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ELRCDismissedNotice of motion dated May 6, 2022 (petition judgment delivered August 20, 2015)· [2023] KEELRC 135 (KLR)

Ongwenyi v Ethics and Anti-Corruption Commission & 7 others (Petition 51 of 2014) [2023] KEELRC 135 (KLR)

High Court of Kenya
26 January 2023
697 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to add EACC officials to a long-concluded case, ruling the issue was already decided by the Court of Appeal.

What this practically means

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Executive summary

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By a notice of motion dated May 6, 2022, the petitioner/applicant sought leave to join Archbishop Eliud Wabukhala as 2nd Respondent in place of Mumo Matemu and Major (Rtd) Twalib Mbarak as 5th Respondent in place of Halakhe Waqo, and to renew the names of the 2nd to 8th respondents in the proceedings. The applicant argued that Wabukhala had assumed office as Chairperson of the Ethics and Anti-Corruption Commission and Mbarak as its CEO during the pendency of the suit, that the respondents had failed to comply with the court's orders, and that joinder was in the interest of the rule of law. The respondents filed grounds of opposition, contending that apart from prayer 4 the application was contradictory and vague; that the joinder of the 2nd to 6th respondents had been conclusively determined as improper by the Court of Appeal in Civil Appeal No 229 of 2017, rendering the application res judicata; that judgment had been delivered in the petition on August 20, 2015, so no pending proceedings existed in which joinder could be ordered; and that the application offended rule 5(c) and (d) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 as read with Order 1 rule 10(2) of the Civil Procedure Rules. Holding that the Court of Appeal's decision had sealed the matter and applied equally to the successors of the originally joined officers, the court (Matheus Nderi Nduma, J) dismissed the application with costs.

Key legal issues

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01

Res judicata regarding joinder of respondents

Holding

The application to join and substitute respondents is res judicata and cannot be entertained; the Court of Appeal's decision stands.

Reasoning

The Court of Appeal in Civil Appeal No 229 of 2017 expressly held that joinder of the 2nd to 6th respondents to the petition was improper. That determination binds this court. The applicant, who was party to that appeal, cannot revisit the same issue post-judgment. The decision equally applies to the officers who replaced the originally joined respondents.

p. 2
02

No pending proceedings

Holding

Having delivered judgment in 2015, the suit is concluded and there are no live proceedings in which joinder could be ordered.

Reasoning

Joinder under order 1 rule 10(2) presupposes pending proceedings. Since judgment was delivered on August 20, 2015, the petition is spent, and the court cannot entertain substitution or joinder of parties at this stage. The respondents' grounds of opposition were therefore upheld in full.

p. 2

Legal principles established

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  • A matter conclusively determined by the Court of Appeal cannot be revisited afresh by the trial court on the same issues between the same parties.
  • Post-judgment, there are no pending proceedings in which a court may order joinder of additional parties.

Court orders

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  1. 1.The application for joinder is dismissed with costs
  2. 2.The court upholds the grounds of opposition by the respondents

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013rule 5(c) and (d)
  • Civil Procedure Rules, 2010Order 1 rule 10(2)

Cases cited (1)

  • Ethics and Anti-Corruption Commission and 5 others v Henry Morara Ongwenyi & 3 others
    [2019] eKLR, Civil Appeal No 229 of 2017
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; Article 22 constitutional petition jurisdiction (implied from 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, "Ongwenyi v Ethics and Anti-Corruption Commission & 7 others (Petition 51 of 2014) [2023] KEELRC 135 (KLR)", Case Analysis (2023). Notice of motion dated May 6, 2022 (petition judgment delivered August 20, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/135/eng@2023-01-26

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