Mwilu v Judicial Service Commission & 2 others; Director of Public Prosecutions & another (Intended Respondent) (Petition 245 of 2020) [2020] KEHC 2745 (KLR) (Constitutional and Human Rights) (7 October 2020) (Ruling)
Philomena Mbete Mwilu v Judicial Service Commission & 2 others; Director of Public Prosecutions & 4 others [2020] eKLR
Neutral citation:
[2020] KEHC 2745 (KLR)
Republic of Kenya
Petition 245 of 2020
WK Korir, J
October 7, 2020
Between
Honourable Lady Justice Philomena Mbete Mwilu
Petitioner
and
Judicial Service Commission
1st Respondent
Justice Paul Kihara Kariuki
2nd Respondent
Macharia Njeru
3rd Respondent
and
Director Of Public Prosecutions
Intended Respondent
Director Of Criminal Investigations
Intended Respondent
Ruling
1.This ruling is in respect of two applications. The 1st application is dated 28th August, 2020 and is brought under Articles 2, 47, 48, 50, 157, 159 and 259 of the Constitution; Section 3A of the Civil Procedure Act; Order 51 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules; Rules 5(d)(ii) and 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; and all other enabling provisions of the law. Through the application the Applicant/4th Intended Respondent, the Director of Public Prosecutions (DPP), seek orders as follows:(i)That this Honourable Court be pleased to admit and certify this matter as extremely urgent and set it down for hearing ex-parte on a priority basis at the first instance during the vacation.(ii)That this Honourable Court, pending the hearing inter-partes of this application, be pleased to set aside/vary or discharge its orders granted on 17th August 2020 until this application is heard and determined.(iii)That the Honourable Court, be pleased to order that the Applicant be enjoined in these proceedings as a Petitioner/Respondent to the main petition and any other accompanying application by the Respondent/Petitioner.(iv)That the Honourable Court be pleased to vacate the orders of 17th August 2020 upon hearing this application inter-partes.(v)That this Honourable Court be pleased to make any other order that it may deem fit and just to grant.
2.The application is supported by the grounds on its face and the affidavit sworn on the date of application by Dorcas Oduor, the Secretary to Public Prosecutions.
3.The second application is that of the Director of Criminal Investigations (DCI) brought under Articles 2, 47, 48, 50, 159 and 259 of the Constitution; sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 1 rules 8 and 10(2) and Order 51 of the Civil Procedure Rules; and all other enabling provisions of the law and the inherent power of the court. The Applicant through the application dated 27th August, 2019 seek orders as follows:(i)That the Applicant/Intended 5th Respondent be joined as a party and as the 5th Respondent to this suit;(ii)That the costs of this application be provided for.
4.The application is supported by the grounds on its face and an affidavit sworn on 28th August, 2020 by Abdallah Komesha Mwatsefu, a Commissioner of Police attached to the Directorate of Criminal Investigations.
5.The 1st Respondent, the Judicial Service Commission (JSC), filed grounds dated 7th September, 2020 in support of the 4th and 5th intended respondents’ applications for joinder.
6.The Petitioner, Hon. Lady Justice Philomena Mbete Mwilu, opposed the applications for joinder through a replying affidavit sworn on 7th September, 2020.
7.The ruling only addresses the applications for joinder. No arguments were advanced in respect of the other prayers in the application of the DPP as it was agreed that those prayers will be addressed later, if need be.
8.A perusal of the pleadings and submissions by the DPP discloses that he seeks joinder on the grounds that he is a necessary party and has sufficient interest in the suit touching on his constitutional obligations. He additionally asserts that the issues arising in the suit cannot be effectively and completely settled unless he is enjoined as a party. It is averred that the DPP is the petitioner in Petition No. 86 of 2019 before the Judicial Service Commission (JSC) which seeks the removal of the Petitioner herein as a Judge and he is thus a necessary party to this petition which seeks to stop the proceedings before the JSC.
9.The DPP’s averment is that he seeks to be enjoined as a Respondent in this case in order to canvass his case. He accuses the Petitioner of mischief in failing to join him as a party to the proceedings at the time of instituting this petition.
10.The DPP asserts that failure to enjoin him in these proceedings will deprive the Court of the opportunity to hear his position on the matters raised in the petition. Further, that failure to enjoin him in the petition was calculated to ensure that this Court does not get a global view of the issues raised in the matter. The DPP relies on the decision in the case of Lucy Nungari Ngigi & 128 others v National Bank of Kenya Limited & another (2015) eKLR in support of his application for joinder.
