Joseh Alex Ruthi Kahura v John Muiruri Njata & another; John Karanu (Intended Interested Party/Applicant)

c) That leave be and is hereby granted to the Applicant to file a statement of interest to the claimant's memorandum of claim including a witness statement. d) That this Honourable Court be pleased to grant any other order deemed fit and just to meet the ends of justice. e) That costs of this application be in the cause. 2. The Motion is premised on the grounds set out on its face and the Supporting Affidavit sworn by the Applicant on 18th August 2026. 3. Grounds in support of the Motion are that the 2 nd Respondent’s branch elections held on 7th February 2026 were a sham, particularly with regard to the eligibility of the 1st Respondent. In this regard, the Applicant contends that, despite not being a fully paid-up member of the Union and the branch, and therefore being ineligible to participate in the elections, the 1 st Respondent not only contested for the position of Branch Executive Secretary but also voted in the said elections, contrary to Articles XA (4) and XC (1) of the Union’s Constitution. 4. The Applicant avers that he has been an official of the 1 st Respondent Union since 2006, serving as the Branch Treasurer of the Murang’a South Branch. He 2

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states that his principal functions included the control of branch funds and, in particular, the keeping of the branch’s books of account. 5. The Applicant further avers that he served in the Union for approximately 20 years and that the 1st Respondent became the Executive Secretary in 2016, thereby becoming a full-time employee of the Union. He contends that the 1 st Respondent was, consequently, not an employee of the Teachers Service Commission (TSC). He states that he was responsible for making payments to the 1st Respondent, which payments were made in cash, by cheque and through the 1st Respondent’s bank account. He further states that he never issued the 1 st Respondent with a pay slip. 6. The Applicant further avers that a sum of Kshs.72,000.00 was deducted from the 1st Respondent and retained by the branch as union dues, which amount was subsequently given to the 1st Respondent on 27th December 2025. He states that, upon payment to the headquarters, approximately 61.25% of the said amount, being Kshs.44,100.00, was due for remittance to the branch. According to the Applicant, although the 1st Respondent paid Kshs.28,365.00 to the headquarters on 8th January 2026, he did not remit the Kshs.44,100.00 due to the branch. 7. The Applicant further states that the branch treasurer’s receipt book then in use was No. 161-28851-28900 and that the same contains no entry evidencing 3

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payment of Kshs.44,100.00. He adds that the said amount ought to have been recorded in the collector’s receipt book and not treated as a remittance from the Union’s headquarters. 8. The Applicant asserts that the 1st Respondent had not paid the sum of Kshs.44,100.00 by 7th February 2026 and was, therefore, not eligible to contest for the position of Branch Executive Secretary, having not been a fully paid-up member of the Union at the time of the elections. 9. The Applicant further contends that all the documents produced by the 1 st Respondent on 16th July 2026 are forgeries or documents that did not originate from the relevant bodies or offices. 10.The Applicant further contends that, had the 1st Respondent been paying union dues through the check-off system, there would have been no basis for him to deposit Kshs.44,100.00 into the branch account as alleged. It is the Applicant’s view that, in the event the 1st Respondent was paying union dues through the check-off system, he would not have deposited Kshs 44,100/- into the branch account as he purports, and neither would he have deposited Kshs 28,365/- as a lump sum to the headquarters on 8th January 2026. 4

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11.The Respondents opposed the Motion through the Replying Affidavit sworn on 23rd September 2026 by Collins Henry Oyuu, the 2nd Respondent’s Secretary General. 12.Mr. Oyuu avers that he has been advised by the Respondents’ advocates on record that the application has been made after the hearing of the matter and is highly prejudicial. He contends that such an application can only be allowed in exceptional circumstances, which the Applicant has not demonstrated. 13.He further contends that the Applicant has not demonstrated any identifiable, proximate or legally recognisable interest in the proceedings capable of justifying his joinder as an Interested Party. 14.Mr. Oyuu further contends that the Applicant’s grievance merely mirrors that of the Claimant and that the Applicant has not demonstrated any independent or enforceable right or obligation of his own that may be affected by the judgment. He asserts that the Applicant faces no prejudice beyond that which may be suffered by an ordinary member of the Union and that he seeks to advance no distinct submissions from those already canvassed and concluded in the proceedings. 5

