STEPHEN MUTUNGA WAMBUA AND SIMON KIMUTAI CHEPKWONY AND 9 Others VS THE COMMISIONER OFINSURANCE AND THE INSURANCE REGULATORY AUTHORITY AND 1 Others STEPHEN MUTUNGA WAMBUA AND SIMON KIMUTAI CHEPKWONY AND 9 Others VS THE COMMISIONER OFINSURANCE AND THE INSURANCE REGULATORY AUTHORITY AND 1 Others

The Court has noted that the 4th Petitioner/Applicant's Notice of Motion Application dated 03/12/2024 cites one 'Anita Alela' as the 1st Respondent, yet that person was not and is not part of the Respondents in the Petition or the other pleadings filed in this matter. That stated person is also not an Interested Party in these proceedings, nor is she before the Court in this matter in any other capacity.
The Notice of Motion Application dated 03/12/2024 in seeking substantive orders of significant import and consequence against a person who is not a party to the proceedings; and without the 4th Petitioner/Applicant having first taken certain steps prior to the filing of the said Application, it most certainly incapable of yielding a positive outcome for its mover, the 4th Petitioner/Applicant.
Seeking substantive adverse orders against an individual who has not been joined as a Respondent, or Petitioner, or at the very least an Interested Party is not a matter that can be cured by this Court by reference to Article 159(2)(d). Non-joinder such as is the case at present is not a procedural technicality and requiring that an Applicant should have first taken steps to formally bring a Party before the Court is not having undue regard to procedural technicalities. The issue goes to the very heart of a fair hearing and the orderly progression of matters before the Court.
Having said that, it is also important for this Court to state clearly that the situation would be different had there been a prayer for joinder of the said Anita Alela in the Application. There is none, and the Court, even at this preliminary stage, can say that in the absence of the same the Application is fatally incompetent and doomed to certain failure; even without that position being articulated by the other parties in their responses to the Application.
Additionally, the nature of the Application and the background set out in the grounds of the Application as well as the Supporting Affidavit make it clear to my mind that it would not be judicially safe for this Court to exercise its discretion under Rule 5(d)(ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 by adding the said person as a Respondent in this case, suo moto. To my mind, doing so would amount to this Court somewhat descending into the gladiatorial arena and using its powers and discretion in favour of one party over others without having heard those parties who would oppose the Application and the orders sought therein. The other avenue would be to issue directions on service of the Application and thereafter filing and service of responses to the Application, but the same would not only expend precious and scarce judicial time only to arrive at an already manifestly clear outcome, but it would also imperil the Applicant with respect to a potential adverse order as to costs.
It is ultimately in the best interest of the 4th Petitioner/Applicant for the Application dated 03/12/2024 to be summarily determined at this earliest stage possible, and to allow the 4th Petitioner/Applicant time to put his house in order; rather than to allow it to be served and responded to; only to yield the result that is apparent to this Court even at this stage. Such an eventuality, were it to come after responses and hearing, would also carry with it the peril of costs against the Applicant; and it would also come after much judicial time had been spent only to arrive on an outcome that is apparent to the Court even at this preliminary stage.
Consequently, it is in the interest of justice and the proper administration and progression of this Petition that the 4th Petitioner/Applicant's Notice of Motion Application dated 03/12/2024 be struck out with no orders as to costs, and it is hereby struck out on those terms.
For the avoidance of doubt, the striking-out of the said Application shall not be a res judicata bar to the hearing and determination of any future and proper application canvassing the same subject matter.
Mention date of 10/12/2024 maintained.

STEPHEN MUTUNGA WAMBUA AND SIMON KIMUTAI CHEPKWONY AND 9 Others VS THE COMMISIONER OFINSURANCE AND THE INSURANCE REGULATORY AUTHORITY AND 1 Others

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