the Civil Procedure Rules allows the court to add a party to a suit at any stage of the proceedings. That is the position in this suit where the Applicant has moved the court through the instant application.
68. In order for the court to exercise its discretion in favour of the Applicant, it is upon the Applicant to satisfy the court that its application satisfies the principles governing joinder applications as enunciated in the Supreme Court case in Francis Karioko Muruatetu & Another v Republic & 5 Others [2016] eKLR namely:
1) The clear and identifiable personal interest or stake that the party has in the matter;
2) The prejudice that would be suffered in case of non-joinder; and
3) The relevance of the submissions to be made by the intended Interested Party in aiding the Court to arrive at a fair and just determination.
69. This court is satisfied that the Joinder of the Applicant into this suit will create room for the Applicant’s constituent members that the Applicant represents to express their sentiments and give their views in relation to the protection for their rights as the consumers of the tokens that are at the heart of the procurement.
70. In any event the procurement process of the tokens will be enriched if the public get an opportunity to take part in the decision-making process.
71. Their participation will no doubt go a long day in the promotion of public participation as guaranteed under Article 10 of The Constitution.
72. The court is satisfied that the Applicant has an identifiable stake and interest in the issues before the court given that it has been actively following the issues in the present on behalf of Consumers.
73. This is gleaned from the letter dated 8th August 2025, wherein the Proposed Interested Party wrote to the Ethics and Anti-corruption Commission requesting for urgent investigations into KPLC Smart Meters Tender Irregularities and Fraud on consumers.
74. The fact that the Applicant did not apply to be added as a party when the matter was proceeding before the board cannot form the basis to bar the Applicant from filing the application for joinder before this court and I so hold.
75. The Exparte Applicant and the Interested Parties have not demonstrated that they will suffer prejudice should the application be allowed.
76. This court has also taken a note that the proposed Interested Party has without leave of the Honourable Court and in bad faith joined East Africa Meter Company Limited as the 8th Respondent, which was not a party in the previous proceedings before the Review Board nor in the current judicial review proceedings challenging the board’s decision.
77. The 8th Respondent is not a party to these proceedings.
Disposition:
78. The Applicant’s presence in this suit is necessary in order to enable the court effectually and conclusively determine the issues before it.
Order:
1) The application dated 10th September 2025 is allowed in the following terms.
2) The Applicant shall herein after be referred to as the 5th Interested Party.
3) All the Parties shall serve the 5th Interested Party with the necessary pleadings by noon 30.9.25.
4) The 5th Interested Party shall file and serve its responses and submissions by 5PM of 30.9.25.
5) The other parties shall have the liberty to file and serve supplementary affidavits and submissions by 5pm 1.10.25.
6) Costs shall be in the cause.
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