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15.He further states that he has been advised by the Respondents’ advocates on record that, under Order 1 Rule 10(2) of the Civil Procedure Rules, a person may only be joined where his or her presence is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions in the suit. 16.Mr. Oyuu further contends that the Applicant is a stranger to the dispute and has been guilty of inordinate delay, no explanation having been offered for his failure to seek joinder at an earlier stage of the proceedings. 17.He adds that allowing the application would necessarily entail the reopening of the hearing, the recall of witnesses, the filing of further pleadings and submissions, and the vacation of the judgment date scheduled for 2 nd October 2026. In his view, such a course would be contrary to the overriding objective of expeditious disposal of proceedings under Article 159(2)(b) of the Constitution. 18.Mr. Oyuu further avers that he has been advised by the Respondents’ advocates on record that the power to reopen a hearing is discretionary and must be exercised judiciously. 6

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19.Putting the Applicant to strict proof, Mr. Oyuu maintains that the payment and remittance of the Union dues were duly undertaken and that the documents produced during the hearing are authentic. He contends that, by virtue of his position, he is conversant with the day-to-day administration and handling of branch funds and union dues, both before and after the branch elections held on 7th February 2026. 20.Mr. Oyuu further contends that the Applicant waited until after the hearing and filing of final submissions to seek joinder, notwithstanding his allegation that he had been in possession of the relevant information. He asserts that the Applicant’s intention to introduce a witness statement through the proposed joinder demonstrates that the application is, in substance, an attempt to introduce fresh evidence into a hearing that has already been concluded. He consequently urges the Court to dismiss the application with costs. Submissions 21.The Application was canvassed by way of oral submissions by learned counsel for the respective parties. On behalf of the Applicant, Mr. Rakoro submitted that the Applicant has an identifiable interest in the matter, being a teacher who has served as an elected official of the 2 nd Respondent Union for approximately 20 years. Counsel further submitted that the Applicant is a voter and was a candidate in the most recent Union elections. 7

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22.Counsel further submitted that the Applicant had approached the Court to demonstrate that the 1st Respondent was a full-time employee of the Union and not of the TSC and, consequently, that the pay slips relied upon by the 1 st Respondent could not have been issued by the TSC. 23.Mr. Rakoro further submitted that the judgment date of 2nd October 2026 was not cast in stone and that the Court’s overriding objective was to determine disputes in a just, expeditious, efficient and proportionate manner. 24.On behalf of the Respondents, Mr. Ajak submitted that the Applicant’s arguments substantially mirrored those advanced by the Claimant in his pleadings. Counsel contended that the reasons advanced by the Applicant for seeking participation in the proceedings did not satisfy the requirements for joinder as an Interested Party. 25.Mr. Ajak further submitted that the Applicant was undeserving of the orders sought, having been in possession of the relevant receipt book and having been aware of the proceedings all along. 26.Counsel further argued that allowing the application would have the effect of reopening the case and would occasion prejudice to the Respondents. He further 8

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submitted that election disputes such as the present one are required to be determined within a period of 180 days, which period had already lapsed. 27.In brief rejoinder, Mr. Rakoro submitted that, since the Applicant was not a party to the proceedings, he could not have had access to the documents produced by the Respondents during the hearing. He further submitted that, to date, the original documents produced by the Respondents had not been served upon the Applicant. Analysis and Determination 28.I have considered the Notice of Motion, the Respondents’ Replying Affidavit, and the oral submissions made by the respective counsel for the parties. In the Court’s view, the sole issue for determination is whether the Applicant’s application for joinder is merited. 29.The law governing the joinder of parties is set out under Order 1 Rule 10(2) of the Civil Procedure Rules, which provides as follows: “The Court may at any stage of the proceedings, either upon, or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant be struck out, and that the name of any 9

