Tatiana Isabel Whitup v (Respondents - unnamed in extract, image publishers) & Rebecca Muriuki T/A Kahaari (Proposed Third Party)
The bottom line
#In Kenya, courts can use standard civil rules to bring in necessary third parties, even when dealing with constitutional rights cases.
What this practically means
#Executive summary
#Key legal issues
#Applicability of Civil Procedure Rules to constitutional petitions
The Civil Procedure Act and Rules can be relied upon for grant of leave to issue third party notice and third party directions in constitutional petitions, to fill lacunae in the Mutunga Rules.
The Mutunga Rules contain no provision for third party proceedings. Article 159(2)(d) requires justice without undue regard to procedural technicalities, and Rule 3(8) of the Mutunga Rules preserves the court's inherent power to make orders necessary for the ends of justice. Authorities including Abdisalam Hassan Ismail and Karl Wehner Claasen support importing Civil Procedure Rules into petitions. The Marura Maternity decision was distinguished because there no authorities were placed before the court, whereas ample authorities were presented here.
Inordinate delay in filing the third party notice application
The three-month delay was not inordinate; joinder was permitted as no prejudice would be caused and the third party's provision of the images was uncontroverted.
Pleadings closed on 1st August 2018 and the application was filed 19th November 2018, a delay of about three months. The court held that in the interest of doing justice and access to justice, the court should not shut the door where a party can be compensated by costs, and there was no prejudice to the parties. The uncontroverted fact that the third party provided the images made joinder necessary for a just determination.
Threshold for third party notice and directions
The threshold was met: the subject matter is the same (publishing of the Petitioner's images and alleged breach of her rights), and an email showed the third party sold the images to the Respondents.
Under Order 1 Rule 15(1)(a) and (c), the Respondents seek indemnity from the third party on the same subject matter. The events and liability flow from the same source and should be decided in one case. An email and certificate under Section 106B of the Evidence Act, uncontradicted by the third party, established prima facie that she sold the images and is a necessary party.
Legal principles established
#- The Civil Procedure Act and Rules may be imported to fill lacunae in the Mutunga Rules, including for third party notice and directions in constitutional petitions.
- Delay in applying for leave to issue a third party notice is not fatal where no prejudice is caused and the overriding objective favours adjudication of all issues in one suit.
Court orders
#- 1.The Respondents/Applicants application dated 19th November 2018 allowed: the Respondent to issue a Third Party Notice to Rebecca Muriuki T/a Kahaari within 15 days from the date of Ruling
- 2.The Third Party be at liberty to enter appearance within 15 days of service of the notice
- 3.Application dated 17th November 2019 declared premature; directions regarding liability of the third party deferred pending service of the notice and appearance of the Third Party, with liberty to apply for directions within 30 days from the date of appearance of the Third Party
- 4.Costs of the applications shall be in the cause
- Jurisdiction invoked
- Article 22 and 23(3) of the Constitution of Kenya 2010; Mutunga Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tatiana Isabel Whitup v (Respondents - unnamed in extract, image publishers) & Rebecca Muriuki T/A Kahaari (Proposed Third Party)", Case Analysis (2020). Petition dated 13th April 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/2051/eng@2020-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.