Republic & another v C.S. Ministry of Petroleum Mining & another [2019] KEELC 4172 (KLR)

Order 53 Rule 3(2) restricts service to persons directly affected, but subrule (4) confers an unfettered discretion on the court to order service and joinder of any person. Although an applicant for joinder under subrule (2) must demonstrate direct effect, the court may invoke subrule (4) to join a person irrespective of a formal application. Because Section 37(1) of the Mining Act requires the registered owner's consent to mining on private land, the landowner's interest is direct and the joinder serves the interests of justice.

The Ex parte Applicant served the Attorney General in Nairobi and was advised to serve the Mombasa office, dispatching the notice by registered mail and G4S courier. The court held this was improper given the size and busyness of the Attorney General's Chambers, requiring personal service. Nonetheless, as principal adviser and legal representative of the national government in civil proceedings, the Attorney General is a proper party and should not be removed.

Judicial review examines the decision-making process rather than the merits of the decision. The court cautioned that joinder does not preclude later removal if a party's presence becomes unnecessary, and that all parties, including the Interested Party, must restrict themselves to process questions rather than converting the review into ordinary civil litigation over the merits.