Limited & 12 others v Clive Mutiso & 1 other

THE INSEPCTOR GENERAL NATIONAL POLICE SERVICE……………………….…3RD RESPONDENT THE CABINET SECRETARY, MINISTRY OF ENERGY & PETROLEUM ……………4TH RESPONDENT THE OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTION…………………………….5TH RESPONDENT AND ENERGY & PETROLEUM REGULATORY AUTHORITY……………………..1STINTERESTED PARTY INDEPENDENT HAS DEALERS ASSOCIATION OF KENYA………………………2ND INTERESTED PARTY ENERGY DEALERS ASSOCIATION……………3RD INTERESTED PARTY COMPETITION AUTHOURITY……………...…4THINTERESTED PARTY RULING INTRODUCTION 1. This court is asked to determine the 4 th interested party’s application dated 5th December 2025. It is supported by an affidavit of David Kemei sworn on even date and is presented pursuant to Order 1 Rule 10(2) and order 51 of the Civil Procedure Rules, 2010 and sections 1A, 1B and 3A of the Civil Procedure Act. HCCHRPET/E 454/2025 Page 2 OF 16

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2. The application seeks for orders that: 1) The 4th interested party, the applicant herein, be struck out as a party improperly enjoined to the suit; 2) Costs of this application be provided for; and 3) This Honourable Court be pleased to issue any further/other order in the interest of justice. 3. The application is predicated upon the grounds that the 4 th interested party’s mandate as provided for under the Competition Act No. 12 of 2010 is to enforce the Competition Act, with the objective of enhancing public welfare by promoting and protecting effective competition in markets and protecting consumers from unfair and misleading market conduct. 4. It is argued that the petitioners have not demonstrated how the alleged actions of the 1st and 2nd respondents relate to the 4th interested party’s mandate. It is contended further that no constitutional violation has been demonstrated as having been committed by the 4th interested party. It is therefore not a necessary party to the proceedings, and no prejudice will be suffered if it is struck out from the proceedings. 5. The application was canvassed via written submissions. HCCHRPET/E 454/2025 Page 3 OF 16

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SUMMARY OF THE 4TH INTERESTED PARTY’S SUBMISSIONS 6. The 4th interested party filed two sets of submissions dated 28th May 2026 and 22nd July 2026. It reiterates its position regarding its mandate and the fact that the petitioners have not demonstrated how the alleged actions of the 1 st and 2nd respondents with the assistance of the 3rd respondent’s officers relate to their mandate. It further reiterates that apart from setting out its statutory mandate by citing sections 1, 3, 7 and 9 of the Competition Act, the petitioners have failed to demonstrate, through any pleaded facts, how it has violated the Constitution or acted outside its mandate. 7. It is submitted that whereas the petitioners make reference to a competition related issue in order to justify the 4 th interested party’s inclusion in the proceedings, namely, that the intended execution is unconscionable as its real aim is to frustrate and quash any form of competition to the 2nd respondent in Liquefied Petroleum Gas business to the detriment of consumers and the petitioners, the same is HCCHRPET/E 454/2025 Page 4 OF 16

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unsubstantial because it does not disclose any concrete constitutional violation by the 4th interested party. 8. It is thus submitted that the 4th interested party it is not a necessary interested party since it nether has identifiable stake nor legal interest or duty in the proceedings before the court as elaborated under Rule 2 of the Mutunga Rules. Further reliance is placed on the decisions in Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR); Karuri & another (Suing in the public interest, on their own behalf and on behalf of the 1500 residents of Tumu Tumu Mathingira in Masinga within the County of Machakos) v County Machakos County & 9 others; Commissioner, Kenya National Commission on Human Rights & 2 others (Interested Partis) [2023] KEELC 16788 (KLR) and Lomuro v Cooperative Bank of Kenya Limited; Central Bank of Kenya (Interested Party) [2024] KEHC 7180 (KLR) for the contention that it is improperly joined in the proceedings as it has no identifiable stake in the dispute, HCCHRPET/E 454/2025 Page 5 OF 16 no nexus