11.In support of his application for joinder, the DCI discloses that he is the 2nd petitioner in JSC Petition No. 86 of 2019 the Director of Public Prosecutions & the Director of Criminal Investigations v the Honourable Philomena Mbete Mwilu. It is the DCI’s case that although the Petitioner has sought orders directly against him, she has failed, refused and or neglected to join him as a party to the suit.
12.It is the DCI’s case that he is directly and fundamentally affected by this petition and will be seriously prejudiced by any orders issued in this matter. Further, that his presence in the proceedings will result in complete settlement of all questions involved in the proceedings.
13.Additionally, the DCI contends that his joinder will serve to provide protection of his rights and the rights of the Kenyans he swore to serve and who would be adversely affected by the failure to join him in the proceedings. Also, that his joinder to this suit is necessary to prevent a likely course of proliferated litigation and will avoid a multiplicity of suits being filed in Court.
14.The DCI avers that he has both a direct and indirect stake in these proceedings. Further, that he has great relevance in the petition and his interests will not be articulated unless he himself appears in the proceedings and champions his cause.
15.Finally, the DCI deposes that he will suffer great prejudice and shall be adversely affected by the determination of the matter unless he is given an opportunity to be heard. Additionally, that no prejudice will be suffered by any party and it is in the public interest that the DCI is made a party to the suit.
16.Counsel for the DCI supported the application by placing reliance on the decisions of the Supreme Court in the cases of Communications Commission of Kenya & 4 others v Royal Medial Services & 7 others [2014] eKLR; Francis Karioki Muruatetu & 5 others v Republic [2016] eKLR; and Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others [2014] eKLR.
17.The JSC supported the applications for joinder by filing the document titled ‘1st Respondent’s Notice of Grounds in Support of the Application of the Intended 4th Respondent dated 25th August, 2020.’ The relevant ground is framed as follows:
18.The advocates for the JSC made oral highlights in support of their position.
19.In opposition to the applications, the Petitioner asserts that neither the DPP nor the DCI has made out a case for joinder to these proceedings either as respondent or interested party. Her averment is that she has named the JSC, Honourable Mr. Justice Paul Kihara Kariuki and Macharia Njeru as respondents to the cause herein, pleaded and particularized the pleas against each and every one of them and there is therefore no basis for enjoining any other respondent.
20.The Petitioner points to Rule 2 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (hereinafter simply referred to as the Mutunga Rules) as defining the term ‘respondent’ to mean a person who is alleged to have denied or violated or infringed, or threatened to deny, violate or infringe a right or fundamental freedom. Her averment is that from the issues she has identified for determination and the grievances she has particularized in her pleadings, the DPP and the DCI cannot be named respondents to the petition as they are not alleged to have denied or violated or infringed, or threatened to deny, violate or infringe her rights or fundamental freedoms in so far as they relate to the issues raised in the petition.
21.It is additionally the Petitioner’s case that the issues touching directly on the office of the DPP and the DCI, wherein the two are alleged to have denied, violated, infringed upon, threatened to deny, violate or infringe upon her rights and fundamental freedoms are the subject matter of Civil Appeal No. 298 of 2019, Honourable Philomena Mbete Mwilu v DPP & 6 others and Civil Appeal No. 314 of 2019, the Director of Public Prosecutions & the Director of Criminal Investigations v Honourable Philomena Mbete Mwilu. Her case is that the issues in the stated appeals are clearly distinct and separate from the questions arising in this petition. Further, that the respondents in this petition are not parties to the said appeals.
22.The Petitioner also bases her opposition to the applications for joinder on Rule 5(d)(ii) of the Mutunga Rules. Her case is that an application for joinder can only be initiated by a petitioner or a respondent and a third party cannot apply for joinder as a party to the proceedings. The Petitioner concedes that a third party may, however, apply for joinder or may be joined by the court on its own motion as an interested party under Rule 7(1) and (2) of the Mutunga Rules. She therefore urges for the dismissal of the applications for joinder for being incompetent.
23.It is additionally the Petitioner’s case that the applications for joinder should fail for the reasons that she has no cause of action against either the DPP or the DCI in this petition; that her petition is targeted at the decisions of the JSC; that the DPP and the DCI are not necessary parties and proper parties to the petition nor is there a relief flowing from them to her; that this is not a case in which the ultimate order or decree contemplated in the petition cannot be enforced without the participation of the applicants in these proceedings; and, that the choice of the respondents in the petition lawfully belongs to her and not to the DPP and the DCI.
