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ELRCPartially AllowedNotice of motion dated 13.07.2020 in Petition dated 24th June 2020· [2020] KEELRC 339 (KLR)

Okoiti v Attorney General; Njenga (Intended Interested Party) [2020] KEELRC 339 (KLR)

Employment and Labour Relations Court
16 October 2020
1,518 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed an advocate to join a judges' appointment case as an interested party because his related lawsuit gave him a real stake.

What this practically means

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Executive summary

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By notice of motion dated 13 July 2020, Adrian Kamotho Njenga Advocate sought leave to be enjoined as an interested party in a petition dated 24 June 2020 pending before the Employment and Labour Relations Court. He relied on Articles 22, 23, 27, 47, 48, 162(2)(a), 165 and 258 of the Constitution, sections 1A and 1B of the Civil Procedure Act and the Mutunga Rules, arguing that he had a discernible stake in the proceedings because the petition assailed an order and decree in his own still-alive High Court petition, Petition 369 of 2019, concerning the appointment of 41 judges recommended by the Judicial Service Commission. He contended his participation would aid the Court, prevent miscarriage of justice and serve the public interest. The Attorney General opposed through grounds of opposition dated 29 July 2020, contending that the applicant's interests overlapped entirely with the petitioner's, that Petition 369 of 2019 was determined and on public record, and that the applicant had not demonstrated the requisite stake or expertise. The Court found the material facts in the supporting affidavit uncontroverted, noted that the petitioner's own pleadings referred to Petition 369 of 2019 and to the 41 recommended judges, and held that the applicant had established a stake and interest. Applying the Mutunga Rules definition of an interested party, the Meme v Republic principle on preventing proliferated litigation and Muruatetu, and section 3 of the ELRC Act, the Court allowed the application, enjoined the applicant as interested party, ordered service of papers within 7 days, and directed each party to bear own costs as public interest litigation.

Key legal issues

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01

Whether the applicant met the threshold for joinder as an interested party

Holding

The Court found that the applicant, being the petitioner in the related, still-alive High Court Petition 369 of 2019 which raises substantially similar issues, has a discernible stake and interest in the present petition.

Reasoning

The Court noted no affidavits were filed to deny the material facts in the supporting affidavit. It found the petitioner's own pleadings referred to Petition 369 of 2019 and to the 41 judges recommended for appointment, an issue similarly in issue in that petition. The applicant's presence was thus necessary for efficient, effective and complete determination, and to prevent proliferated litigation.

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02

Whether the public interest nature of the petition supports enjoinment

Holding

The public interest nature of the petition, which was not denied, reinforced the applicant's joinder, consistent with the Supreme Court's approach in Muruatetu.

Reasoning

The Court invoked the Mutunga Rules definition of an interested party and the Supreme Court's decision in Francis Karioki Muruatetu, where parties were enjoined in view of the unique and public interest nature of the matter. It applied section 3 of the Employment and Labour Relations Court Act, 2011 on just, expeditious and proportionate resolution.

p. 3

Legal principles established

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  • An interested party is a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the Court but is not a party to the proceedings or may not be directly involved in the litigation.
  • Joinder may be necessary where the Court seeks to prevent proliferated litigation arising from substantially similar issues.

Court orders

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  1. 1.The application by notice of motion dated 13.07.2020 is allowed
  2. 2.The applicant Adrian Kamotho Njenga Advocate is granted leave to be enjoined in the present petition as an interested party
  3. 3.The petitioner and the respondent to serve their respective papers on record upon the applicant within 7 days
  4. 4.Each party to bear own costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23, 27, 47, 48, 162(2)(a), 165, 258
  • Civil Procedure Actsections 1A, 1B
  • Employment and Labour Relations Court Act, 2011section 3
  • Employment and Labour Relations Court (Procedure) Rulesrule 3
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 2 and 7

Cases cited (3)

  • Meme – Versus – Republic
    [2004] eKLR
  • Francis Karioki Muruatetu & Another – Versus – Republic & 5 others
    [2016] eKLR
  • Adrian Kamotho Njenga – Versus – Attorney General; Judicial Service Commission & 2 Others (Interested Parties)
    Petition 369 of 2019
Jurisdiction invoked
Articles 22, 23, 27, 47, 48, 162(2)(a), 165 and 258 of the Constitution of Kenya; sections 1A and 1B of the Civil Procedure Act; section 3 of the Employment and Labour Relations Court Act, 2011; Mutunga Rules Rules 2 and 7

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okoiti v Attorney General; Njenga (Intended Interested Party) [2020] KEELRC 339 (KLR)", Case Analysis (2020). Notice of motion dated 13.07.2020 in Petition dated 24th June 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/339/eng@2020-10-16

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