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between its statutory mandate and the issue in contention and no relief is sought against it and it will not be affected by any determination of this court. 9. It is urged that Rule 5 (d) (i) of the Mutunga Rules empowers this court to order that a party which is improperly joined to be struck out of the suit. Further reliance is placed on section 27 (1) of the Civil Procedure Act and the decision in Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) for the contention that the 4th interested party is entitled to costs of both the application and the petition. 10. It is urged that the issue that the 4th interested party’s role in the petroleum sector includes regulating practices that may harm competition and consumers, such as the abuse of a dominant position by the 2nd respondent, is raised for the first time in their written submissions and finds no basis in the pleadings. Further, these allegations do not disclose any act, omission or decision on the part of the 4 th interested party that would warrant its inclusion in these proceedings. 11. It is argued that if indeed there is a competition concern that arises from the conduct in question, the petitioners are by HCCHRPET/E 454/2025 Page 6 OF 16

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statute required to first exhaust the remedies available to it under the Competition Act (section 31 to 40) which they have not. It is also argued that joinder cannot be founded upon the possibility that a party may become relevant at a later stage of proceedings. SUMMARY OF THE PETITIONER’S SUBMISSIONS 12. The petitioner filed written submissions dated 15 th July 2025. The petitioners rely on Rule 5 of the Mutunga Rules and the decisions in Zephir Holdings Ltd v Mimosa Plantations Ltd, Jeremiah Matagaro and Ezekiel Misango Mutisya [2014] eKLR; Maboko Shiembekho Limited v Agricultural Development Corporation & 2 others [2023] KEELC 22446 Letshego (KLR) Kenya and Gladys Limited; Mueni Nduku Nthuki Charles v Maingi (intended plaintiff) [2022] KEHC 2227 (KLR) that speak to the issue of joinder of parties. 13. It is submitted that under section 9 of the Competition Act the 4th interested party is mandated to among others make representations to government, government commissions, HCCHRPET/E 454/2025 Page 7 OF 16

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regulatory authorities’ and other bodies on matters relating to competition and consumer welfare. 14. That to this extent, their petition outlines that the enforcement of the Petroleum (Liquefied Petroleum Gas) Regulations (2019) has been at the whims of the 1 st and 2nd respondents who have officers of the 3rd respondent at their disposal and subsequently proceed to institute malicious criminal proceedings by the respondent. 15. It is submitted that it therefore follows that: the purpose of constituting the police unit by the 2 nd and 3rd respondent is illegal as privatized enforcement operations should neither be nor conducted by any person other than the 1 st interested party; the intended mode of execution of the said operations is not only illegal but also unfair for lack of representation of other players in the Liquefied Petroleum Gas business; the intended execution is unconscionable as its real aim is to frustrate and quash any form of competition to the 2nd respondent in Liquefied Petroleum Gas business to the detriment of consumers and the petitioners. HCCHRPET/E 454/2025 Page 8 OF 16

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16. It is urged that the 4th interested party is a necessary party whose presence is necessary to enable the court effectively and completely adjudicate upon and settle all questions involved in the suit by dint of sections 1, 3, 7, 9 the Competition Act. At the centre of the dispute is a letter dated 10th March 2025 and 17th March 2025 communicating to the 2nd respondent with concern that some licensees have, on various occasions, attempted to take on roles beyond their mandate, effectively usurping the authority of the 1st interested party in matters relating to the enforcement of regulations, surveillance and monitoring of activities in the petroleum and gas industry. Such actions are not only contrary to the established legal framework but also undermine regulatory processes that ensure the safe, fair and efficient operation of the sector. 17. That as a result of the respondents’ actions, the petitioners experience unfair competition practise by the 1 st and 2nd respondents, who have weaponized the criminal justice system and purport to referee in a match in which they are players to HCCHRPET/E 454/2025 Page 9 OF 16

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the detriment of the petitioners and in total breach of the Energy Act and Fair Competition practices. 18. It is submitted that in the petroleum sector, the 4 th interested party’s focus is on regulating practices that can harm competition and ultimately consumers. This includes abuse of a dominant position, which occurs when the dominant players, the 2nd respondent, use their market power to exclude competitors or exploit consumers. 19. It is submitted that the contention that the petitioners have not demonstrated how the issues in contention relate to their mandate, can only be determined at the full hearing and determination of the petition with the 4 th interested party being part of the suit. It is thus urged that the 4 th interested party’s involvement in the petition is necessary in the effective and complete adjudication and settlement of all questions raised in the suit given their statutory obligation as stipulated in the Competition Act. ANALYSIS AND DETERMINATION:20. Having considered the application and the rival submissions, I discern that the sole issue for determination is HCCHRPET/E 454/2025 Page 10 OF 16

