British American Tobacco Kenya PLC (Formerly British American Tobacco Kenya Limited) v Ministry of Health & 2 others; Kenya Tobacco Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party); Kariuki, Ndegwa & Kubuthu (Applying as Secretary, Chairperson & Treasurer of Kiambu County Welfare Association) & 6 others (Interveners)
The bottom line
#Supreme Court blocks post-judgment joinder; you cannot join a case after it's already decided.
What this practically means
#The Supreme Court dismissed an attempt by two people to join a case that was decided five years ago. The law only allows joining as an interested party or amicus curiae while the case is ongoing, not after a final judgment. The Court called the application misguided and an abuse of process. No costs were awarded because the motion was unopposed.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants can be enjoined as parties in an already decided matter for the purpose of applying for review of the judgment.
Key legal issues
#Whether a person can be joined as an intervener in a concluded Supreme Court matter for the purpose of applying for review of the judgment.
No. The Supreme Court Act and Rules only provide for joinder of amici curiae or interested parties during the conduct of proceedings, not after final judgment. There is no provision for joinder as an 'intervener' after judgment.
The Court examined the Supreme Court Act 2011 and Supreme Court Rules 2020, noting that Rule 19 provides for amici curiae and Rule 24 for interested parties, both requiring application during proceedings. The Practice Direction mentions 'intervener' only in the context of document cover color. The applicants sought joinder five years after judgment, without showing any ground for review or prejudice, making the application an abuse of process.
Legal principles established
#- Joinder as an intervener is only allowed during proceedings, not after final judgment.
- The Supreme Court Act and Rules do not provide for post-judgment joinder.
- An application for joinder after judgment without grounds for review is an abuse of process.
- The Practice Direction's reference to 'intervener' is only about document cover color, not a substantive right.
- No costs are awarded when a motion is unopposed.
Court orders
#- 1.The Applicant’s Notice of Motion dated 17th July 2024 and filed on 21st August 2024 is hereby dismissed.
- 2.As the Motion was not opposed, we make no orders as to costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 21A of the Supreme Court Act Cap 9B Laws of Kenya
Relief refused
#Joinder of the applicants as parties in Petition 5 of 2017 for the purpose of applying for review of the judgment
The application is misguided, frivolous, filed almost five years after the judgment was rendered and is a clear abuse of court process.
Costs
As the Motion was not opposed, we make no orders 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.
The Supreme Court Act and the Supreme Court Rules do not contemplate an instance where a party can be joined as an intervener. In the joinder of an amicus curiae or interested party, the application is made during the conduct of the proceedings and not after the final decision of the Court has been rendered.
The application is misguided, frivolous, filed almost five years after our judgment was rendered and is a clear abuse of court process and must therefore be dismissed with no order as to costs since it was not responded to.
The Applicant’s Notice of Motion dated 17th July 2024 and filed on 21st August 2024 is hereby dismissed.
Key timeline
#Practical implications
#No post-judgment joinder in Supreme Court
Advise clients that any application to join as an interested party or amicus curiae must be made during the conduct of proceedings, not after final judgment. Filing after judgment will be dismissed as an abuse of process. Ensure timely applications under Rules 19 and 24 of the Supreme Court Rules.
Finality of Supreme Court decisions
Once the Supreme Court decides a case, it is final. Attempts to intervene later to challenge the outcome will fail. If your business has a stake in a pending Supreme Court matter, participate early by applying to join while the case is ongoing.
Act early if you have a stake
If you believe a Supreme Court case affects your rights, you must apply to join while the case is still being heard. Waiting until after judgment is too late; the Court will not allow you to become a party or seek review through joinder.
Frequently asked questions
#Can I join a Supreme Court case after it has been decided in Kenya?+
No. The Supreme Court only allows joinder of interested parties or amici curiae during the conduct of proceedings. After final judgment, you cannot be added as a party.
What is an intervener in the Kenyan Supreme Court?+
The term 'intervener' appears only in a Practice Direction about document cover color. There is no substantive right to intervene after judgment under the Supreme Court Act or Rules.
How do I apply to be an interested party in a Supreme Court case in Kenya?+
You must apply under Rule 24 of the Supreme Court Rules during the conduct of proceedings, not after final judgment. The application should show your interest and why joinder is necessary.
What happens if I file a late joinder application in Kenya's Supreme Court?+
The Court will dismiss it as an abuse of process, especially if filed years after judgment without grounds for review. You cannot use joinder to reopen a concluded case.
Cite this brief
#Cite this brief
Caselaw, "British American Tobacco Kenya PLC (Formerly British American Tobacco Kenya Limited) v Ministry of Health & 2 others; Kenya Tobacco Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party); Kariuki, Ndegwa & Kubuthu (Applying as Secretary, Chairperson & Treasurer of Kiambu County Welfare Association) & 6 others (Interveners)", Case Analysis (2024). Petition (Application) 5 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/68/eng@2024-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.