Mulki Abdullah Adan v Independent Electoral and Boundaries Commission & 1 other

further the overriding objective of the Act. Therefore, pleadings should be brief and concise as provided for under Order 2 Rule 3(1) of the Civil Procedure Rules which states: “ Subject to the provisions of this rule and rules 6, 7 and 8, entry pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, but not evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits." 3. In the Nigerian case of Belgore v Ahmed (2013) 8 NWLR (Pt.1355) 60 cited in Kalinga v Independent Electoral and Boundaries Commission & 10 others (Election Petition Appeal E087 of 2023) [2023] KEHC 22171 (KLR) the court made the following observations which I find relevant and adopt herein with my emphasis added in underline: “ Pleadings in an action are the written statements of the parties wherein they set forth the summary of the material facts on which each relied in proof of his claim or his defence as the case may be, and by means of which real matters [in] controversy between the parties and to be adjudicated upon are clearly identified. Although only material facts are required to be pleaded and in a summary form, they must nevertheless be sufficiently specific and comprehensive to elicit the necessary answers from the opponent." 4. Pleadings that are argumentative and not brief, concise and specific will obfuscate the real issues to be adjudicated upon. 5. The application is opposed by the Petitioner through a replying affidavit sworn on 30/9/2024 by Mulki Abdulahi Adan and the 1st respondent, IEBC through Grounds of Opposition (GOO) dated 6/11/2024. The 2nd respondent, the Speaker of the County Assembly of Kwale, has not filed a response to the application. 6. The application was canvassed by way of written submissions filed by the Intended Interested Party and the Petitioner only. 7. The court directed that only the first issue of joinder will be considered at this stage while the issue of setting aside or discharging the conservatory orders of injunction will be considered afterwards. 8. I have considered the application and the responses thereto together with the submissions made by learned counsels and the authorities cited. The issue for determination is whether the applicant has satisfied the requirements for joinder as an interested party in this case. 9. The application is brought under Article 48 of the Constitution of Kenya, Sections 1A, 1B and 3A of the Civil Procedure Act, (Cap 21) Laws of Kenya, Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, Order 1 Rule 10, Order 12 Rule 7 and Orders 51 Rules 15 of the Civil Procedure Rules, 2010. 10. The petition arises out of an election petition in which this court on appeal, in a decision delivered on 14/9/2023 nullified the nomination of five members of the County Assembly of Kwale, among them the petitioner herein. Appeals by the petitioner to the Court of Appeal and the Supreme Court were not successful. She thus filed the constitutional petition herein alleging breaches of her fundamental rights. Alongside the petition she filed an application dated 8/7/2024 with prayers for an interim conservatory order of injunction restraining her de-gazettement as the duly nominated member of the County Assembly of Kwale by United Democratic Movement (UDM) and the 2nd respondent from swearing any new nominated member by UDM. Interim conservatory orders of injunction were granted on 16/9/2024 in the terms sought meaning that implementation of the judgment of this court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19678/eng@2025-02-28 2

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dated 14/9/2023 was halted and the petitioner herein continued and continues to serve as an elected nominated member of the County Assembly of Kwale. 11. The applicant stakes her case to be joined as an interested party in the petition, on grounds that she was the petitioner in the election petition in Kwale Chief Magistrates Election Petition No. E002 of 2022 and then the appellant before the High Court court which eventually led to the nullification of the nominations on appeal at the High court, that she is one of the persons listed in the qualifying lists provided by political parties in the proportion of votes garnered by prioritizing the marginalized as provided in section 36 of the Elections Act and therefore has a direct interest in the outcome of the petition herein as this court's judgment has never been given effect and the petitioner among other persons who by now ought to have vacated office and given way to the new nominees, who the applicant feels she is one, as per the High Court judgment. The outcome of the petition herein will therefore greatly and directly affect her she says. 12. In opposing the application, the petitioner deposes that the applicant herein is not a member of UDM, is not from a minority group, and is not claiming nomination by the UDM. For those reasons, any decision made by this court will not affect the applicant's rights in any way. In any case, her complaint is about breach of her fundamental rights. 13. The 1st respondent, IEBC, on its part avers that the application by the respondent does not meet the threshold set for joinder as an interested party. It terms the applicant's alleged interest in this matter as speculative, far-fetched and overly ambitious and akin to pre-determining the outcome of the election by nomination to be conducted by the 1st respondent following the decision of this court, hoping that she will be nominated by the 1st respondent. 14. IEBC avers that the applicant belongs to the Pamoja African Alliance Party (PAA) and was never elected to the County Assembly of Kwale. The petitioner on the other hand belongs to the United Democratic Movement (UDM). If IEBC is to conduct election by nomination of Member of Kwale County Assembly following the High Court judgment in the election petition, PAA has one remaining slot, which the applicant hopes to scoop. For the petitioner, in case the petition herein is successful and she retains her seat, the applicant's perceived right will not have been breached in any way as a member of the PAA party. In any case therefore the applicant's perceived right of nomination under PAA party is not affected in any way. That the applicant therefore has no stake in the outcome of the petition herein and therefore her position as an interested party is not tenable. That she is not competent to raise the issues which can only be raised by the UDM party or a registered member thereof. Her grievances are personal, separate and distinct from those raised by the petitioner in the constitutional petition herein. And she should ventilate them through a different cause of action. That however, IEBC is not properly constituted to conduct the election by nomination as directed by the High Court and the applicant is riding on hope that she will be elected by nomination by IEBC which fact has no bearing on the petition herein. 15. However, I have noted in the judgment of the court delivered on 14/9/2023 the court directed in its final determination in paragraph 194(f) as follows: “ I further direct that in filling the gender top up and in appointing people with disability, and the youth the determination already made as to party entitlements is be maintained, save that shall a party entitled to have a person with disability, does not have in its list a person with disability, then such a party shall forgo that seat and it be given to the next qualifying party with one elected member as per the formula already adopted by IEBC.(Emphasis mine) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19678/eng@2025-02-28 3

