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(Being an appeal from the Ruling delivered by Hon. Kurumbu (PM) on 20th November 2023 in Thika Civil Case No. 743 of 2021)
1. This is an appeal against the Ruling delivered on 20th November 2023 in Thika Civil Case No. 743 of 2021. In the trial court, the Appellant filed an application dated 2nd June 2023 (“the Application”) seeking leave to issue Third Party Notices to certain intended parties. The Application was premised on the grounds that the Appellant was an employee of the Respondent tasked with supplying garlic and onions to customers on the Respondent’s behalf. The Appellant claims that most of the customers were personally known to him and he had been authorized to supply them with goods on credit. However, they failed to settle their outstanding debts, which amounted to Kshs. 2,384,000/=. He therefore argued that these customers were liable to contribution or indemnity and that their liability should be determined alongside the dispute between him and the Respondent.
2. The Respondent opposed the Application through a Replying Affidavit sworn on 7th June 2023. He argued that the Appellant had not provided any specific or discernible evidence showing how the intended third parties were indebted to him. Additionally, he contended that no notice had been issued to any of the proposed third parties regarding the nature of their intended involvement or the specific amounts claimed against them.
3. After considering the parties’ submissions, the trial court dismissed the Application. The trial court found that, despite listing thirty intended third parties, the Appellant had not produced any statement or document establishing a connection between those individuals and either the Appellant’s role as Defendant or to the Respondent’s claim against him. The court further held that no cause of action had been disclosed against any of the intended third parties, whether in relation to the Appellant or the Respondent.
4. Dissatisfied with the Ruling the Appellant filed this appeal on the grounds that the Learned Magistrate erred in law in failing to grant leave to issue Third Party Notice as required by law; directing that the Appellant’s application be heard interpartes when it was an ex parte application; dismissing the Appellant’s application to join a third parties thereby denying the Appellant his legal right as provided by the law; dismissing the Appellant’s right to seek contribution and indemnity against third parties; prematurely dismissing the Appellant’s intended claim against the third parties before any third party notice had been issued or served.
5. The Appellant now seeks that t the ruling of the subordinate court be set aside and that the appeal be allowed with costs.
6. The appeal was canvassed by way of written submissions pursuant to the directions of the Court. The Appellant submissions are dated 24th July 2024 while the Respondent’s submissions are dated 9th September 2024.
Appellant’s submissions
7. The Appellant presented the background of the case and submitted that pursuant to Order 1 Rule 15(1) of the Civil Procedure Rules he was entitled to seek leave to institute third party proceedings against the intended third parties. He emphasized that the application was not an afterthought as the issue had already been raised in the defence. In support of his position he cited the case of Hass Petroleum Limited v Lota Engineering and Construction Limited (Formally Lota Excavations and Rentals Ltd) (2021)eKLR arguing that the judicial approach to third party proceedings is a liberal. This approach allows parties an opportunity to prove their claim, and does not hinge on the existence of privity of contract when determining whether such proceedings may be initiated and sustained.
8. To further support the merit of the appeal, the Appellant, relied on Kenya Commercial Bank vs Suntra Investment Bank (2015) eKLR where the court held that a third party may be enjoined in a suit at the instance of the defendant, following the procedures outlined under Order 1 rule 15 to 22 of the Civil Procedure Rules. The court clarified that liability between the defendant and the third party is determined between those parties, but only after the court is satisfied that there exists a proper question to be tried regarding the third party’s liability and has issued directions under Order 1 Rule 22 of the Civil Procedure Rules.”
9. Accordingly, the Appellant prayed that the appeal be allowed and the orders of the trial court be set aside.
Respondent’s submissions
10. In response to Ground 2 of the appeal, the Respondent submitted that, ex parte applications are generally reserved for urgent matters and often result in temporary orders pending an inter partes hearing at a later date. He argued that, as the plaintiff in the suit, he was entitled to be heard on any application filed in the matter. He further noted that the Appellant’s counsel did not raise any objection before the trial court regarding the application being heard inter partes. As such, he contended that raising the issue for the first time on appeal was misguided. The Respondent maintained that the trial court did not err in directing that the application be heard inter partes.
