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)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the Commission should be joined to these proceedings as an Interested Party and allowed to participate in subsequent proceedings herein
Key legal issues
#Whether the defective use of 'enjoined' instead of 'joined' rendered the application fatal
It did not; the irregularity is curable under Article 159 of the Constitution
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.
Whether the Commission met the two-test rule for joinder as an Interested Party
It did not; the application was dismissed
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.
Whether the court could entertain the Commission's implicit challenge to Section 33 of the Prevention of Terrorism Act
No; the court lacked jurisdiction to determine constitutionality of a statute
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.
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.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.
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
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.
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
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
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.
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.
Issues in the judgment
#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)
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.