A RULE WITH A HOLE IN IT: UNPACKING THE KENYAN SUPREME COURT’S UNRESOLVED CONTRADICTION ON INTERESTED PARTY STANDING
A Critique by Gody Mwango
On 31st March 2026, a 5-Judge bench of the Kenyan Supreme Court [“the Court”] handed down a ruling in Mbaazi Avenue Residents’ Association & another v Metricon Home Nairobi Company Limited & 2 others [2026] KESC 30 (KLR) that restated, with apparent finality, the rule against interested parties instituting independent appeals. The ruling was clear, direct, and unanimous. The court was unequivocal that an interested party “cannot suddenly and on appeal transform itself into a substantive party and take over such a party’s case” [18]. Expressly, such an appeal was unsustainable. I harbour no qualms with the outcome of the ruling. My trouble lies with that which the court declined to explain, specifically because the explanation is of utmost importance, and the silence of the court leaves a major doctrinal gap that no practitioner can confidently navigate.
In its decision in Law Society of Kenya v Centre for Human Rights and Democracy & 12 others [2014] KESC 29 (KLR) some eleven years ago, the same court did exactly what it now claims cannot be done. LSK was enjoined as an interested party before the High Court and did not participate in the Court of Appeal. At the Supreme Court, none of the principal parties appealed, but the LSK did. The court permitted its appeal to proceed. Contrastingly, in Mbaazi Avenue, the rule is now restated with stark candour that the appeal should never have left the registry in the very first place- dead on arrival. At face value, the two decisions are immediately irreconcilable. The experienced 5-judge apex bench was directly invited to ventilate on this apparent contradiction by the applicants in the ruling’s paragraph 12. Interestingly, the invitation was met with complete silence from the court.
Judicial silence on a contradictory authority that is directly cited by an applicant cannot be interpreted as neutrality. Coming from a highly experienced bench, it amounts to a choice that carries consequences. It portends deeper ramifications, including for advocates who analyse Mbaazi Avenue, who must deal with two decisions of the apex court which are irreconcilable on the same point. The silence means that the court missed a golden chance to guide on which position prevails, why, or under what specific conditions. It neither overruled, distinguished nor acknowledged the tension from its earlier stance in LSK v Centre for Human Rights. All the court did was reaffirm Macharia & another v DPP & 11 others [2022] KESC 61 and move on. An apex court sitting as the bench of final jurisdiction that refuses to confront a direct contradiction in its precedents does a disservice to the certainty of the precedent doctrine as understood in law.
The distinction is not hard to deal with. The LSK is born of a statute, which directly mandates it to uphold the constitution and the rule of law. At its best, examined from its statutory constitution, it exists to litigate questions relating to the interest of the public, which do not arise only based on its presence in courts below. On the contrary, a residents’ association/community, as was the case in Mbaazi Avenue, lacks such a mandate. Implicitly, its interest is more direct and factual as it is directly affected by the case’s outcome. That is a clear distinction which is not difficult to articulate. One has an affected party interest, and the other a public interest standing. As such, the latter may survive the label as an interested party as its locus is not derived from the procedure but a substantive law creature. The former cannot. The bench sitting in Mbaazi Avenue had ample experience, opportunity, space, and disposition to say this explicitly, but it refused to utilise it.
The ruling presents a deeper structural problem. Violations of the constitution, which touch on public participation failure, degradation of the environment, and zoning abuses, directly impact the communities, which are unlikely to possess the necessary resources to institute suits as principal parties. Such communities seek to be enjoined as interested parties, as that’s all they can afford, either financially or procedurally due to potential exposure. An absolute rule, as laid down in Mbaazi Avenue, without clarity on any exceptions, as per the LSK case, means that the vital constitutional protections under Articles 10, 42, 69, and 70 are rendered inaccessible to the very groups they were tailored to safeguard. This consequence deserved more robust and open engagement from the court than merely restating the rule without accounting for its exception.
The pragmatic position for advocates is direct and immediate. The ruling in paragraph 18(v) of Mbaazi Avenue is the absolute/governing rule until such a time that the court will revisit the issue of whether the stake of a party, be it intergenerational, environmental, or communal, could be a justifiable or sufficient basis for an independent right of appeal for interested parties. Therefore, without any exception, your client must appear as a principal party right from the trial court’s first filing. However, if your client enjoys a public interest mandate under a statute, pivot the LSK case argument directly and invite the bench to once and for all ventilate on that which it has refused to. The court in Mbaazi Avenue was calculative, deliberate, experienced, and unanimous, and its silence on the LSK case was a deferral, not an oversight. At a future point, the deferral must stop because an absolute rule with an exception that is not acknowledged isn’t that absolute. Is it? It becomes an ambush.
©Gody Mwango (Advocate). The author practises at the intersection of constitutional, human rights & judicial review law.