11. On Grounds 1, 3, 4, 5, and 6 of the appeal, the Respondent, relied on Order 1 Rule 15 of the Civil Procedure Rules and the decision in Interactive Advertising Limited & Another v Equity Bank Limited & 2 Others. He submitted that third party applications should not be filed frivolously merely because the Rules allow joinder. He argued that the Appellant failed to establish any meaningful nexus between the intended third parties and the dispute between the parties to the suit. In his view, merely listing individuals as customers who purchased onions on credit and asserting that they should indemnify the Appellant was insufficient. The Respondent further submitted that the Appellant failed to specify the extent of each intended third party’s alleged liability for purposes of contribution or indemnity, or to disclose when the debts, if any, accrued.
12. He argued that the dispute between himself and the Appellant arose solely from an agreement in which the Appellant acknowledged owing money, and that this had no connection with the third-party application. While citing the case of Kenya Commercial Bank v Suntra Investment Bank [2015] eKLR, he argued that the trial court properly assessed whether there was a triable issue on liability and, finding none, correctly dismissed the application. He also pointed out that some of the intended third parties were identified by a single name. Relying on Kingori v Chege & 3 Others [2002] 2 KLR 243, he submitted that the 2nd, 24th, 26th and 27th intended third parties were not properly identified, thereby rendering the application defective.
13. In conclusion, the Respondent urged that the appeal be dismissed with costs.
Analysis and Determination
14. This being a first appeal, this court is under a duty to re-evaluate and reassess the evidence on record and make its own independent conclusions. However, it must bear that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424).
15. Upon careful analysis of the record of appeal and the Appellant’s submissions, the major issues for determination are;
a. Whether the trial court erred in declining to grant leave to the Appellant to issue third party notices.
b. Whether the trial court erred by directing that the Appellant’s application for third party proceedings be heard inter partes instead of ex parte.
c. Whether the Appellant’s application for third party proceedings was filed within the timelines prescribed under Order 1 Rule 15 of the Civil Procedure Rules.
d. Whether the Appellant established a legal basis for contribution or indemnity from the intended third parties.
Whether the trial court erred in declining to grant leave to the Appellant to issue third party notices.
16. the law governing, third Party Proceedings is set out under Order 1 Rule 15 of the Civil procedure Rules which provides as follows:-
“15 (1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party) —
(a)that he is entitled to contribution or indemnity; or
(b)that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or
17. From the above, provision, a defendant may apply to issue a third party notice if they seek contribution, indemnity, or a determination of an issue substantially connected to the subject matter of the suit.
18. In this case, the Appellant’s position was that he supplied goods on behalf of the Respondent, some of which were sold on credit. He claimed that the unpaid sums owed by certain customers, whom he sought to join as third parties, formed the basis for their enjoinment. However, the trial court found that the Appellant had not provided any documentary or evidential material demonstrating how those thirty customers were connected either to the Respondent’s claim or to the Appellant’s liability. In the absence of such evidence, the trial court held that no cause of action had been disclosed against the intended third parties.
19. In the case of Kenya Commercial Bank vs Suntra Investment Bank Ltd (2015) eKLR, the Court held that;
“In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 rule 15 – 22 of the Civil Procedure Rules. And, liability between the Defendant and the third party is determined between the Defendant and the third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the Defendant, and has given directions under Order 1 rule 22 of the Civil Procedure Rules.”
20. Applying this principle to the present case, the Appellant was required to demonstrate, at least on a prima facie basis, that the listed customers were directly liable to him for contribution or indemnity in relation to the Respondent’s claim. However, the application merely listed thirty names without providing particulars, supporting documents or specific evidence linking each intended third party to the Appellant’s liability.
21. In the absence of a proper question to be tried, as required under the Civil Procedure Rules and as emphasized in Suntra’s case above, the trial court was justified in dismissing the application.
Whether the trial court erred by directing that the Appellant’s application for third party proceedings be heard inter partes instead of ex parte.
22. The Appellant contended that the trial court erred in directing that the application for leave to issue third party notices be heard inter partes rather than ex parte. While Order 1 Rule 15 does contemplate that such leave may be sought ex parte, courts retain discretion to direct an inter partes hearing, especially where the application may affect the rights of existing parties.
23. The Respondent correctly submitted that ex parte proceedings are generally reserved for urgent or interim reliefs. Moreover, the record shows that the Appellant did not object at the trial stage to the matter being heard inter partes. Raising the issue for the first time on appeal is therefore This ground of appeal lacks merit.
