Cleophas Shimanyula Alias Toto v Dr. Bonny Khalwale

6. In his defence to the defamation claim, the applicant takes the position that his public commentary was justified and made in the public interest. He asserts that the truth of what transpired regarding the death of his cousin is a complete defence to the defamation claim. 7. It is in this context that he brings the instant application, seeking the following prayers: a. Leave to join the Officer Commanding Station, Malinya Police Station, and the Directorate of Criminal Investigations, Kakamega South, as interested parties to the suit. b. An order compelling the respondent to produce the bull, Inasio, for safe custody at Malinya Police Station pending the hearing of the main suit. c. An order compelling the respondent to produce the clothing and garments worn by the deceased at the time of the alleged attack and at the time of death. d. An order compelling the DCI Kakamega South and OCS Malinya to produce a comprehensive report, including photographic evidence, covering the scene of the alleged incident from the time of the attack to when the body was collected. 8. The application is supported by the applicant’s sworn affidavit and further submissions which argue that the intended interested parties hold vital evidence, that the preservation of the bull and the deceased’s clothing is crucial to ascertaining the truth, and that failure to grant the orders will compromise, prejudice, and extinguish his defence. 9. The respondent opposes the application through a replying affidavit sworn on 30th April 2024. The respondent raises preliminary objections on the grounds of jurisdiction and irrelevance of the evidence sought to the civil defamation suit. He asserts that the applicant’s relationship to the deceased is inconsistent, that he maintains cordial relations with the deceased’s immediate family, and that the applicant’s defamatory statements are clear from the record. 10. Crucially, the respondent annexes electronic evidence, a YouTube video link, which he states confirms that the bull Inasio has already been slaughtered and is therefore non-existent. 11. Having carefully considered the application, the supporting and replying affidavits, written submissions and all annexed documents, the following are the key issues for determination: a. Whether the proposed 1st and 2nd interested parties should be enjoined in these proceedings. b. Whether the respondent can be compelled to produce the bull “Inasio”. c. Whether the court can compel the DCI and OCS to produce an inventory of their investigation. d. Whether the application has merit. Analysis 12. The procedural law on joinder of interested parties in matters fiows from the provisions of Order 1 rule 10(2) of the Civil Procedure Rules, 2010 as amended in 2020, as read with related provisions enacted subsequent thereto. “ 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, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19628/eng@2025-12-18 2

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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.” 13. Black’s Law Dictionary 9th edition at page 1232 defines an interested party as; “ a party who has a recognizable stake (and therefore standing) in a matter.” 14. In the case of Otieno & another v County Government of Homabay & 2 others; Ogutu & another (Interested Parties); Aroka & 6 others [2025] KEELC 78 (KLR), the court in determining who an interested party is, held that: “ In Rule 2 of the Rules, it defines interested party as “ …a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation.” The procedure on how that is to be done is provided for in Rule 7. Under Sub-rule 1 of Rule 7 it is provided that “ A person, with leave of the Court, may make an oral or written application to be joined as an interested party.” In that respect it means a person desirous of being joined as an interested party has to move the court. If he chooses to do so, he ought to seek leave of the Court first and once granted it, he will be enjoined. While this is what the Applicants have done in the instant case, they already ‘brought’ themselves into the matter in two ways as stated in paragraph 2 above: they jumped the gun. One wonders why they made the application if it would be true that they be referred to as interested parties at this stage.” 15. 16. The Supreme Court set out guidance on the requirements for successful application for joinder as an Interested Party. This was in the case of Francis Karioki Muruatetu & Another v Republic & 5 Others, Petition 15 as consolidated with 16 of 2013 [2016] eKLR. In it, the apex court gave three principles to be followed. At paragraph 37 the court state that the applicants must show: “ (i) The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral (ii) The prejudice to be suffered by the intended interested party in case of nonjoinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote (iii) Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.” Applying this test to the current matter, I find that the applicant has not satisfied the threshold for joinder. The proposed parties are the OCS Malinya and DCI Kakamega South, being state investigative agencies. The matter before this Court is a civil dispute between two private individuals concerning https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19628/eng@2025-12-18 3