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whether the 4th Interested Party should be struck out from the proceedings herein and the related issue being whether the 4 th Interested Party is entitled to costs of this application and the Petition. 21. Rule 5 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 speaks to the issue of addition, joinder, substitution and striking out of parties. It provides as follows: 5. Addition, joinder, substitution and striking out of parties The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties— (a)Where the petitioner is in doubt as to the persons from whom redress should be sought, the petitioner may join two or more respondents in order that the question as to which of the respondent is liable, and to what HCCHRPET/E 454/2025 Page 11 OF 16

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extent, may be determined as between all parties. (b)A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute. (c)Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit. (d)The Court proceedings, HCCHRPET/E 454/2025 may either Page 12 OF 16 at any upon or stage of the without the

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application of either party, and on such terms as may appear just— (i)order that the name of any party improperly joined, be struck out; and (ii)that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter, be added. (e)Where a respondent is added or substituted, the petition shall unless the court otherwise directs, be amended in such a manner as may be necessary, petition and shall amended be copies served on of the the new respondent and, if the court thinks, fit on the original respondents. 22. In the case of Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR) the Supreme Court held that: - HCCHRPET/E 454/2025 Page 13 OF 16

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18.Consequently, an interested party is 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. 23. In the decision in Okoiti & 7 others v Kenyatta & 32 others [2026] KEHC 9075 (KLR) the court stated: The key tests for determining whether a party is necessary party were set out in Werrot & Company Ltd & Others v Andrew Douglas Gregory & Others, [1998] eKLR as follows: “i. there must be a right to some relief against such a party in respect of the matter involved in the proceeding in question and HCCHRPET/E 454/2025 Page 14 OF 16

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ii. it should not be possible to pass an effective decree in the absence of such a party.” In addition to the foregoing: “A party may be joined in a suit, not because there is a cause of action against it, but because that party’s presence is necessary in order for the court to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter...” Deported Asians Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55 (SCU), Meme v. Republic, [2004] 1 EA 124 and Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR Further insights in African Centre for Corrective and Preventive Action 31 others v Google Kenya Limited 4 others Ideate Tech Policy Africa Limited (Amicus Curiae) (Petition E068of2023) 2026 KEHC 7021 (KLR), that: - HCCHRPET/E 454/2025 Page 15 OF 16

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“The fact that no relief has been claimed against the petitioner does not entitle the petitioner to a discharge from the proceedings if his presence is necessary for the effectual determination of all the issues involved in the case. 24. In Lomuro v Co-operative Bank of Kenya Limited; Central Bank of Kenya (Interested Party) [2024] KEHC 7180 (KLR) the court held as follows: 29.The guiding principles to be considered when dealing with an application for joinder of an interested party to a suit on the other hand were articulated by the Supreme Court in the decision of Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others & Michael Wainaina Mwaura Curiae) [2017] eKLR with (as reference Amicus to Francis Karioki Muruatetu & Another v Republic & 5 others [2016] eKLR as follows: HCCHRPET/E 454/2025 Page 16 OF 16

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[30].In determining whether the interested party herein should proceedings, be this struck Court out shall from these consider the following elementsi. Whether the presence of the interested party in these proceedings will assist this court in the effective and effectual determination of all questions arising in this suit; ii. Whether the interested party herein has any identifiable stake, legal interest or duty in the proceedings; and iii. Whether the interested party herein is likely to suffer any prejudice by participating in these proceedings. 25. The continued participation of the 4th Interested Party in these proceedings hinges on the result of the three step inquiry as framed above. On the first question, whether the presence of the interested party in these proceedings will assist this court in the effective and effectual determination of all questions arising in this suit? The investigation is limited to the pleadings before Court as juxtaposed against the mandate of the 4th Interested party. HCCHRPET/E 454/2025 Page 17 OF 16

