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ELRCDismissedApplication dated 12th March 2021 (within a petition)· [2021] KEELRC 1009 (KLR)

Margaret Wanja Muthui v Ministry of Transport, Infrastructure, Housing Urban Development and Public Workers & 2 others [2021] KEELRC 1009 (KLR)

Employment and Labour Relations Court
16 September 2021
MNMathews N. Nduma
1,166 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to let an industry body join its member's case, confirming that joining a lawsuit is never automatic.

What this practically means

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Executive summary

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Kenya Institute of Supplies Management, a body corporate established under Section 3(1) of the Supplies Practitioners Management Act, 2007, applied by notice of motion dated 12th March 2021 to be joined as an interested party in a petition filed by one of its members against her employer. The applicant argued that its statutory mandate to train, register, licence, discipline and regulate supplies practitioners, and to safeguard their interests under Section 5 of the Act, together with Article 22(2)(d) of the Constitution, entitled it to participate in the petition and to assist the Court on the applicable standards of supplies practice in public procurement. The respondents opposed, contending the dispute was purely an employer-employee matter, the petitioner was already represented by advocates on record, the applicant had not demonstrated any identifiable stake, prejudice, or non-replicative submissions, and its real aim was to meddle in employment issues. Relying on the Supreme Court's principles in Raila Amolo Odinga (with reference to Muruatetu), the Court set out three elements for joinder: an identifiable and proximate personal interest or stake; demonstrated prejudice from non-joinder; and the intended case and submissions showing they are not a mere replication of other parties' cases. The Court found the applicant completely failed on all three elements and further held that Article 22(2)(d), which permits an association to institute suit in the interest of its members, was invoked wrongly since the member had herself already instituted the petition. The application was dismissed with costs on 16th September 2021.

Key legal issues

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01

Elements for joinder of an interested party

Holding

The grant of joinder is discretionary and the applicant must set out a clearly identifiable and proximate personal interest, demonstrate prejudice from non-joinder, and set out the case and submissions it intends to make showing they are not a mere replication of other parties' cases

Reasoning

The Court adopted the Supreme Court's principles in Raila Amolo Odinga (with Muruatetu as Amicus Curiae) and the principles in the Kenya Medical Laboratory Technicians case cited by the applicant. It found the applicant completely failed on all three elements: the dispute was purely an employer-employee matter, no personal interest or prejudice was established, and the intended submissions were not shown.

p. 2
02

Scope of Article 22(2)(d) in joinder applications

Holding

Article 22(2)(d) concerns an association instituting a suit in the interest of its members and cannot be used to join an association to a petition its member has already instituted herself

Reasoning

The Court held the applicant invoked Article 22(2)(d) wrongly. That provision grants an association the right to act in the interest of one or more of its members by instituting a suit. Here the member, the petitioner, had already instituted the petition through her advocate on record, so the provision had no application to a joinder application.

p. 2

Legal principles established

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  • Enjoinment as an interested party is not as of right; a party must move the Court by formal application and satisfy the three elements of identifiable interest, prejudice, and non-replicative submissions

Court orders

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  1. 1.The application for joinder as an interested party is dismissed with costs

Authorities

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Legislation

  • Supplies Practitioners Management ActSection 3(1)
  • Supplies Practitioners Management ActSection 5(a)(f)
  • Constitution of Kenya, 2010Article 22(2)(d)

Cases cited (5)

  • Kenya Medical Laboratory Technicians and Technologists Board and 6 Others –vs- Attorney General and 4 Others
    [2017] eKLR
  • Harpal Singh Semhi and 4 Others –vs- Zehrabanu Janmohammed and 3 Others; Sports Registrar and 9 Others
    [2020] eKLR
  • In the Trusted Society of Human Rights Alliance –vs- Mumo Matemu and 5 Others
    [2015] eKLR
  • Raila Amolo Odinga and Another and Independent Electoral and Boundaries Commissions and 2 others and Michael Wainaina Mwaura (as Amicus Curie)
    2017 eKLR
  • Francis Karili Muruatetu and Another –vs- Republic and 5 Others – Petition 15 as consolidated with 16 of 2013
    (2016) eKLR
Jurisdiction invoked
Discretionary joinder of an interested party to a pending petition

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, "Margaret Wanja Muthui v Ministry of Transport, Infrastructure, Housing Urban Development and Public Workers & 2 others [2021] KEELRC 1009 (KLR)", Case Analysis (2021). Application dated 12th March 2021 (within a petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1009/eng@2021-09-16

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