24.The Petitioner further deposes that the joinder of the DPP and the DCI as respondents or interested parties in this petition is not desirable for the reasons that any claim by herself against the DPP and the DCI is res judicata in view of the judgement made by the High Court on 31st May, 2019 in H. C. Petition No. 295 of 2018, Honourable Philomena Mbete Mwilu v DPP & 4 others; that any claim by herself against the DPP and the DCI will be an abuse of the process of Court in view of the pendency of Civil Appeal No. 298 of 2019, Honourable Philomena Mbete Mwilu v DPP & 6 others and Civil Appeal No. 314 of 2019, The Director of Public Prosecutions & the Director of Criminal Investigations v Honourable Philomena Mbete Mwilu; and, that a party who has filed a petition before the JSC seeking the removal of a judge from office cannot be permitted to espouse the response otherwise reserved for the JSC when the JSC’s administrative action is challenged in court by the Judge.
25.It is also the Petitioner’s case that the DPP and the DCI are busybodies whose intention is to embarrass and prejudice the fair hearing and determination of this petition; that it will be embarrassing for the DPP, the DCI and the JSC to appear together and take the same position in this petition and for the JSC to be expected to be impartial in the petitions pending before it should they be allowed to proceed; that as disclosed in the applications, the joinder of the DPP and the DCI will only be for the purposes of vexing the Petitioner or convoluting the proceedings; and, that the ulterior motive on the part of the DPP and the DCI is disclosed by the fact that they obtained the petition and filed their applications on 28th August, 2020 even before the respondents could respond to the petition.
26.Turning to the JSC’s grounds dated 7th September, 2020 in support of the request for joinder, the Petitioner asserts that the JSC which is required to be an impartial and independent arbiter had entered the fray of litigation to gang up and join hands with her accusers. Her case is that the conduct of the JSC and the DPP should be frowned upon by this Court as was done by the Court of Appeal in respect of the conduct of the assisting counsel and the Ntutu brothers in Moijo Matayia Ole Keiwua v Chief Justice of Kenya & 6 others [2006] eKLR and Moijo Mataiya Ole Keiwua v Chief Justice of Kenya & 6 others [2008] eKLR.
27.The Petitioner supported her averments and submissions by reference to the decisions in the cases of Francis Karioki Muruatetu & another v Republic & 5 others [2016] eKLR; Kenya National Union of Nurses v County Public Service Board Uasin Gishu County Government & another [2018] eKLR; Joseph Njau Kingori v Robert Maina Chege & 3 others [2002]; Talewa Road Contractors v Kenya National Highways Authority & another [2019] eKLR; Kensalt Limited v Water Resources Management Authority [2018] eKLR; Moijo Matayia Ole Keiwua v Chief Justice of Kenya & 6 others [2006] eKLR; Attorney General v Kenya Bureau of Standards and another [2018] eKLR; Trusted Society of Human Rights Alliance v Mumo Matemo & 5 others [2015] eKLR; Judicial Service Commission v Speaker of the National Assembly and others [2014] eKLR; and Raila Amolo Odinga & another v IEBC & 3 others [2017] eKLR.
28.The law on joinder of a party either as a petitioner, respondent or interested party is now well established. In constitutional petitions, the applicable law on joinder of parties is found at Rule 5 of the Mutunga Rules which states:
29.In regard to joinder as an interested party, Rule 7 provides as follows:
30.The Petitioner submits that the application is incompetent on two grounds namely that the applications are brought under the wrong provisions of the law and that an application for joinder as a respondent can only be made the parties to the suit and not a third party.
31.In support of the claim that constitutional provisions cannot be the basis upon which an application for joinder is made, counsel for the Petitioner cites Francis Karioki Muruatetu (supra) where the Supreme Court held that:
31.In support of the submission that a third party cannot move the court for joinder as a respondent, reliance is placed on Rule 5(d) of the Mutunga Rules and the holding in Kenya National Union of Nurses (supra) that:
32.In response to the submissions that the applications for joinder are incompetent, counsel for the DCI submitted that the claim by the Petitioner that only a party to a suit can apply for joinder of another party is an erroneous interpretation of the Rule 5(d) of the Mutunga Rules. Counsel contended that the court is at liberty to enjoin any party that may be affected by the proceedings and the only way that the court can determine if a party is likely to be affected by the proceedings is by considering an application by a third party.