Whether the Appellant’s application for third party proceedings was filed within the timelines prescribed under Order 1 Rule 15 of the Civil Procedure Rules.
24. Order 1 Rule 15 (c)of the Civil procedure Rules which provides as follows :-
(c) that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit.”
25. Order 1 Rule 15( c) of the Civil Procedure Rules provides that an application for leave to issue a third party notice must be made within 14 days after the close of pleadings. In this case, the last pleading, the Appellant’s defence was filed on 9th January 2023. Accordingly, any application for third party proceedings ought to have been filed by 23rd January 2023.
26. The Appellant’s application was filed on 2nd June 2023, nearly six months after close of pleadings. No sufficient explanation was offered for this delay. This procedural lapse alone disentitles the Appellant to the discretionary relief of leave to issue third party notice.
Whether the Appellant established a legal basis for contribution or indemnity from the intended third parties.
27. Even if the application had been filed within time, the Appellant was still required to demonstrate a legal basis for contribution or indemnity. The application merely listed thirty names without providing particulars, supporting documentation, or evidence of indebtedness. Some of the intended parties were identified only by a single name, raising question about their proper identification and legal standing.
28. The failure to provide details such as the nature of the debt, when they accrued, or how they relate to the Respondent’s claim meant that the trial court was justified in finding that no prima facie case had been established against the intended third parties.
29. It is a well-established principle that appellate courts will not interfere with the discretionary decisions of a trial court unless it is shown that the discretion was exercised on the wrong principles or that the decision was plainly wrong. In this case, the trial court carefully evaluated the evidence, applied the law under Order 1 Rule 15, and properly exercised its discretion in declining leave. The Appellant has not demonstrated any misdirection or error of principle.
30. The Appellant’s application was procedurally and substantively defective. It was filed outside the prescribed timelines, lacked evidentiary support and failed to establish a nexus between the intended third parties and the Respondent’s claim. The complaint regarding the hearing format is unfounded. This Court finds no reason to interfere with the trial court’s decision.
31. Accordingly, the appeal is devoid of merit and is dismissed with costs to the Respondent.
Orders accordingly.
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(Being an appeal from the Ruling delivered by Hon. Kurumbu (PM) on 20th November 2023 in Thika Civil Case No. 743 of 2021)
1. This is an appeal against the Ruling delivered on 20th November 2023 in Thika Civil Case No. 743 of 2021. In the trial court, the Appellant filed an application dated 2nd June 2023 (“the Application”) seeking leave to issue Third Party Notices to certain intended parties. The Application was premised on the grounds that the Appellant was an employee of the Respondent tasked with supplying garlic and onions to customers on the Respondent’s behalf. The Appellant claims that most of the customers were personally known to him and he had been authorized to supply them with goods on credit. However, they failed to settle their outstanding debts, which amounted to Kshs. 2,384,000/=. He therefore argued that these customers were liable to contribution or indemnity and that their liability should be determined alongside the dispute between him and the Respondent.
2. The Respondent opposed the Application through a Replying Affidavit sworn on 7th June 2023. He argued that the Appellant had not provided any specific or discernible evidence showing how the intended third parties were indebted to him. Additionally, he contended that no notice had been issued to any of the proposed third parties regarding the nature of their intended involvement or the specific amounts claimed against them.
3. After considering the parties’ submissions, the trial court dismissed the Application. The trial court found that, despite listing thirty intended third parties, the Appellant had not produced any statement or document establishing a connection between those individuals and either the Appellant’s role as Defendant or to the Respondent’s claim against him. The court further held that no cause of action had been disclosed against any of the intended third parties, whether in relation to the Appellant or the Respondent.
4. Dissatisfied with the Ruling the Appellant filed this appeal on the grounds that the Learned Magistrate erred in law in failing to grant leave to issue Third Party Notice as required by law; directing that the Appellant’s application be heard interpartes when it was an ex parte application; dismissing the Appellant’s application to join a third parties thereby denying the Appellant his legal right as provided by the law; dismissing the Appellant’s right to seek contribution and indemnity against third parties; prematurely dismissing the Appellant’s intended claim against the third parties before any third party notice had been issued or served.
5. The Appellant now seeks that t the ruling of the subordinate court be set aside and that the appeal be allowed with costs.
6. The appeal was canvassed by way of written submissions pursuant to the directions of the Court. The Appellant submissions are dated 24th July 2024 while the Respondent’s submissions are dated 9th September 2024.
