Oliver Mukhebi & 26 others v Bungoma County Public Service Board & another; Barasa Kundu Nyukuri (Interested party) [2021] KEELRC 58 (KLR)
The bottom line
#Kenya's Employment Court refused to add an 'interested party' to a Bungoma hiring dispute, ruling that public interest claims and even dishonest filings cannot replace a genuine personal stake in a case.
What this practically means
#Executive summary
#Key legal issues
#Test for joinder of an interested party
The proposed interested party must demonstrate an identifiable, legal and personal stake in the proceedings; the Applicant had no personal stake and failed the test
The court adopted the definitions in the Mutunga Rules, the Supreme Court's decision in Francis Karioki Muruatetu and the Mumo Matemu decision, all requiring a stake in the proceedings. The Applicant was not an applicant in the recruitment process, had no privity with the Respondents, and his claimed role as a Public Interest Litigant under Article 258 does not substitute for a personal stake. His application for conservatory orders in the underlying petition gave him no cause of his own.
Credibility of the Applicant and abuse of court process
The Applicant misled the court by claiming to have submitted a petition to the Board on 3rd November 2021 when the annexure was dated 2nd December 2021; he came to court with dirty hands
The court observed that the supporting affidavit alleged a petition submitted on 3rd November 2021, yet annexure BN-1 was dated 2nd December 2021, one day before filing, was unstamped and unaccompanied by email evidence. The court treated this as a deliberate attempt to mislead it, found the Applicant was not acting in good faith, and held that equity frowns on such conduct. This falsehood independently undermined the application.
Filing of further affidavit and evidence without leave
The further affidavit and evidence dated 14th December 2021 filed without leave of court was struck out
The proposed interested party filed a further affidavit and evidence in Petition No. E12 of 2021 dated 14th December 2021 without the leave of the court. The court struck out the further affidavit as improperly on record. The Petitioners' reliance on that further affidavit in support of the joinder could therefore carry no weight.
Legal principles established
#- An interested party is one who has a stake in the proceedings and will be affected by the decision of the court either way; such a party must demonstrate a personal stake in the matter before the court
- The broad constitutional right to petition under Article 258 is a right of petitioners, not a basis for interested parties to be enjoined
- A litigant who comes to court on falsehoods comes with dirty hands and equity frowns on that conduct
Court orders
#- 1.The Applicant's further affidavit and what he called evidence dated 14th December 2021 filed without leave of court is struck out
- 2.The Notice of Motion application dated 3rd December 2021 seeking leave to join as interested party is dismissed
- 3.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Rule 5 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012 (Mutunga Rules); Articles 22, 258 and 41 of the Constitution (employment and labour relations jurisdiction over county public service recruitment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oliver Mukhebi & 26 others v Bungoma County Public Service Board & another; Barasa Kundu Nyukuri (Interested party) [2021] KEELRC 58 (KLR)", Case Analysis (2021). Petition No. E12 of 2021 (Notice of Motion application dated 3rd December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/58/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.