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person who ought to have been joined, whether as Plaintiff or Defendant or whose presence before the court may be necessary to enable the court to effectually and completely to adjudicate upon or settle all questions involved in the suit, be added.” 30.The Black’s Law Dictionary (9th Edition) defines an Interested Party as: “a party that has a recognizable stake and therefore a standing in the matter.” 31.In the case of Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR), the Supreme Court set out the guiding principles to be considered in determining whether a party ought to be joined to proceedings as an Interested Party thus: “One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements: The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is 10

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merely peripheral. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.” 32.The above guiding principles were subsequently reaffirmed by the Supreme Court in Attorney General v David Ndii & 73 Others (Petition 12 (EO16) of 2020) [2021] KESC 17 (KLR). 33.In the present case, the Intended Interested Party/Applicant seeks to be enjoined in these proceedings on the basis that he has served as the Treasurer of the 2 nd Respondent’s Murang’a South Branch since 2006. He further contends that the documents produced by the 1st Respondent on 16th July 2026 are forgeries, asserting that he neither authored nor issued the said documents. 34.Applying the guiding principles set out by the Supreme Court in Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 11

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others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (supra), the Court finds that, in as much as the Applicant is linked to the dispute by virtue of his uncontested position as the 2nd Respondent’s Murang’a South Branch Treasurer, he has not demonstrated that he has a personal stake or a clearly identifiable interest in these proceedings. 35.The mere fact that the Applicant possesses information relevant to the proceedings, or has an interest in the subject matter, does not satisfy the threshold for joinder as an Interested Party. 36.It is apparent that the Applicant principally seeks to introduce fresh evidence, particularly regarding the 1st Respondent’s membership status at the time of the elections held on 7th February 2026 and the authenticity of the documents produced by the Respondents during the hearing. These matters go directly to the merits of the dispute, which has already been heard and is pending determination by the Court. 37.What’s more, the Applicant seeks leave to file a witness statement through which he intends to place further evidence before the Court. This further confirms that the Applicant’s intended participation in the proceedings herein is primarily evidentiary rather than founded upon an identifiable interest. 12

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38.It should be appreciated that joinder of a party is not intended to provide a means of reopening a concluded hearing or to enable a party to introduce evidence which could, with reasonable diligence, have been placed before the Court at an earlier stage of the proceedings. 39.The timing of the application also comes to the fore. Why do I say so? The present Motion was filed after the hearing had concluded and the parties had filed their submissions and at a time when the matter had already been reserved for judgment on 2nd October 2026. 40.No plausible explanation has been offered for the Applicant’s failure to seek joinder at an earlier stage, particularly considering his assertion that he has been a Union official since 2006 and was, therefore, in possession of the information upon which he now seeks to rely, including information concerning the branch finances and the 1st Respondent’s membership status. 41.Indeed, the evidence which the Applicant now seeks to introduce could properly have been presented by the Claimant, with the Applicant appearing as a witness. It was therefore unnecessary for the Applicant to seek joinder, particularly at this advanced stage of the proceedings. 13

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42.All in all, the Court finds that the Applicant has not demonstrated a personal and identifiable interest in the proceedings that is distinct from that of the Claimant, who is already a party to the suit. 43.Consequently, I find that the Applicant has not met the threshold for joinder as an Interested Party. No distinct, identifiable or legally recognisable interest has been demonstrated to warrant the exercise of the Court’s discretion in his favour. 44.For the foregoing reasons, the Notice of Motion dated 18 th August 2026 is disallowed, with no order as to costs. DATED, SIGNED and DELIVERED at NAIROBI this 28th day of September 2026. ……………………………… STELLA RUTTO JUDGE In the presence of: Mr. Rakoro for the Claimant and the Intended Interested Party/Applicant Mr. Ajak for the Respondents Ndati Court Assistant 14

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ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. STELLA RUTTO JUDGE 15

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