Appellant’s submissions
7. The Appellant presented the background of the case and submitted that pursuant to Order 1 Rule 15(1) of the Civil Procedure Rules he was entitled to seek leave to institute third party proceedings against the intended third parties. He emphasized that the application was not an afterthought as the issue had already been raised in the defence. In support of his position he cited the case of Hass Petroleum Limited v Lota Engineering and Construction Limited (Formally Lota Excavations and Rentals Ltd) (2021)eKLR arguing that the judicial approach to third party proceedings is a liberal. This approach allows parties an opportunity to prove their claim, and does not hinge on the existence of privity of contract when determining whether such proceedings may be initiated and sustained.
8. To further support the merit of the appeal, the Appellant, relied on Kenya Commercial Bank vs Suntra Investment Bank (2015) eKLR where the court held that a third party may be enjoined in a suit at the instance of the defendant, following the procedures outlined under Order 1 rule 15 to 22 of the Civil Procedure Rules. The court clarified that liability between the defendant and the third party is determined between those parties, but only after the court is satisfied that there exists a proper question to be tried regarding the third party’s liability and has issued directions under Order 1 Rule 22 of the Civil Procedure Rules.”
9. Accordingly, the Appellant prayed that the appeal be allowed and the orders of the trial court be set aside.
Respondent’s submissions
10. In response to Ground 2 of the appeal, the Respondent submitted that, ex parte applications are generally reserved for urgent matters and often result in temporary orders pending an inter partes hearing at a later date. He argued that, as the plaintiff in the suit, he was entitled to be heard on any application filed in the matter. He further noted that the Appellant’s counsel did not raise any objection before the trial court regarding the application being heard inter partes. As such, he contended that raising the issue for the first time on appeal was misguided. The Respondent maintained that the trial court did not err in directing that the application be heard inter partes.
11. On Grounds 1, 3, 4, 5, and 6 of the appeal, the Respondent, relied on Order 1 Rule 15 of the Civil Procedure Rules and the decision in Interactive Advertising Limited & Another v Equity Bank Limited & 2 Others. He submitted that third party applications should not be filed frivolously merely because the Rules allow joinder. He argued that the Appellant failed to establish any meaningful nexus between the intended third parties and the dispute between the parties to the suit. In his view, merely listing individuals as customers who purchased onions on credit and asserting that they should indemnify the Appellant was insufficient. The Respondent further submitted that the Appellant failed to specify the extent of each intended third party’s alleged liability for purposes of contribution or indemnity, or to disclose when the debts, if any, accrued.
12. He argued that the dispute between himself and the Appellant arose solely from an agreement in which the Appellant acknowledged owing money, and that this had no connection with the third-party application. While citing the case of Kenya Commercial Bank v Suntra Investment Bank [2015] eKLR, he argued that the trial court properly assessed whether there was a triable issue on liability and, finding none, correctly dismissed the application. He also pointed out that some of the intended third parties were identified by a single name. Relying on Kingori v Chege & 3 Others [2002] 2 KLR 243, he submitted that the 2nd, 24th, 26th and 27th intended third parties were not properly identified, thereby rendering the application defective.
13. In conclusion, the Respondent urged that the appeal be dismissed with costs.
Analysis and Determination
14. This being a first appeal, this court is under a duty to re-evaluate and reassess the evidence on record and make its own independent conclusions. However, it must bear that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424).
15. Upon careful analysis of the record of appeal and the Appellant’s submissions, the major issues for determination are;
a. Whether the trial court erred in declining to grant leave to the Appellant to issue third party notices.
b. Whether the trial court erred by directing that the Appellant’s application for third party proceedings be heard inter partes instead of ex parte.
c. Whether the Appellant’s application for third party proceedings was filed within the timelines prescribed under Order 1 Rule 15 of the Civil Procedure Rules.
d. Whether the Appellant established a legal basis for contribution or indemnity from the intended third parties.
Whether the trial court erred in declining to grant leave to the Appellant to issue third party notices.
16. the law governing, third Party Proceedings is set out under Order 1 Rule 15 of the Civil procedure Rules which provides as follows:-
“15 (1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party) —
(a)that he is entitled to contribution or indemnity; or
(b)that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or
17. From the above, provision, a defendant may apply to issue a third party notice if they seek contribution, indemnity, or a determination of an issue substantially connected to the subject matter of the suit.
