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High CourtPartially AllowedPetition dated 13th April 2018· [2020] KEHC 2051 (KLR)

Tatiana Isabel Whitup v (Respondents - unnamed in extract, image publishers) & Rebecca Muriuki T/A Kahaari (Proposed Third Party)

High Court of Kenya
29 October 2020
6,129 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling by J. A. Makau J of the High Court at Nairobi on two interlocutory applications in a constitutional petition filed on 13th April 2018 by Tatiana Isabel Whitup, who alleged violations of her rights under Articles 28, 29(d) and 31(c) arising from the publication of her images, and sought declarations and damages. The Respondents applied under Order 1 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act for leave to issue a third party notice to Rebecca Muriuki T/A Kahaari, the party from whom they obtained the images and who allegedly represented she had the Petitioner's consent to their use. The proposed third party opposed, arguing that third party proceedings have no place in constitutional petitions and that only joinder as an interested party under Rule 7 of the Mutunga Rules is permissible. The Petitioner later sought directions on the third party's liability. The court framed three issues: applicability of the Civil Procedure Act and Rules to petitions, inordinate delay, and the threshold for third party notice and directions. Holding that the Mutunga Rules contain a lacuna on third party proceedings, the court found ample jurisprudence permitting importation of the Civil Procedure Rules, distinguished the Marura Maternity decision, found the three-month delay not inordinate and unprejudicial, and found the same subject matter and uncontroverted email evidence made the third party a necessary party. The Respondents' application was allowed with leave to issue the third party notice within 15 days; the Petitioner's application for liability directions was held premature and deferred; costs were in the cause.

Key legal issues

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01

Applicability of Civil Procedure Rules to constitutional petitions

Holding

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.

Reasoning

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.

p. 8
02

Inordinate delay in filing the third party notice application

Holding

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.

Reasoning

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.

p. 9
03

Threshold for third party notice and directions

Holding

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.

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 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. 2.The Third Party be at liberty to enter appearance within 15 days of service of the notice
  3. 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. 4.Costs of the applications shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya 2010Article 28
  • Constitution of Kenya 2010Article 29(d)
  • Constitution of Kenya 2010Article 31(c)
  • Constitution of Kenya 2010Article 22(3)
  • Constitution of Kenya 2010Article 23(3)
  • Constitution of Kenya 2010Article 159(2)(d) and (e)
  • Constitution of Kenya 2010Article 165(3)(b)
  • Constitution of Kenya 2010Article 259
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 1 Rule 15
  • Civil Procedure RulesOrder 1 Rule 19
  • Civil Procedure RulesOrder 1 Rule 22
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 45
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 3, 3(8), 5(a), 7(1), 7(2), 8
  • Evidence ActSection 106B

Cases cited (14)

  • Law Society of Kenya v. Cabinet Secretary for Health & 6 Others
    HC Pet No. 78 of 2020 consolidated with Petition No. 79/2020 and Pet 80/2020 and Pt 81/2020

    Definition of 'appropriate relief' under Article 23(3)

  • EWA and 2 others v. Director of Immigration and Registration of Persons & another
    (2018) eKLR

    Definition of appropriate relief as relief required to protect and enforce the Constitution

  • Fose v. Minister of Safety and Security
    (CCT 14/96) 1997, ZACC 6, 1997

    Appropriate relief to ensure constitutional rights are protected and enforced

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commissions & 7 Others
    [2014] eKLR

    Duty of counsel to be abreast with the law; time frames in dispensation of justice

  • L.A.W & 2 others v Marura Maternity Nursing Home & 2 others
    [2016] eKLR

    Declining third party joinder in constitutional litigation where no authorities supported it; distinguished

  • Abdisalam Hassan Ismail & 2 others v. Kenya Railways Corporation & 3 others
    [2015] eKLR

    Civil Procedure Act provisions apply to constitutional petitions; technicalities should not be entertained

  • Vallerie Namtilu Wafula & Another v Kenya National Union Of Teachers (Knut) & 2 Others
    eKLR

    Procedural technicalities in Bill of Rights enforcement should not be entertained

  • Meme Vs. Republic
    [2014] 1 EA 124; [2004] 1 KLR 637

    Court empowered to draw from Civil Procedure Rules in exercise of powers under the practice rules

  • Karl Wehner Claasen v. Commissioner of Lands & 4 others
    [2019] eKLR

    Nothing wrong in relying on Civil Procedure Rules where Mutunga Rules have no provision, e.g. substitution

  • Boniface Mutinda Kabaka v David Mutua Kamonde Katua & 51 others
    [2018] eKLR

    Filing out of time without leave renders a filing a nullity (relied on by proposed third party on delay)

  • Roshanara Ebrahim v Ashileys Kenya Limited & 3 Others
    [2016] eKLR

    Unauthorised forwarding of private photographs violates Article 31(c) right to privacy; compensation in damages

  • Interactive Advertising Limited & another v Equity Bank Limited & 2 Others
    [2016] eKLR

    Requirements for leave to issue third party notice under Order 1 Rule 15(1)(c)

  • Yafesi Wahisimbi vs. Attorney General of Uganda
    (1959) EA 223

    Subject between third party and defendant must be the same as between plaintiff and defendant

  • Savji Harji Varsani v Kanjee Naranjee (Kenya) Ltd
    [1977] eKLR

    Third party notice proper where parties bound by same facts and issues better thrashed out in one suit

Jurisdiction invoked
Article 22 and 23(3) of the Constitution of Kenya 2010; Mutunga Rules

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, "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.