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16. This means that even as a member of PAA party, the applicant can stake her hopes on that, even if not her party but another one foregoes its entitlement, she may just be the lucky one to be nominated as such. Her hopes are not so remote when you consider the import of the court's judgment. 17. IEBC further avers that the fact that the applicant has participated in other cases before does not give her the right to be joined as an interested party herein. Analysis and determination 18. The position of an interested party in civil proceedings in Kenya is provided for under Order 1 Rule 10 (2) of the Civil Procedure Rules that state; 2) 19. 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. Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 defines an 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.' 20. The same rules further provide that in relation to the participation of an interested party in proceedings that: 7 21. (1) A person, with leave of the Court, may make an oral or written application to be joined as an interested party. (2) A court may on its own motion join any interested party to the proceedings before it. The Supreme Court in the case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR defined an interested party as: “ ...one who has a stake in the proceedings, though he or she was not party to the cause ab initio. He or she is one who will be affected by the decision of the Court when it is made, either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her cause..." 22. In the case of Meme v. Republic, [2004] 1 EA 124, the High Court observed that a party could be enjoined in a matter for the reasons that: i. "joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings; ii. joinder to provide protection for the rights of a party who would otherwise be adversely affected in law; iii. joinder to prevent a likely course of proliferated litigation." https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19678/eng@2025-02-28 4

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23. Learned counsel for the applicant submits that the applicant has satisfied the requirements for joinder as an interested party in these proceedings. 24. Learned counsel for the petitioner submits that the applicant has not been mentioned anywhere in the petition as having violated the petitioner's fundamental rights and therefore her joinder in the proceedings herein will not serve any purpose but to delay the proceedings. 25. Learned counsel for the petitioner has placed reliance on the on the case of Francis Karioki Muruatetu & another v Republic & 5 others, Sup Ct Pet 15 & 16 of 2015 (consolidated); [2016] eKLR, where the Supreme Court of Kenya outlined the requisite elements to being joined as an interested party to a suit when it held thus; “ From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements: 26. 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." The petitioner also relied on the ruling by Mativo J. in Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others [2017] eKLR where it was held that; “ The test is not whether the joinder of the person proposed to be added as an interested party would be according to or against the wishes of the petitioner or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the petitioner. It is whether the intended interested party has an identifiable stake, or a legal interest or duty in the proceedings. In determining whether or not an applicant has a legal interest in the subject matter of an action sufficient to entitle him to be joined as an interested party the true test lies not so much in an analysis of what are the constituents of the applicant's rights, but rather in what would be the result on the subject-matter of the action if those rights could be established. It is a mandate of the court that as far as possible all matters in controversy between the parties should be completely and finally determined and all multiplicities of legal proceedings concerning any of the matters be avoided. In this regard, it would be appropriate and in the interest of justice that all matters touching and concerning the subject matter of the suit in the case at hand be determined finally and completely to avoid litigating over the same matters again." 27. So that not every applicant will be joined to proceedings, the applicant must demonstrate that he or she is a necessary party to the proceedings so as to enable the court to exercise its discretion to join him or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19678/eng@2025-02-28 5