33.Counsel urged that the court can also fall back on Rule 3(8) of the Mutunga Rules which reserves the inherent power of the court to issue orders necessary for the purpose of upholding justice. It was additionally submitted by counsel for the DCI that Order 53 of the Civil Procedure Rules, 2010 which deals with applications for judicial review is a good reference point as it provides for service of the application for judicial review orders on any person who ought to have been served with the application.
34.I have read the decision of Mbaru, J in Kenya National Union of Nurses (supra) and my understanding of that decision is that a claimant, plaintiff or petitioner decides who the respondent or defendant to his or her case is. Failure to bring the proper respondent or defendant before the court will be to the disadvantage of the claimant, plaintiff or petitioner as no enforceable orders can issue against a party not before the court.
35.A reading of Rule 5 of the Mutunga Rules in its entirety appear to support the Petitioner’s argument that it is only the parties before the court who can move the court for the addition, joinder, substitution and striking out of parties. Any case filed before the court is between the parties before court. A petitioner identifies and sues the person or persons who, in his or her view, has or have denied, violated or infringed, or threatened to deny or infringe his or her rights or fundamental freedoms. If the respondent or respondents are of the view that other persons not before court should be enjoined as co-violators of rights and fundamental freedoms, then they can apply to the court for addition of those persons as co-respondents.
36.There is, however, the possibility that there could be another person or other persons whose rights and fundamental freedoms have been violated or threatened by the same respondents in similar circumstances to those of the petitioner. Such a person, in my view, may seek to be enjoined as a co-petitioner. That would require the petition to be amended in order to state the particulars of the claim of the new petitioner against the respondents. The other and neater alternative, in my view, is for the new petitioner to file a fresh petition so that the petitions can be consolidated or heard contemporaneously. I do not wish to explore this issue further since the Petitioner has also raised substantive arguments as to why the applications for joinder should not succeed.
37.The DPP and DCI have stepped forward asking to be enjoined as respondents. The Petitioner says she has no claim against them in so far as this petition is concerned. The principles of joinder have been stated in various decisions of this Court and higher Courts.
38.The Petitioner’s case is that the DPP and the DCI have not established that any relief flows from the intended respondents to her. The applicants claim that some of the reliefs sought by Petitioner are against them. In the case of Joseph Njau Kingori (supra) it was stated that:
39.The Court proceeded to dismiss the application for joinder holding that:
40.That there must be a claim against the intended respondent which the intended respondent should answer was also stated in Talewa Road Contractors (supra) as follows:
41.The DCI’s counsel pointed to prayers (h), (i) and (l) in the petition and submitted that the said prayers directly affect him. It is necessary to reproduce those prayers:
42.A perusal of the cited prayers will show that the Petitioner seeks an interpretation of the meaning of the phrase ‘any person’ in Article 168(2) of the Constitution. The interpretation the Petitioner seeks is not limited to the DPP and the DCI but extends to other independent constitutional office holders, State agencies and State officers. If the petition is successful in the terms of the highlighted prayers, a judgment in rem shall issue. The DPP and the DCI have no special interest to protect in respect of the reliefs sought. If orders are issued as sought by the Petitioner, the agency expected to implement the judgment is the JSC and not the DPP and the DCI. None of the reliefs sought by the Petitioner will therefore directly affect the DPP or the DCI to the extent that they should be made respondents.
43.I therefore agree with the Petitioner that the applications by the DPP and the DCI to be made respondents in this petition have no merit. The applications by the DPP and the DCI to join these proceedings as respondents are therefore dismissed.
44.Although the Petitioner strongly opposed the joinder of the DPP and the DCI as interested parties, I note that the DPP and the DCI did not specifically ask to be enjoined as interested parties.
45.The principles governing the joinder of interested parties in proceedings were expressed by the Supreme Court in Francis Karioki Muruatetu (supra) as follows:
46.The role of an interested party in proceedings is peripheral as was expressed by the Supreme Court in the just cited case as follows:
47.It is observed that the DPP and the DCI have a stake in the matter before this Court for the simple reason that they are the complainants before the JSC. They should be admitted as interested parties in these proceedings so that they can enjoy their rights under Article 50 of the Constitution. In exercise of the power granted to this Court under Rule 7(2) of the Mutunga Rules, I admit the DPP and the DCI into these proceedings as the respective 1st Interested Party and 2nd Interested Party. Costs for the application shall abide the outcome of the petition.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2020.W. KORIR,JUDGE OF THE HIGH COURT