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26. The factual basis of the Petition is set out under paragraphs 45 to 66 of the Petition, the Petition is hinged on the challenge of an enforcement team established by the 1 st and 2nd respondent that is said to have been weaponised against other market players, including the Petitioners. 27. At paragraphs 67 to 73 of the Petition the Petitioners enumerate the constitutional violations suffered on account of the respondents. The reliefs sought are enumerated at paragraph 74 as followsa. A declaration be and hereby issue that the enforcement unit as created and operated by the 1 st, 2nd & 3rd Respondents is unconstitutional, null and void b. A permanent injunction against the 1st and 2nd Respondents either by themselves, anyone else acting at their behest, instructions or directions or any other person whosoever, from conducting inspections, arbitrary arrests, endless raids, illegal closure and confiscation of assortment of Gas cylinders. c. A permanent injunction against the 3rd respondent from acting on the behest and instructions of the 1 st and 2nd respondents in conducting inspections, arbitrary arrests, endless raids, illegal closure and HCCHRPET/E 454/2025 Page 18 OF 16

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confiscation of assortment of Gas cylinders from the Petitioners. d. A permanent injunction against the 5 th respondent from acting on the behest and instructions of the 1s, 2nd, & 3rd respondents by prosecuting criminal cases as a s result of the illegal inspection, closure and confiscation of assortment of Gas Cylinders carried out by the 1st and 2nd respondents against the Petitioners. e. An order of Mandamus directing the 4 th respondent to develop and publish a national policy on Petroleum operations within 120 days of the Court’s order. f. Costs of the Petition g. Any other appropriate relief the Court may deem just to grant 28. The issues for determination before the Court based on the pleadings are; first, whether the 1 st and 2nd respondent in establishing the enforcement mechanism are acting outside the law. Secondly whether the 3 rd and 5th Respondents have acted in contravention of their constitutional mandate. And finally, whether the 4th respondent’s inaction has occasioned a regulatory lacuna that calls for the Court’s intervention. 29. Juxtaposing this against the mandate of the 4 th interested party, the 1st issue is answered in the negative as the HCCHRPET/E 454/2025 Page 19 OF 16

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participation of the 4th interested party is not necessary for the Court to arrive at its determination. 30. On the second issue, Whether the interested party herein has any identifiable stake, legal interest or duty in the proceedings? It is submitted by the respondent that the actions of the 1st and 2nd respondent are aimed at suppressing competition and that therefore the 4 th interested Party ought to be an interested party. Upon careful consideration of the record, I find that while the 4th Interested Party possesses a general regulatory mandate under the Competition Act, the present dispute centers on the legality of enforcement mechanisms deployed by the 1st and 2nd Respondents and the corollary actions of the 3rd, 4th and 5th Respondents, and not on the technical regulation of market competition; accordingly, although the Authority may have a broad policy interest in fair market conduct, it does not meet the threshold of a necessary party since the Court’s declaratory orders, being issued in rem, will bind all persons and bodies irrespective of participation, and the effective HCCHRPET/E 454/2025 Page 20 OF 16

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adjudication of the constitutional questions raised does not depend on the joinder of the 4th Interested Party. 31. On the third issue, arising from the foregoing, I find that the 4th interested party will be prejudiced by the continued participation in these proceedings. The conclusion therefore is that the 4th Interested party is not a necessary party to these proceedings. 32. On costs, I have considered the decision in Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR) where the Supreme Court affirmed that the award of costs is an exercise of judicial discretion grounded in fairness and public interest, and is not a rote application of the success-based rule; and that in determining liability for costs, the Court must consider the broader justice of the matter, including whether the litigation served a legitimate public purpose, whether any party acted in good faith, and whether imposing costs would unduly burden or chill access to justice. 33. It is my finding that in this instance, given the public interest, it is an appropriate case to direct that each party meets its own costs. HCCHRPET/E 454/2025 Page 21 OF 16

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34. Accordingly, these are the orders that will issue, the application dated 5th December 2025 is allowed on the following termsa. The 4th Interested Party is struck out as a party to the suit. b. Each party will bear their own costs. DATED, SIGNED AND DELIVERED NAIROBI, this 30th JULY 2026. P. M. NYAUNDI JUDGE In the Presence of Fardosa Court Assistant Mango for Petitioners Brenda Terry for 4th Interested Party Noordian for 2nd Interested Party Mwati for 5th Respondent Theuri for 1st & 2nd Respondent for 2nd & 3rd Respondents Ms. Mwarao for 1st, 2nd & 5th Respondents HCCHRPET/E 454/2025 Page 22 OF 16 VIRTUALLY AT

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