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her. In considering some of the factors to be considered by a court in reaching its discretion to confirm joinder, the court stated in Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] KEELC 624 (KLR) that: “ In my view, for one to convince the court that he/she needs to be enjoined to the suit as interested party, such person must demonstrate that it is necessary that he/she be enjoined in the suit, so that the court may settle all questions involved in the matter. It is not enough for one to merely show that he/she has a cursory interest in the subject matter of litigation. Litigation invariably affects many people. A judgment or order in most cases does not only affect the litigants in the matter. It does have ramifications for others as well and one may very well argue that these others have an interest in the litigation. That is a fair argument, but a mere interest, without a demonstration that the presence of such party will assist in the settlement of the questions involved in the suit, is not enough to entitle one be enjoined in a suit as interested party. In other words, there needs to be a demonstration that the interest of the person goes further than "merely being affected" by the judgment or order. It must be shown that the presence of that person is necessary, so that the issues in the suit may be settled, and that if the person is not enjoined, the court may not be fully equipped to settle the questions in the suit or may be handicapped in one way or another. A joinder may also be allowed if the intended interested party has a claim of his own, which in the circumstances of the matter, needs to be tried, or is convenient to be tried alongside the claims of the incumbent plaintiff and defendant..." 28. I am well guided by these decisions on what this court needs to consider in determining whether or not to admit the applicant in these proceedings as an interested party. 29. In this case, the applicant is not merely being affected by the outcome of the petition, she hopes to be nominated by the IEBC to the County Assembly of Kwale. If the petitioner succeeds in the petitioner herein, it means her hopes are deemed. That is a substantial stake. From her averments and submissions, she wishes to assist the court to determine whether or not the petitioner's fundamental rights have been infringed or not arising from the judgment nullifying her nomination in the election petition of which the applicant was the petitioner. 30. I appreciate the petitioner and IEBC's discomfort in not wanting the applicant to be joined as an interested party herein. She was the initiator of the very proceedings that declared what IEBC had done with respect to the nomination of the elected members of the County Assembly of Kwale as irregular. That was an indictment upon the IEBC and it rendered the petitioner ineligible to vie for the same seat again. They would therefore find her joining these proceedings as disruptive. 31. However, that is not the case. Her joining the proceedings herein does not mean that she will take over and run away with the petition. The issues before court will remain only as framed from the controversy between the principal parties, the petitioner and the respondents. This is apparent from the principles laid down by the Supreme Court in the case of Methodist Church in Kenya v Fugicha & 3 others [2019] KESC 59 (KLR) thus: “ We did remark, in Francis Karioko Muruatetu & another v Republic & 5 others, Sup Ct Pet 15 & 16 of 2015 (consolidated); [2016] eKLR, as follows (paragraphs 41, 42): "Having carefully considered all arguments, we are of the opinion that any party seeking to join proceedings in any capacity, must come to terms with the fact that the overriding interest or stake in any matter is that of the primary/principal parties' before the court. The determination of any matter will always have a direct effect on the primary/principal parties. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19678/eng@2025-02-28 6

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Third parties admitted as interested parties may only be remotely or indirectly affected, but the primary impact is on the parties that first moved the court. This is true, more so, in proceedings that were not commenced as Public Interest Litigation (PIL), like the proceedings now before us. Therefore, in every case, whether some parties are enjoined as interested parties or not, the issues to be determined by the court will always remain the issues as presented by the principal parties, or as framed by the court from the pleadings and submissions of the principal parties. An interested party may not frame its own fresh issues or introduce new issues for determination by the court. One of the principles for admission of an interested party is that such a party must demonstrate that he/she has a stake in the matter before the court. That stake cannot take the form of an altogether a new issue to be introduced before the court" [emphasis supplied]. In like terms we thus observed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others, Civil Appeal No 290 of 2012 (paragraph 24): “ A suit in court is a 'solemn' process, 'owned' solely by the parties. This is the reason why there are laws and Rules, under the Civil Procedure Code, regarding Parties to suits, and on who can be a party to a suit. A suit can be struck out if a wrong party is enjoined in it. Consequently, where a person not initially a party to a suit is enjoined as an interested party, this new party cannot be heard to seek to strike out the suit, on the grounds of defective pleadings." 32. The interested party's role is therefore clear, her participation in the petition should assist the court in effectively and efficiently determining the issues raised in the petition. Should the interested party's participation be seen to be an impediment to the hearing and determination of the petition, the court has powers under Order 1 Rule 10(2) of the CPR to strike out the name of the interested party and stop her from participating in the petition. 33. For me, the IP's very basis of being the foundation of the present proceedings through the election petition filed at the magistrate's court gives her the locus to follow up and see the logical conclusion of the same. She ostensibly obtained orders to remove the petitioner from sitting as an elected nominated member of the County Assembly of Kwale. The petitioner is now before this court asking it for orders effectively to set aside this court's orders above. The applicant has an interest to be nominated as a member of the Kwale County Assembly following this court's decision. I am satisfied that the applicant has an interest in the reliefs sought by the petitioner. Clearly, the applicant has an identifiable stake in the petition herein. She will definitely suffer great prejudice in the event that the orders sought by the petitioner are granted without her participation in the proceedings. 34. Joinder of an interested party to proceedings is at the discretion of the court. I am satisfied that the applicant herein has satisfied the requirements for joinder as an interested party. I therefore find merit in the application and grant the applicant's prayer to join the proceedings herein as an interested party. 35. Costs shall be in the cause. ANDAYI W. F. JUDGE In the presence of: Omwenga for Petitioner/Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19678/eng@2025-02-28 7

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Deche for the Intended Interested Party/Applicant. N/A for 1st and 2nd Respondents. Johnson: Court Assistant. Signed by/for: HON. JUSTICE ANDAYI W.F. THE JUDICIARY OF KENYA. KWALE HIGH COURT DATE: 2025-02-28 17:44:52 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19678/eng@2025-02-28 8

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