18. In this case, the Appellant’s position was that he supplied goods on behalf of the Respondent, some of which were sold on credit. He claimed that the unpaid sums owed by certain customers, whom he sought to join as third parties, formed the basis for their enjoinment. However, the trial court found that the Appellant had not provided any documentary or evidential material demonstrating how those thirty customers were connected either to the Respondent’s claim or to the Appellant’s liability. In the absence of such evidence, the trial court held that no cause of action had been disclosed against the intended third parties.
19. In the case of Kenya Commercial Bank vs Suntra Investment Bank Ltd (2015) eKLR, the Court held that;
“In law, a third party is enjoined in a suit at the instance of the Defendant and through the set procedure under Order 1 rule 15 – 22 of the Civil Procedure Rules. And, liability between the Defendant and the third party is determined between the Defendant and the third party, but of course, after the court is satisfied that there is a proper question to be tried as to liability of the third party and the Defendant, and has given directions under Order 1 rule 22 of the Civil Procedure Rules.”
20. Applying this principle to the present case, the Appellant was required to demonstrate, at least on a prima facie basis, that the listed customers were directly liable to him for contribution or indemnity in relation to the Respondent’s claim. However, the application merely listed thirty names without providing particulars, supporting documents or specific evidence linking each intended third party to the Appellant’s liability.
21. In the absence of a proper question to be tried, as required under the Civil Procedure Rules and as emphasized in Suntra’s case above, the trial court was justified in dismissing the application.
Whether the trial court erred by directing that the Appellant’s application for third party proceedings be heard inter partes instead of ex parte.
22. The Appellant contended that the trial court erred in directing that the application for leave to issue third party notices be heard inter partes rather than ex parte. While Order 1 Rule 15 does contemplate that such leave may be sought ex parte, courts retain discretion to direct an inter partes hearing, especially where the application may affect the rights of existing parties.
23. The Respondent correctly submitted that ex parte proceedings are generally reserved for urgent or interim reliefs. Moreover, the record shows that the Appellant did not object at the trial stage to the matter being heard inter partes. Raising the issue for the first time on appeal is therefore This ground of appeal lacks merit.
Whether the Appellant’s application for third party proceedings was filed within the timelines prescribed under Order 1 Rule 15 of the Civil Procedure Rules.
24. Order 1 Rule 15 (c)of the Civil procedure Rules which provides as follows :-
(c) that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit.”
25. Order 1 Rule 15( c) of the Civil Procedure Rules provides that an application for leave to issue a third party notice must be made within 14 days after the close of pleadings. In this case, the last pleading, the Appellant’s defence was filed on 9th January 2023. Accordingly, any application for third party proceedings ought to have been filed by 23rd January 2023.
26. The Appellant’s application was filed on 2nd June 2023, nearly six months after close of pleadings. No sufficient explanation was offered for this delay. This procedural lapse alone disentitles the Appellant to the discretionary relief of leave to issue third party notice.
Whether the Appellant established a legal basis for contribution or indemnity from the intended third parties.
27. Even if the application had been filed within time, the Appellant was still required to demonstrate a legal basis for contribution or indemnity. The application merely listed thirty names without providing particulars, supporting documentation, or evidence of indebtedness. Some of the intended parties were identified only by a single name, raising question about their proper identification and legal standing.
28. The failure to provide details such as the nature of the debt, when they accrued, or how they relate to the Respondent’s claim meant that the trial court was justified in finding that no prima facie case had been established against the intended third parties.
29. It is a well-established principle that appellate courts will not interfere with the discretionary decisions of a trial court unless it is shown that the discretion was exercised on the wrong principles or that the decision was plainly wrong. In this case, the trial court carefully evaluated the evidence, applied the law under Order 1 Rule 15, and properly exercised its discretion in declining leave. The Appellant has not demonstrated any misdirection or error of principle.
30. The Appellant’s application was procedurally and substantively defective. It was filed outside the prescribed timelines, lacked evidentiary support and failed to establish a nexus between the intended third parties and the Respondent’s claim. The complaint regarding the hearing format is unfounded. This Court finds no reason to interfere with the trial court’s decision.
31. Accordingly, the appeal is devoid of merit and is dismissed with costs to the Respondent.
Orders accordingly.
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