Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtDismissedPetition 12 (E016) of 2020

Attorney General v Ndii & 73 others

Supreme Court of Kenya
9 November 2021
781 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Supreme Court dismisses PNU's bid to join constitutional case for lacking a distinct personal interest.

What this practically means

#

The Party of National Unity wanted to join a Supreme Court case about changing the Constitution. The court said no because PNU did not show it had a personal stake in the matter or would suffer harm if left out. Its arguments were too similar to those already being made by other parties. Joining a case is not automatic; you must prove a clear and separate interest.

Executive summary

#
This is a ruling on an application by the Party of National Unity (PNU) seeking to be enjoined as an interested party in Supreme Court proceedings. The applicant argued that it would bring a fresh perspective on the basic structure doctrine, advocating for a 'two-step inquiry' involving civic education, public participation, collation of views, constituent assembly debate, and a referendum for constitutional amendments. The 7th, 8th, 9th, 13th, and 18th respondents opposed the application, contending that PNU had no identifiable interest separate from existing parties and failed to meet the joinder requirements set out in Francis Karioki Muruatetu & another v Republic. The Supreme Court, applying Rule 24(1) of the Supreme Court Rules, 2020, and the principles from Trusted Society of Human Rights Alliance v Mumo Matemu and Muruatetu, found that PNU did not establish a personal interest or stake that was proximate enough to cause prejudice if not joined. The court noted that the applicant's submissions appeared to replicate arguments already before the court. Consequently, the application was dismissed with no order as to costs. The ruling reaffirms the strict criteria for joinder as an interested party in the Supreme Court, emphasizing the need for a distinct and proximate interest.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has met the legal requirements for joinder as an interested party under Rule 24(1) of the Supreme Court Rules, 2020 and the principles in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others and Francis Karioki Muruatetu & another v Republic & 5 others

Key legal issues

#
01

Whether the Party of National Unity met the legal requirements for joinder as an interested party.

Holding

The applicant failed to meet the threshold because it did not establish a personal interest or stake that is proximate enough to occasion prejudice if not enjoined.

Reasoning

The court applied the principles from Trusted Society of Human Rights Alliance v Mumo Matemu and Francis Karioki Muruatetu & another v Republic, which require an applicant to demonstrate a personal interest, prejudice from non-joinder, and that submissions are not a replication of other parties' arguments. The court found that the applicant's submissions, which argued for a 'two-step inquiry' on basic structure amendments, did not show a distinct personal interest or stake separate from the parties already on record, and thus failed to satisfy the elements.

Legal principles established

#
  • Joinder as an interested party is discretionary, not a right.
  • Applicant must demonstrate a personal and proximate interest in the case.
  • Applicant must show prejudice or harm if not allowed to join.
  • Submissions must be distinct and not merely replicate other parties' arguments.
  • All three elements must be satisfied for the court to grant joinder.
  • The burden of proof lies on the applicant seeking joinder.

Court orders

#
  1. 1.The application for joinder as an interested party is dismissed.
  2. 2.There shall be no order as to costs.

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority

Wrote the judgment

majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
Jurisdiction invoked
Rule 24(1) of the Supreme Court Rules, 2020

Relief refused

#

Joinder of the Party of National Unity as an interested party in the proceedings

The applicant failed to establish a personal interest or stake that is proximate enough to occasion any prejudice to it if not enjoined.

Costs

There shall be no order as to costs.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We therefore find no merit in the application and we accordingly dismiss it.
p. 4 Dismissal of joinder application
There shall be no order as to costs.
p. 4 Costs order
the applicant has not met the threshold for admission as an interested party as it has failed to establish a personal interest or stake that is proximate enough to occasion any prejudice to it, if not enjoined in these proceedings.
p. 4 Failure to meet joinder threshold

Key timeline

#
Ruling date (not specified in analysis)
Supreme Court dismisses Party of National Unity's application for joinder as interested party.

Practical implications

#
For lawyers

Strict joinder criteria reaffirmed

When advising clients on joining Supreme Court proceedings, ensure you can clearly articulate a personal interest, potential prejudice, and that your submissions will add something new. The court will reject applications that merely echo existing arguments, as seen in this case. Prepare a detailed affidavit addressing all three Muruatetu elements.

For businesses

Limited ability to intervene in constitutional cases

If your business wants to join a constitutional case in Kenya, you must show a direct and personal stake—not just a general interest in the outcome. The court will not allow you to intervene if your arguments overlap with those of other parties. Consider whether you can demonstrate unique harm or a distinct perspective before applying.

For individuals

Joining a court case is not automatic

As an individual, you cannot simply ask to join a Supreme Court case. You must prove that you have a personal interest that is separate from everyone else, that you will be harmed if you are not included, and that your arguments are different from what others are saying. This ruling shows the court takes these requirements seriously.

Frequently asked questions

#
What is an interested party in Kenya Supreme Court?+

An interested party is someone who is not the main applicant or respondent but has a personal stake in the case. In Kenya, you must apply to the court and show you have a distinct interest, would suffer prejudice if not joined, and your submissions are not just repeating what others will say.

How do I join a case as an interested party in Kenya?+

You must file a formal application under Rule 24(1) of the Supreme Court Rules, 2020. The application must explain your personal interest, the harm you will face if not joined, and the unique arguments you will make. The court has discretion to grant or deny the request.

What are the requirements for joinder in Kenya?+

The Supreme Court requires three things: (1) a personal and proximate interest in the matter, (2) prejudice or harm if you are not allowed to join, and (3) submissions that are not a mere replication of what other parties will argue. All three must be clearly shown.

Can a political party join a constitutional case in Kenya?+

Yes, but only if it meets the strict joinder criteria. In this case, the Party of National Unity failed because it did not show a separate personal interest—its arguments were similar to those already before the court. Political parties must demonstrate a unique stake beyond general policy concerns.

Later judgments citing this (5)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Attorney General v Ndii & 73 others", Case Analysis (2021). Petition 12 (E016) of 2020. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/17/eng@2021-11-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.