Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Application) No. 132 of 2017· [2018] KECA 689 (KLR)

Attorney General v Kenya Bureau of Standards & another [2018] KECA 689 (KLR)

Court of Appeal
21 March 2018
William OukoW. OukoMohamed Abdulahi WarsameM. WarsameAMA.K. Murgor
1,574 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to let the Attorney General join a Kshs 1.59 billion arbitration appeal, ruling that a large public money claim alone doesn't justify intervention.

What this practically means

#

Executive summary

#
This ruling of the Court of Appeal at Nairobi (Ouko, P, Warsame and Murgor, JJ.A) dismissed an application by the Attorney General to be joined as an interested party in KEBS' intended appeal against the decision of Ochieng, J, who had adopted an arbitral award of US$15,401,504.70 (less Kshs 87,988,213.15 on KEBS' counterclaim) as a judgment of the High Court in a dispute with Geo-Chem Middle East over a 2009 petroleum inspection contract. The Attorney General argued that the award was illegal, contrary to public policy, and involved public money, garnishee proceedings, and public finance principles under Article 201 of the Constitution. He invoked Article 156(5) of the Constitution and Sections 6(2) and 7 of the Office of the Attorney-General Act to assert a right of audience where public interest or public property is involved. The court, while affirming that joinder may occur at any stage including on appeal, held that the applicant had to satisfy it that public interest or public property was genuinely engaged. It found that the sheer size of the award could not justify joinder, that the applicant's submissions would not differ from those already on record, and that no prejudice to the applicant or the country was demonstrated. The application was dismissed with no orders as to costs.

Key legal issues

#
01

Joinder of a party at the appellate stage

Holding

The court may join a party at any stage, including on appeal, but the applicant must demonstrate that the joinder is justified and would enable the court to effectually and completely adjudicate upon all questions in the suit.

Reasoning

The court relied on Order 1 Rule 10(2) principles as applied in M K v M W M, stressing that joinder is discretionary and can occur even suo motu. The guiding principle is that amendments and joinders should be freely allowed unless they cause prejudice or injustice not compensable in costs. No suit shall be defeated by non-joinder, and the court may determine the controversy as between the parties actually before it. However, the applicant must show doubt as to liability and desirability of joinder.

p. 2
02

The Attorney General's right to intervene on grounds of public interest or public property

Holding

Under Sections 6(2) and 7 of the Office of the Attorney-General Act, the Attorney General may appear with leave of the court in proceedings he considers to be of public interest or involving public property, but he must satisfy the court of that interest.

Reasoning

The applicant argued that an arbitral award of approximately Kshs 1.59 billion was public money, that garnishee proceedings were pending, and that his intervention was needed to protect public finance principles under Article 201 of the Constitution. The court held that the colossal size of the award alone could not justify joinder, that his submissions would not differ from those of the existing parties, and that he had not demonstrated what prejudice he or the country would suffer if denied intervention.

p. 2

Legal principles established

#
  • The power of the court to add a party to proceedings can be exercised at any stage of the proceedings, including at the appellate stage, and a party can even be joined without applying.
  • Joinder must be justified: the circumstances must show doubt as to which parties are liable, that adding the party would enable the court to resolve all matters in the dispute, and that the joinder is not intended to vex or convolute the proceedings.
  • The mere size of an award does not justify joining the Attorney General; he must satisfy the court of the public interest or public property involved.
  • Being titular head of the bar does not vest the Attorney General with intellectual superiority over other advocates.

Court orders

#
  1. 1.The notice of motion dated 7th September 2017 seeking joinder of the Attorney General as an interested party is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 156(5)
  • Constitution of Kenya, 2010Article 6(2)(a) and 7
  • Constitution of Kenya, 2010Article 201
  • Office of the Attorney-General Act, 2012Sections 6(2), 7(1)(a), 7(2)(b)
  • Appellate Jurisdiction Act
  • Court of Appeal RulesRule 77
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Government Proceedings Act (Cap. 40)
  • Advocates ActSection 20
  • Public Finance and Management Act
  • Arbitration ActSection 36
  • Legal Notice No. 142 of 2009

Cases cited (2)

  • M K v M W M & another
    Cause No. 268 of 2013
  • Central Kenya Ltd. V. Trust Bank & 4 Other
    CA No. 222 of 1998
On appeal from
High Court
Jurisdiction invoked
Appellate Jurisdiction Act; Court of Appeal Rules; constitutional and statutory provisions on the Attorney General's audience including Article 156(5) of the Constitution, Sections 6(2) and 7 of the Office of the Attorney-General Act, 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (25)

#

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 Kenya Bureau of Standards & another [2018] KECA 689 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 132 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/689/eng@2018-03-21

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