Oliver Mukhebi & 26 others v Bungoma County Public Service Board & another; Barasa Kundu Nyukuri (Interested party) [2021] KEELRC 58 (KLR)
The bottom line
#Kenya's Employment Court refused to add an 'interested party' to a Bungoma hiring dispute, ruling that public interest claims and even dishonest filings cannot replace a genuine personal stake in a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the proposed interested party should be granted leave to be enjoined in the proceedings as an interested party
- 2.Whether the proposed interested party has an identifiable, legal and personal stake in the cause
- 3.Whether the Applicant's claimed status as a Public Interest Litigant under Article 258 of the Constitution justifies joinder
- 4.How to deal with the Applicant's further affidavit and evidence filed without leave of court
Key legal issues
#Test for joinder of an interested party
The proposed interested party must demonstrate an identifiable, legal and personal stake in the proceedings; the Applicant had no personal stake and failed the test
The court adopted the definitions in the Mutunga Rules, the Supreme Court's decision in Francis Karioki Muruatetu and the Mumo Matemu decision, all requiring a stake in the proceedings. The Applicant was not an applicant in the recruitment process, had no privity with the Respondents, and his claimed role as a Public Interest Litigant under Article 258 does not substitute for a personal stake. His application for conservatory orders in the underlying petition gave him no cause of his own.
Credibility of the Applicant and abuse of court process
The Applicant misled the court by claiming to have submitted a petition to the Board on 3rd November 2021 when the annexure was dated 2nd December 2021; he came to court with dirty hands
The court observed that the supporting affidavit alleged a petition submitted on 3rd November 2021, yet annexure BN-1 was dated 2nd December 2021, one day before filing, was unstamped and unaccompanied by email evidence. The court treated this as a deliberate attempt to mislead it, found the Applicant was not acting in good faith, and held that equity frowns on such conduct. This falsehood independently undermined the application.
Filing of further affidavit and evidence without leave
The further affidavit and evidence dated 14th December 2021 filed without leave of court was struck out
The proposed interested party filed a further affidavit and evidence in Petition No. E12 of 2021 dated 14th December 2021 without the leave of the court. The court struck out the further affidavit as improperly on record. The Petitioners' reliance on that further affidavit in support of the joinder could therefore carry no weight.
Legal principles established
#- An interested party is one who has a stake in the proceedings and will be affected by the decision of the court either way; such a party must demonstrate a personal stake in the matter before the court
- The broad constitutional right to petition under Article 258 is a right of petitioners, not a basis for interested parties to be enjoined
- A litigant who comes to court on falsehoods comes with dirty hands and equity frowns on that conduct
Court orders
#- 1.The Applicant's further affidavit and what he called evidence dated 14th December 2021 filed without leave of court is struck out
- 2.The Notice of Motion application dated 3rd December 2021 seeking leave to join as interested party is dismissed
- 3.Costs of the application awarded to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 5 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms and Enforcement of the Constitution) Practice and Procedure Rules, 2012 (Mutunga Rules); Articles 22, 258 and 41 of the Constitution (employment and labour relations jurisdiction over county public service recruitment)
Relief refused
#Leave to join the proceedings as an interested party
The Applicant failed the test for joinder as he lacked a personal stake in the cause and his application was based on falsehoods
Costs
Application dismissed with costs to the Respondents - "the court finds the Application dated 3rd December, 2021 to be without merit and dismisses the same with costs."
Quotable passages
#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 court finds the Application dated 3rd December, 2021 to be without merit and dismisses the same with costs.
The broad right to petition under Article 258 of the Constitution is in the opinion of this court a right of petitioners not interested parties being enjoined.
The court finds the proposed interested party has come to court with dirty hands. Equity frowns at that.
An interested party is one who has a stake in the proceedings. He or she is one who will be affected by the decision of the court when it is made, either way
Issues in the judgment
#The judgment records the application as based on the assertion it was 'having been brought with unreasonable delay' within a ground asserting no prejudice - an apparent drafting error in the Applicant's grounds; also the Applicant's own date inconsistencies (petition allegedly of 3rd November 2021, affidavit sworn 3rd December 2021, annexure dated 2nd December 2021)
Judge's title in the citation treatment: the judgment refers to 'Matino Judge' in the Kenya Medical Laboratory Technicians case without full identification of the judge
The judgment is internally inconsistent on the date the application was filed (3rd December 2021) versus the supporting affidavit sworn on 3rd December 2021 while the ground references a petition dated 3rd November 2021 contradicted by annexure BN-1 dated 2nd December 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oliver Mukhebi & 26 others v Bungoma County Public Service Board & another; Barasa Kundu Nyukuri (Interested party) [2021] KEELRC 58 (KLR)", Case Analysis (2021). Petition No. E12 of 2021 (Notice of Motion application dated 3rd December 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/58/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.