Ethics & Anti-corruption Commission v Benard Theuri & 5 others

c. Upon granting prayer (b) above, the court be pleased to direct the timelines within which the interested party shall file its statement of defence; 2. The application is supported by the grounds set out in the application, together with the supporting affidavit of Waithira Waiyaki, the interested party’s County Attorney, sworn on 3rd February 2026. A summary of the facts set out therein is that, by plaint dated 27th October 2025, the suit was filed against the 6 defendants for alleged irregularities in the procurement of an Enterprise Resource Planning System (ERP) within Kiambu County. The plaintiff joined the interested party in that capacity. 3. The interested party complained that the joinder was irregular, as it failed to comply with Rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules and the general rules on joinder of an interested party. The plaintiff failed to present a formal or written application and did not demonstrate the elements precedent for joinder of an interested party. The plaintiff lacked the discretion to join an interested party. In any event, the joinder failed to meet the substantive test set out in our jurisdiction. 4. The interested party further contends, as set out in its application dated 10th November 2025, that it would suffer the most if the procurement question were set aside by this court. This is because the order would directly affect its ability to discharge its constitutional functions, which rely exclusively on the ERP system. Additionally, it was the party that conducted the procurement process. Further, the 5th and 6th defendants, though its officials, did not represent the interested party. 5. The interested party thus prays that the application be allowed so that it may ventilate its grievances. Further, it was in the interests of justice, as the application was filed in time. 6. The plaintiff opposed the application, relying on the replying affidavit of Juliet Kavula, an investigator employed by the plaintiff, sworn on 5th March 2026. It opposed the application on the following grounds: the provisions of rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules do not apply to the present circumstances; the plaintiff had no substantive claim against the interested party, so joining it as a defendant would change the character of the suit; the suit was actually filed for the benefit of the interested party; the 5th and 6th defendants were sued as officials and representatives of the interested party; the joinder of the interested party was strictly intended to facilitate potential compliance with court orders; and finally, no reason had been advanced to justify the application, as the interested party would still have an opportunity to call evidence and witnesses. 7. The application was canvassed by way of written submissions. The interested party filed written submissions dated 9th March 2026. It submitted that the application was properly founded on the provisions of order 1, rule 10(2) of the Civil Procedure Rules and rule 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. Relying on decisions of the court, it argued that the threshold for joinder as an interested party was not met. It reiterated the contents of its application, praying that it be joined as a defendant rather than an interested party. 8. The plaintiff filed written submissions, together with a list and bundle of authorities, both dated 15th April 2026, and submitted that the joinder of the applicant as an interested party was regular and that the applicant should not be joined as a defendant in these proceedings. Several decisions were relied on, and the application was prayed to be dismissed with costs. Analysis And Determination 9. I have considered the application, the affidavit in support and opposition, the rival written submissions, and the law. The applicant seeks to change its position from that of an interested party to a defendant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6929/eng@2026-05-20 2

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The plaintiff sued the 6 defendants and, from the outset of the suit in 2025, joined the applicant as an interested party. However, the interested party’s application indicates that it prefers the capacity of a defendant and that its joinder lacked legal basis. 10. On whether the joinder was without foundation, the interested party complained that it was not made within the parameters set out in settled stare decisis in our jurisdiction. Firstly, if the interested party was dissatisfied with its joinder in that capacity, there are several avenues for lodging its complaint. In any event, if the court ultimately finds that it was misjoined, it would only disadvantage the plaintiff. Secondly, based on its arguments, the interested party was taking the plaintiff's position. The plaintiff has already explained that it joined the applicant as an interested party because it was in its best interests. At the end of the day, this is the plaintiff’s case. It cannot purport to take the place of the said party. 11. Further, nothing prevents the interested party from filing its own defence and supporting evidence. It has not been shown that it has been impeded by this court or by any other reason from substantially participating in the proceedings. Substantially and generally speaking, no reasons have been advanced by the interested party for being joined as a defendant in lieu of its current capacity. 12. Accordingly, the present application lacks merit. It is dismissed with costs to the plaintiff. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 20TH DAY OF MAY 2026. R.E. OUGO JUDGE In the presence of: Miss Cherono - For the Plaintiff Mr. Mwangi - For the 1st & 3rd Defendants Ms. F. Kinyua h/b For Mr. Mugunda for 2nd Defendant Mr. Terer h/b for B. Bundi for the 4th Defendant Miss Amutavi h/b Mr. Okatch for the 6th Defendant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6929/eng@2026-05-20 3

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