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alleged defamatory statements. It is not a criminal inquest or prosecution into the death of Kizito Moi Amukune. 17. The applicant’s contention that these agencies are custodians of evidence does not grant them a personal and proximate interest in the outcome of this defamation suit. Their constitutional and statutory mandate is to investigate crimes on behalf of the State, not to participate as parties in private civil litigation to aid one side’s defence. Their interest, if any, is indirect and administrative, falling squarely within the realm of what the case of Francis Karioki Muruatetu & Another v Republic described as peripheral. “ The interest must be clearly identi able and must be proximate enough, to stand apart from anything that is merely peripheral.” 18. Furthermore, the applicant has not demonstrated any legal prejudice the proposed parties would suffer if not joined. The prejudice alleged is entirely that of the applicant, who fears his defence will be compromised without the evidence. This does not equate to prejudice to the police or DCI. The applicant retains other legal avenues to seek production of evidence, such as subpoenaing investigating officers as witnesses at the trial, should it be necessary and relevant. 19. Consequently, the prayer for joinder of the OCS Malinya and DCI Kakamega South as interested parties is without merit and is hereby disallowed. 20. The applicant’s second prayer seeks an order to preserve the bull, Inasio, by having it produced for safe custody. The respondent has opposed this prayer and provided a YouTube video link as annexure evidence. The content of this link, which the court has taken judicial notice of, clearly shows the bull being slaughtered. The respondent has also deposed that this act was in accordance with Luhya tradition following such an incident. 21. A court of law cannot issue orders in vain or compel a party to perform an impossibility. The evidence before me conclusively demonstrates that the subject matter of this prayer, the bull Inasio, is deceased and no longer exists in a form that can be produced or preserved for evidentiary analysis. 22. For this reason, the prayer for the production and preservation of the bull is disallowed. 23. On whether the court can compel the DCI and OCS to produce an investigative report. The applicant’s final substantive prayer seeks to compel the DCI and OCS to produce their comprehensive report and photographic evidence from the scene. He relies on Article 50 of the Constitution on the right to a fair hearing and Section 173 of the Evidence Act, which grants the court wide discretion to ask questions and order production of documents to obtain proper evidence. Section 173 of the Evidence Act dictates: “ 1. A Judge or Magistrate may, in order to discover or to obtain proper evidence, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact whether or not it is otherwise admissible; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to object to any such question or order, nor, without leave of the court, to cross-examine the witness upon any answer given in reply to any such question: Provided that judgment shall be based only upon facts which are otherwise admissible and which have been duly proved. 2. Subsection (1) of this section shall not authorize a Judge or Magistrate: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19628/eng@2025-12-18 4

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(a) to compel a witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under the provisions of Part II of this Chapter, if the question were asked or the document was called for by the adverse party; nor” 24. While the court’s powers under Section 173 of the Evidence Act are indeed broad, they are not unbridled. This power is typically invoked during the live examination of witnesses in a trial, where the court actively seeks clarity or elicits evidence crucial for a just determination. It is not a tool for pre-trial discovery against non-parties, especially State agencies conducting independent investigations. 25. The independence of constitutional bodies, including investigative agencies, is a cornerstone of our governance. For this court to issue a mandatory order directing the DCI on how to conduct its investigation, what to include in its report, and when to produce it, would constitute a grave infringement on that operational independence. The court must be hesitant to venture into the executive domain of criminal investigation, particularly where, as here, the primary matter is a civil suit. 26. The applicant’s need to prove his defence does not override the constitutional imperative of separated institutional functions. The burden of proof in the defamation suit remains on the respective parties. If the applicant believes the police hold relevant evidence, the appropriate procedural step is to seek a witness summons at the trial stage, not a pre-emptive order compelling reportage. 27. Therefore, the prayer to compel the DCI Kakamega South and OCS Malinya to produce an Investigative Report is disallowed. Conclusion 28. Having disallowed all the substantive prayers sought, the inevitable conclusion is that the application dated 11th April 2024 lacks merit. The joinder of State agencies is unnecessary for the adjudication of a private defamation claim. The bull no longer exists, making its preservation impossible. The court cannot mandate independent investigators to produce reports in an ongoing matter outside of the established trial process. 29. The applicant’s anxieties about preserving his defence are noted. However, the remedies he seeks are procedurally misdirected and factually untenable. His right to a fair trial under Article 50 remains intact and can be adequately protected through the normal evidentiary processes during the hearing of the main suit, including calling relevant witnesses and tendering documents legally obtained. Orders 30. In the final analysis and for the foregoing reasons, I make the following orders: a. The Notice of Motion application dated 11th April 2024 is hereby dismissed in its entirety. b. The costs of this application shall abide the outcome of the main suit. c. It is so ordered. 31. Right of Appeal within 30 days explained. 32. Mention date is 17th June 2026 for direction of the main suit. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 18TH DAY OF DECEMBER, 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19628/eng@2025-12-18 5

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S.MBUNGI JUDGE In the presence of:CA: Angong’a https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19628/eng@2025-12-18 6

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