Appellate Joinder 101: How (And Why) Parties Get Added on Appeal
Ever wondered what happens if someone wants to jump into a court case after it’s already gone up on appeal? That’s where appellate joinder comes in. Think of it as the legal version of arriving fashionably late to a party—you weren’t there at the start, but now you’ve got a real interest in what’s happening and want a seat at the table.
In this article, we’ll break down:
- What appellate joinder actually means in plain English
- Why and when a new party might be allowed to join an appeal
- The step-by-step process courts use to decide
- Common pitfalls and real-world examples to make sense of it all
Whether you’re a law student trying to demystify appellate procedure, a lawyer brushing up on strategy, or just a curious reader, this guide will walk you through appellate joinder in a way that’s clear, practical, and maybe even a little fun.
Whenever a matter is instituted before either a Subordinate Court or Superior Court sitting as the court of first instance, joinder of a party as an Interested Party could occur in two ways.
The Intended Interested Party having gotten wind of an ongoing suit, whereby the outcome will have an impact on them, shall proceed to file a joinder application as they lay a basis on why they should be joined to the suit. The second scenario is when the judicial officer may order that a party be joined to the proceedings as an Interested Party.
In the event of a joinder application, the Intended Interested Party must satisfy the following criteria given by the Supreme Court in the case of Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2016] KESC 12 (KLR) (Civ) (28 January 2016) (Ruling) in order for the court to exercise its discretion in allowing the joinder:
- The personal interest or stake that the party has in the matter must be set out in the application;
- he interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is 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; and
- 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.
But what if a judgment is delivered, the matter has proceeded on appeal and an Intended Interested Party is later affected by this judgment and wants to participate in the appeal?
Kenya Bankers Association was placed in this position when the Court of Appeal in the case of Commissioner of Domestic Taxes (Large Tax Payer Office) v Barclays Bank of Kenya Ltd [2020] KECA 214 (KLR rendered its judgment as follows whereby Kenya Bankers Association was not a party at both the High Court and Court of Appeal:
‘We are persuaded that the evidence on record properly established that the payments paid by the respondent (Barclays Bank of Kenya Limited) to the card companies were royalty as defined in the (Income Tax) Act and further that the interchange fees it paid to issuer banks were for management and professional services as defined in the Act, and therefore both payments were subject to withholding tax under the Act.
Accordingly, we find merit in this appeal and allow it with costs to the appellant. It is so ordered.’
This Court of Appeal judgment arose following an appeal from the High Court regarding a dispute between Barclays Bank of Kenya Limited (now ABSA Bank Kenya PLC) and the Commissioner of Domestic Taxes (Large Tax Payer Office) on whether withholding tax is payable by a bank for payments it has made to credit card companies and to other banks that issue credit cards. Barclays Bank told both the High Court and Court of Appeal that it is a member of networks established by three credit card companies, namely, Visa International Services Association, MasterCard, Inc., and American Express Ltd in issuance of credit cards, debit cards and pre-paid cards to its customers.
However, every bank licensed to operate in Kenya has a similar arrangement with Visa International Services Association, MasterCard, Inc., and American Express Ltd because they offer the same banking and financial services. Therefore, with this matter moving from the Court of Appeal to the Supreme Court for the same to be addressed with finality, the outcome at the Supreme Court was no longer limited to just these two litigants but the entire banking sector in Kenya. The Court of Appeal’s and later, the expected Supreme Court’s judgment would no longer be a judgment in personam (a judgment limited to only the parties to the suit) but a judgment in rem (a judgment affecting the entire banking sector in Kenya and by extension every person bearing a debit, credit and prepaid card for use in Kenya).
As a result, Kenya Bankers Association being the umbrella body that operates as the banking sector’s leading advocacy group filed a joinder application dated 5th July 2022 in the ongoing Supreme Court case between Barclays Bank of Kenya Limited (now ABSA Bank Kenya PLC) and Commissioner of Domestic Taxes (Large Tax Payer Office).
On 7th October 2022, the Supreme Court delivered a ruling in Barclays Bank of Kenya Limited ( Now ABSA Bank Kenya PLC) v Commissioner of Domestic Taxes (Large Taxpayers Office); Kenya Bankers Association (Proposed Interested Party) (Petition 12 (E014) of 2022) [2022] KESC 60 (KLR) (7 October 2022) (Ruling) allowing Kenya Bankers Association to join the suit as an Interested Party after having met the criteria of an identifiable stake in this case.
This is because it was demonstrated that Barclays Bank of Kenya Limited (now ABSA Bank Kenya PLC) is a member of Kenya Bankers Association and therefore, the other members of Kenya Bankers Association had a direct and identifiable stake in the outcome of the case at the Supreme Court.
With Kenya Bankers’ joinder having been allowed, attention turns to the much-awaited judgment of the petition by the Supreme Court.
The principles for joinder as an Interested Party in a court of first instance and at an appellate stage are well settled by the Supreme Court in the earlier mentioned Muruatetu & Another v Republic case which binds all courts below it.
Therefore, this ruling in favour of Kenya Bankers Association demonstrates that appellate joinder, though not so frequent as joinder in a court of first instance, is still applicable provided a party can demonstrate how it meets the threshold for joinder.