Stephen Mwangi Kimani v Law Society of Kenya & 1 other

3. In opposing the Application, the 1st Defendant/Respondent filed Replying Affidavit sworn by Florence Muturi, the CEO of the 1st Defendant/Respondent, on 23rd June 2025. The 1st Respondent has stated that the Applicant has failed to disclose that the persons named on the Facebook page were lawfully summoned by the police and one by the name Daniel Wanyoike refused to honour the Summons; that the Applicant will not suffer any damage by the outcome of the suit and that the application should be dismissed with costs. 4. The 2nd Defendant/Respondent filed a Replying Affidavit sworn on 23rd June 2025 in opposition to the application. He has termed the application as defective and a gross abuse of the court process; that the Applicant has misled this court in claiming that the 2nd Respondent is the administrator in Kwambira/ Kamithiru Facebook page which is false; that the application was filed late and has no merit and ought to be dismissed with costs. 5. The application was argued orally on 24th June 2025. 6. The Applicant argued that he learned from friends who had seen social media postings by the 1st and 2nd Defendants/Respondents that he had gone into hiding after being summoned by the 1st Defendant/ Respondent and the police which information is not true; that he works as a Court Process Server and his job cannot allow him to go into hiding; that he is an elder in his community and that the postings have tarnished his name. He argued that he was waiting for the court to determine the issue of jurisdiction first before he could apply to be enjoined in these proceedings. 7. He claimed that people are shunning him because of those postings and that this has affected his work. He urged that this court allows his application so that he can pursue his claim. 8. The Plaintiff argued that the Applicant was late in bringing this application; that it is the Plaintiff who was adversely affected by the postings and not the Applicant and that this court should allow the case to proceed without further delay. 9. The Defendants/Respondents, through their counsel Mr. Nderi, argued that the application fails to meet the legal threshold under Order 1 Rule 10(2) of the Civil Procedure Rules and therefore the application has no merit; that the Applicant must demonstrate that he is a necessary party without whose presence the court cannot effectively adjudicate the matter and that the Applicant has failed to demonstrate a clear and identifiable interest in the case or potential prejudice from non-joinder. The Respondents relied on Joseph Njau Kong’ori v Robert Maina Chege & 3 others [2002] eKLR on the guiding principles for joinder of parties. 10. The Defendants/Respondents argued, further, that the Applicant has failed to demonstrate capacity and direct involvement in the subject matter; that allowing a joinder at this stage will unduly delay the proceedings and prejudice the Respondents who have filed responses and taken steps to have the matter heard. They argued that the application is abuse of court process intended to derail the proceedings; that the Applicant has not filed any documents in court to confirm that he is Daniel Wanyoike given that the name used in the Facebook is Daniel Wanyoike with no identification or photo attached and that the addition of a new party will add an undue burden in costs and complicity in managing the case. 11. The Defendants/Respondents urged that the application be dismissed with costs. 12. In his rejoinder, the Applicant stated that the Plaintiff’s worry is that the application will delay the case; that his name has been mentioned directly and that he has specifically stated the reliefs he is seeking and therefore it cannot be said that he does not have any rights to be determined. He has argued that the Respondents have not stated in their Replying Affidavit that he is not the person mentioned to enable him to respond; that his surname is Daniel Wanyoike and that is the name he is known by. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16527/eng@2025-10-15 2

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Analysis and determination 13. I have read and analyzed the Application, the Replying Affidavits and the Submissions of the parties. Order 1 Rule 10 (2) of the Civil Procedure Rules provides that: The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added. 14. I have noted that the post that is claimed to have defamed the Applicant is dated 14th February 2025. It is attached to the Supporting Affidavit sworn by the Applicant. I have read the post. It refers to two individuals identified as Stephen Mwangi whose photograph appears on that post. The second person named in that post is Daniel Wanyoike whose photograph is not shown. Stephen Mwangi is said to have responded to the 1st Defendants/Respondents summons but not Daniel Wanyoike. 15. To join a party to proceedings or not is discretionary. That discretion must be exercised fairly for ends of justice to be met. The principles to guide the court in exercised its discretionary powers are stated in Joseph Njau Kong’ori v Robert Maina Chege & 3 others, cited by the Defendants/Respondents as follows: i. That the party seeking to be joined to the proceedings must be a necessary party. ii. He must be a proper party. iii. In the case of a defendant there must be a relief flowing from the defendant to the plaintiff. iv. The ultimate order or decree cannot be enforced without his presence in the matter. v. His presence is necessary to enable the Court to effectively and completely to adjudicate upon and settle all questions involved in the suit. 16. The Applicant bears the onus of demonstrating that he meets the above criteria. My careful analysis of this matter and the reasons advanced by the Applicant as to why he seeks to be enjoined leads me to the conclusion that the Applicant has not satisfied this court that he is a necessary party to theses proceedings; that the ultimate order or decree cannot be enforced without his presence and that his presence is necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. The Applicant will not be prejudiced by this finding for reasons that there is no bar against his institution a suit against the Defendants/Respondents should he feel aggrieved by their actions. 17. It is my finding, and I so hold, that the Applicant has not met the legal threshold for joinder of parties. Consequently, the Notice of Motion dated 16th June 2025 is hereby dismissed. Each party shall bear own costs of that application. 18. Orders shall issue accordingly. DATED, SIGNED AND DELIVERED THIS 15TH OCTOBER 2025. S. N. MUTUKU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16527/eng@2025-10-15 3

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