Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
MagistrateDismissedShanzu Miscellaneous Criminal Application No. 152 of 2023 (as consolidated with Misc. Criminal Application No. 156 of 2023)

Republic v Kenga & 41 others; Kenya National Commission on Human Rights (KNCHR) (Interested Party) (Miscellaneous Criminal Application E153 & E156 of 2023 (Consolidated)) [2023] KEMC 57 (KLR)

Shanzu Law Courts (Magistrates' Court)
1 December 2023
6,469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to let the human rights commission join the Shakahola case because it didn't prove it had a real stake in the outcome.

What this practically means

#

Executive summary

#
This ruling by Senior Principal Magistrate Omido at Shanzu determined a Notice of Motion dated October 18, 2023 by the Kenya National Commission on Human Rights (KNCHR) seeking to be enjoined as an Interested Party in Miscellaneous Criminal Application No. 152 of 2023 (consolidated with No. 156 of 2023), the Shakahola massacre-related pre-trial detention proceedings involving 66 Respondents, and to obtain directions on filing of pleadings and evidence. The State opposed, arguing first that the Commission had literally sought to be 'enjoined' (i.e., barred) rather than 'joined', invoking Re Estate of Barasa Kanenje Manya, and second, that the Commission had not met the Supreme Court's threshold for joinder as an interested party, having not particularized any prejudice nor shown that its submissions would differ from those of the parties. The 66 Respondents, represented by counsel instructed by the National Legal Aid Service, did not oppose the application. The court framed two issues: the effect of the 'enjoinder' defect and whether the Commission should be joined. On the first, the court held the defective terminology curable under Article 159 of the Constitution, distinguishing Barasa Kanenje Manya. On the second, applying the two-test rule from Mumo Matemu, Muruatetu, Communications Commission, Meme and the Judicial Service Commission case (with an elevated threshold in criminal matters), the court found the Commission had not articulated the basis of its concerns, had not demonstrated the prejudice it would suffer, and would add nothing beyond what the Respondents' own counsel could present. The court also held it lacked jurisdiction to entertain the Commission's implicit constitutional challenge to Section 33 of the Prevention of Terrorism Act. The application was dismissed.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether, given that the Commission's application sought that it be 'enjoined' rather than 'joined' as an Interested Party, the application should stand dismissed or the Commission barred from participating in the proceedings
  2. 2.Whether the Commission should be joined to these proceedings as an Interested Party and allowed to participate in subsequent proceedings herein

Key legal issues

#
01

Whether the defective use of 'enjoined' instead of 'joined' rendered the application fatal

Holding

It did not; the irregularity is curable under Article 159 of the Constitution

Reasoning

The court noted that superior courts, including the Supreme Court in Communications Commission of Kenya and Mumo Matemu and the High Court in Meme, used 'joinder' and 'enjoinder' interchangeably without dismissing applications for defectiveness. The Commission's intent to participate as an Interested Party was clear from the application and submissions, so the word choice was not fatal.

p. 9
02

Whether the Commission met the two-test rule for joinder as an Interested Party

Holding

It did not; the application was dismissed

Reasoning

Applying Mumo Matemu, Muruatetu, Communications Commission and Meme, and the elevated threshold in criminal matters per Judicial Service Commission v Speaker of the National Assembly, the court found the Commission did not articulate the basis for its concerns over the Respondents' rights, did not show how its constitutional mandate would be impeded absent joinder, and its submissions would merely duplicate those of counsel (NLAS) already representing the Respondents. No specific prejudice was demonstrated.

p. 12
03

Whether the court could entertain the Commission's implicit challenge to Section 33 of the Prevention of Terrorism Act

Holding

No; the court lacked jurisdiction to determine constitutionality of a statute

Reasoning

The Commission, though not expressly, appeared to argue that detention without charge under Section 33 amounted to unconstitutional detention without trial. The court held that a magistrates' court has no jurisdiction to determine the constitutionality of statutory provisions and such matters belong to the High Court.

p. 12

Legal principles established

#
  • A party seeking to be joined as an Interested Party cannot do so as of right but must satisfy the court of its stake and relevance in the proceedings and of the prejudice it will suffer if joinder is refused
  • The threshold for admission of interested parties is elevated in criminal matters compared to civil matters
  • A magistrates' court lacks jurisdiction to determine the constitutionality of a statutory provision; such matters must be placed before the High Court
  • Use of 'enjoinder' instead of 'joinder' in an application is a curable irregularity under Article 159 of the Constitution

Court orders

#
  1. 1.The Commission's application dated October 18, 2023 for admission as an Interested Party is dismissed

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 3, 21(1) and (3), 22(1) and (2), 48, 49, 50(7) and 59(2)(e) of the Constitution of Kenya, 2010, and the Mutunga Rules (Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013)
Consolidated with
Misc. Criminal Application No. 156 of 2023

Relief refused

#

Joinder of the Commission as an Interested Party in Misc. Criminal Application No. 152 of 2023

The Commission failed to meet the two-test rule of stake/relevance and demonstrated prejudice; its submissions would replicate what the Respondents' counsel can present

p. 12

Directions on filing of pleadings, information and/or evidence to facilitate just disposition

Ancillary to and dependent on the prayer for joinder, which was declined

No order as to costs

Not granted as part of the disposition since the application was dismissed

Costs

No costs order recorded in the disposition

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the application by the Commission for admission to the status of Interested Party dated October 18, 2023 must fail as the threshold for such admission has not been met by the Commission. I proceed to dismiss it.
p. 12Final orders - dismissal of the joinder application
a party cannot just walk into a matter as an Interested Party as of right but must first satisfy the court that it has a stake and relevance in the particular proceedings
p. 11Threshold for joinder of interested parties
just as the standard of proof is elevated in criminal matters (beyond reasonable doubt), so should the threshold for admission of interested parties be in criminal matters as compared to civil matters
p. 11Elevated threshold in criminal proceedings (as quoted from Judicial Service Commission v Speaker of the National Assembly)
This court is not clothed with jurisdiction to determine the constitutionality or otherwise of a statutory provision. That is a matter that ought to be placed before the High Court.
p. 12Jurisdictional limitation of the magistrates' court
The irregularity of using the term enjoinder instead of joinder is therefore one that does nor render the application fatally defective. The same is curable under Article 159 of the Constitution.
p. 9Curable defect in the use of 'enjoinder'

Issues in the judgment

#
minor

The judgment cites Trusted Society of Human Rights Alliance v Mumo Matemu with inconsistent years (2015 in the grounds of opposition, 2014 in the submissions and analysis)

minor

The ruling as delivered does not reproduce a formal numbered order section beyond the single dismissal statement; costs were not expressly ordered

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Kenga & 41 others; Kenya National Commission on Human Rights (KNCHR) (Interested Party) (Miscellaneous Criminal Application E153 & E156 of 2023 (Consolidated)) [2023] KEMC 57 (KLR)", Case Analysis (2023). Shanzu Miscellaneous Criminal Application No. 152 of 2023 (as consolidated with Misc. Criminal Application No. 156 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/57/eng@2023-12-01

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