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Case Brief · caselaw.co.ke
Supreme CourtPartially AllowedReference 1 of 2018

County Assembly of Mandera County v Governor, Mandera County & another

Supreme Court of Kenya
23 January 2020
871 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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You cannot seek dismissal of a case before you are officially joined as a party.

What this practically means

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This Supreme Court ruling settled a procedural issue: if you want to be added as an interested party to a case, you must first be formally joined before you can ask the court to dismiss the case. Here, the Mandera Governor and County Government wanted to join a case and also asked for its dismissal. The court allowed the joinder because they had a direct stake in the matter. But it struck out the dismissal request, since they were not yet parties and therefore lacked the legal capacity to seek that order.

Executive summary

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This ruling concerns two applications in an advisory opinion reference filed by the County Assembly of Mandera County under Article 163(6) of the Constitution. The Governor of Mandera County and the County Government of Mandera sought to be enjoined as interested parties and also sought dismissal of the reference on grounds that it was sub judice a matter pending before the Marsabit High Court and that the Attorney General had already provided legal advice on the subject. The Supreme Court, in a unanimous decision, allowed the joinder application, finding that the applicants had an identifiable stake in the matter as the appointing authority and the entity for which executive committee members were being appointed, and would be prejudiced if not enjoined. The Court applied the criteria from Trusted Society of Human Rights Alliance v Mumo Matemu and Francis Karioki Muruatetu & another v Republic. However, the Court struck out the prayer for dismissal of the reference, holding that a party not yet enjoined lacks capacity to seek substantive orders in a matter. The Court ordered no costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Governor, Mandera County and the County Government of Mandera should be enjoined as Interested Parties in the Reference.
  2. 2.Whether the Reference should be dismissed on grounds of sub judice or because the Attorney General had already offered legal advice.

Key legal issues

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01

Whether the Governor and County Government of Mandera had a sufficient interest to be joined as Interested Parties in the Reference.

Holding

Yes, they had an identifiable stake in the matter because the Governor is the appointing officer of Members of the County Executive Committee and the County Government is the entity for which the appointees were being appointed.

Reasoning

The Court applied the criteria from Trusted Society of Human Rights Alliance v Mumo Matemu and Francis Karioki Muruatetu & another v Republic, finding that the applicants would be prejudiced if not enjoined and had a direct and legitimate interest in the subject matter of the Reference.

02

Whether the Reference should be dismissed on grounds of sub judice or because the Attorney General had already offered legal advice.

Holding

No, the prayer for dismissal was premature and struck out because the applicants had not yet been enjoined and lacked capacity to seek substantive orders.

Reasoning

The Court held that a party seeking joinder cannot simultaneously seek substantive relief in the same matter before being admitted as a party. The prayer for dismissal was therefore premature and could not be entertained.

Legal principles established

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  • A party not yet formally joined in a case cannot ask the court for any substantive orders.
  • Joinder is allowed if the applicant has a direct, identifiable stake in the subject matter.
  • The test for joining as an interested party is whether the applicant would be prejudiced if not joined.
  • You cannot combine a request to join a case with a request to dismiss the case in the same application.
  • The Governor and County Government have a sufficient interest because they appoint and host county executive members.
  • No costs were awarded because the application was partially successful and raised important procedural points.

Court orders

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  1. 1.The Application dated 20th August, 2018 and filed on 3rd August, 2018 seeking joinder of the Governor, Mandera County and the County Government of Mandera as Interested Parties to the Reference herein be and is hereby allowed only in terms of prayer (i).
  2. 2.For the avoidance of doubt, the second prayer seeking dismissal of the Reference herein is hereby disallowed for being premature.
  3. 3.There shall be no orders as to costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
Jurisdiction invoked
Article 163(6) of the Constitution

Relief refused

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Dismissal of the Reference

The prayer for dismissal was premature because the applicants had not yet been enjoined as parties and lacked capacity to seek substantive orders.

Costs

There shall be no orders as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the 1st and 2nd Proposed Interested Parties, being the appointing officer of the Members of County Executive Committee and the County Government in respect of whom the appointees were being appointed respectively, will be prejudiced if they are not enjoined and that they have an identifiable stake in the matter
p. 3 Criteria for joinder as interested party
a party yet to be enjoined in a matter such as the present Reference, lacks the capacity to seek any substantive orders in it and that the prayer aforesaid is premature
p. 3 Capacity of a non-party to seek substantive orders
The Application dated 20th August, 2018 and filed on 3rd August, 2018 seeking joinder of the Governor, Mandera County and the County Government of Mandera as Interested Parties to the Reference herein be and is hereby allowed only in terms of prayer (i);
p. 3 Final order on joinder
There shall be no orders as to costs.
p. 3 Costs order

Key timeline

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2018-08-03
Application filed by Governor and County Government of Mandera seeking to join the advisory opinion reference as interested parties and to dismiss the reference.
2018-08-20
Application dated by the Governor and County Government of Mandera.
2020
Supreme Court delivers ruling: joinder allowed, dismissal prayer struck out, no costs.

Practical implications

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For lawyers

Joinder before substantive relief

When representing a client seeking to join a case as an interested party, ensure you first obtain the joinder order before filing any substantive motions like dismissal or striking out. Filing both together risks having the substantive prayer struck out as premature, as happened here. Use the Trusted Society and Muruatetu criteria to demonstrate prejudice and identifiable stake.

For businesses

Only join cases after formal admission

If your business wants to intervene in a court case that affects you, you must first be formally admitted as an interested party. You cannot ask the court to dismiss the case or take any other action until you are officially a party. Rushing to seek orders before joinder wastes time and may be rejected entirely.

For individuals

You must be a party first to act

If you feel a court case could affect your rights, you can apply to join as an interested party. But you cannot ask the judge to throw out the case until you are actually added to the case. The court will only consider your requests after you become a formal party. Apply to join first, then make your arguments.

Frequently asked questions

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What does it mean to be an interested party in a Kenyan court case?+

An interested party is someone who is not the main plaintiff or defendant but has a direct stake in the outcome of the case. In Kenya, you can apply to be joined if you show you would be prejudiced if not included. For example, the Mandera Governor was allowed to join because he appoints the county executive committee members at issue.

Can I ask the court to dismiss a case before I am officially added as a party in Kenya?+

No. The Supreme Court ruled that a person who has not yet been formally joined as a party lacks the legal capacity to ask for any substantive orders, including dismissal of the case. You must first be admitted as an interested party, then you can file requests like dismissal.

What is the test for joining a case as an interested party in Kenya?+

The test comes from the Trusted Society and Muruatetu cases. You must show that you have an identifiable stake or direct interest in the subject matter, and that you would suffer prejudice if not joined. The Mandera Governor and County Government passed this test because they were directly involved in appointing the officials in question.

Does the Attorney General's legal advice stop a county assembly from seeking a Supreme Court advisory opinion in Kenya?+

No. In this case, the Governor argued that the Attorney General had already given advice, so the County Assembly's reference should be dismissed. The Court did not rule on that because the dismissal request was premature. The advisory opinion process under Article 163(6) remains available to county assemblies.

Cite this brief

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Cite this brief

Caselaw, "County Assembly of Mandera County v Governor, Mandera County & another", Case Analysis (2020). Reference 1 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/57/eng@2020-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.