The Meaning of “Join” and “Joinder”

The terms “join” and “joinder” are fundamental legal concepts. They refer to the act of bringing additional parties or claims into legal action to ensure a comprehensive and just resolution. “Join” is a verb, and “joinder” is its corresponding noun. These terms are crucial in maintaining the fairness and efficiency of court proceedings, as they allow for the consolidation of related matters and parties.

The Tenth Edition of Black’s Law Dictionary, 2004 edition, defines “joinder,” as “the uniting of parties or claims in a single lawsuit.” Curiously, the dictionary does not define “enjoinder” but links it to the verb “enjoin,” which it defines as “to legally prohibit or restrain by injunction” or “to prescribe, mandate, or strongly encourage.”

Moreover, the Oxford English Dictionary, Twelfth Edition, defines “join” as “to link or become linked or connected to,” and “joinder” as “the action of bringing parties together.” In contrast, “enjoin” is defined in everyday conversation as “to instruct or urge someone to do something” and, in a legal context, as “to prohibit someone from performing an action by issuing an injunction.”

The Problem with “Enjoin” and “Enjoinder”:

The term “enjoin” is a distinct legal term that refers to a court order that prohibits a person or entity from engaging in a particular action. Essentially, it is an injunctive relief granted by the court to prevent harm or preserve the status quo. “Enjoin” should not be used interchangeably with “join.”

When an entity or individual, ostensibly seeking to be added as a party in a lawsuit, makes an application to be “enjoined,” it raises fundamental questions about their true intentions and the court’s jurisdiction in facilitating what is inherently contradictory - attempting to enjoin someone as a party when they are not parties to the proceedings. Indeed, some judges in Kenya have expressed their dismay when confronted with parties. A notable example is found in the case of Re Estate of Barasa Kanenje Manya (Deceased) (Succession Cause 263 of 2002) [2020] KEHC 1 (KLR) (30 July 2020), where Musyoka J articulated the issue succinctly:

“I raise this because the applicants herein have asked to be ‘enjoined’ to the cause as parties. That literally means that they be injuncted, barred or prohibited from the cause. The prayers as framed are completely nonsensical when looked at against the averments made in the affidavit, sworn in support of the application. In the said affidavit, the applicants still talk about being ‘enjoined’ in the proceedings as parties so that the court can fully and effectually determine the issues in the succession cause. They are not asking for injunctions, and, therefore, the use of the word ‘enjoined’ in the application and the affidavit is unfortunate. The applicants appear to have intended to use the word or words ‘join’ or ‘joined’ instead. Clearly, the prayers as framed would make no sense at all if granted as prayed.”

As one of the petitioners in the recent high-profile consolidated petitions challenging the constitutionality of Kenya’s Finance Act 2023, I can attest that this issue is actively manifesting itself in our legal landscape.  In this case, multiple parties sought to become interested parties, and numerous applications were filed for amici curiae participation. Remarkably, an overwhelming 99% of these applicants incorrectly used the term “enjoin.”

Similar misuse is observable in other notable cases like the BBI case, and the Muruatetu case, among other landmark cases, where both judges and distinguished lawyers interchanged these terms. This problem extends to numerous instances across the legal landscape. It is ugly.

The Implications of Misuse

The misuse of “enjoin” and “enjoinder” in place of “join” and “joinder” can have several detrimental consequences, which may include the following:

1. Confusion in legal discourse: Legal professionals rely on precise terminology to communicate effectively. Misusing these terms can lead to misunderstandings and legal ambiguities.
2. Procedural errors: In court proceedings, the improper use of these terms can lead to procedural errors, such as misinterpretations of motions and petitions.
3. Inefficiency: Legal proceedings may become inefficient as a result of this linguistic confusion. Judges and lawyers waste valuable time correcting and clarifying terminology.
4. Diminished clarity: The overall clarity and professionalism of court documents and discussions may suffer, potentially undermining the credibility of the legal system.

A call for correct usage

Precision, correctness, clarity, and consistency in language is the cornerstone of the legal profession. Misusing terms like “enjoin” and “enjoinder” not only violates this principle but also jeopardizes the fairness and efficiency of the Kenyan legal system. It is the responsibility of legal professionals to adhere to proper terminology, ensuring that justice is served, and the rule of law prevails. To uphold the integrity of the Kenyan legal system, it is imperative that legal practitioners and legal scholars, as well as judges, use the correct terminology.

There is an urgent need for law students, legal practitioners, legal scholars, and judges in Kenya to utilise precise terminology and eliminate the misuse of “enjoin” and “enjoinder” in place of “join” and “joinder.”  Such a correction is not only essential for maintaining the integrity of legal language, but also for upholding the efficiency and credibility of the Kenyan legal system.

Now you know. Stay informed, and make the change.