' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E073 OF 2022
INTRA AFRICA ASSURANCE CO. LTD………………..APPELLANT
VERSUS
JOSEPH BLAME AMUYE ( SUING ON BEHALF OF DENIS MUTISO AMUYE (DECEASED)……………………………….1 ST RESPONDENT
CHAIRMAN BOARD OF MANAGEMENT ………2 ND RESPONDENT
SECRETARY BOARD OF MANAGEMENT….….3 RD RESPONDENT
FRIENDS SCHOOL KAMUSINGA………………..4 TH RESPONDENT
(An Appeal from the Ruling of the Hon. Caroline M. Wattimah SRM delivered on 20th July 2022 in Sirisia SPMC No. 42 of 2018)
JUDGMENT
The 1st Respondent sued the 2nd, 3rd, and 4th Respondents for general and special damages concerning the estate of his son, who passed away on the 29th of February 2016 while attending a swimming lesson.
The 2nd, 3rd, and 4th Respondents were the defendants in the suit before the lower court. They filed a joint defence dated 8th February 2019, denying the 1st respondent’s claim.
After the close of pleadings, the 2nd, 3rd, and 4th Respondents filed an application dated 8th April 2019, brought under Order 21, Rule 9, and Order 1, Rule 15 of the Cap 21 Laws of Kenya. They sought to have Intra Africa Assurance Co. Ltd. enjoined as a co-defendant in the proceedings. The grounds for the application were that the suit was based on the plaint and concerned the insurance contractual relationship between the respondent and the third-party assurance company. They argued that, for justice to be served, any orders issued by the court might need to be executed against the third party. The third party had been duly informed about the cause of the accident and death. The application was made in good faith, and it is in the interest of justice that the orders sought be granted.
On 23rd May 2019, the 1st Respondent and the 2nd, 3rd, and 4th Respondents adopted the consent as an order of the court. The consent is dated 23rd May 2019 and states as follows: “That by consent, the third party by description Intra Africa Assurance Co. Ltd be and is hereby enjoined to the proceedings as co-defendant. And that costs be in the course.”
The Appellant filed an application dated 16th June 2021, seeking to have the consent dated 23rd May 2019 set aside, and that the name of Intra Africa Assurance Co. Ltd, enjoined as a co-defendant, be struck off from the proceedings, and that the costs of the application be provided for.
The application was heard, and in a ruling dated 20th July 2022, the Trial Magistrate held that the suit was still pending pre-trial directions, had not been scheduled for hearing, and that the applicant would not suffer any prejudice since the suit had not commenced. This ruling is the subject of this appeal.
The Appellant’s grounds of appeal are as follows:
That the Learned Magistrate erred in Law and fact in dismissing the appellant''s application dated 16/6/2022 seeking to strike out the Appellant as a co-defendant.
2. That the Learned Magistrate erred in law and fact in failing to
consider that the Appellant was brought into this suit without any
reasonable cause of action.
3. That the Learned Magistrate erred in law and fact in failing to
consider that the Appellant was never served with the application
dated 8 th April, 2019 seeking to join the Appellant as co-defendant.
4. That the Learned Magistrate erred in law and fact in failing to
consider and appreciate that the respondents erroneously and procedurally joined the appellant to the suit vide consent dated 23 rd May 2017 without the appellant’s approval and/or consent since the application for joinder was never served upon the appellant.
5. That the learned trial magistrate erred in law and fact in failing to consider appreciate the move by the respondent to erroneously
consenting to join the appellant without its consent, offends the rules of Natural justice.
6. That the learned Magistrate erred in law and fact in failing to consider that the appellant has been sued wrongly as a party in the suit and has not been mentioned anywhere in the pleadings on record.
7. That the learned Magistrate erred in law and fact in failing to consider and appreciate that the respondents have not demonstrated the appellant’s liability in the claim, since there is no cause of action against the appellant herein.
8. That the learned trial magistrate erred in law and fact in failing to
consider the appellant’s submissions and the authorities supplied to
court hence an erroneous decision.
The Appellant requests that the Ruling be set aside and, in its place, an order to strike out the consent dated 23rd May 2019 and to remove the appellant as a co-defendant from the proceedings, while also seeking costs of the Appeal.
Parties canvassed the Appeal by way of written submissions. The Appellant and 1st Respondent filed written submissions; the 2nd, 3rd, and 4th Respondents did not file written submissions. The appellants submitted that the issues for determination are as follows; Whether the 1 st Respondent has an insurable interest in the policy.
Whether there is privity of contract between the 1 st Respondent and the Appellant
Whether the Appellant was wrongfully joined into suit
Whether the 1 st Respondent has a reasonable cause of action against the Appellant who should bear the costs of the Appeal.
Regarding the first issue, it was submitted that the Appellant has insurance with the 4th Respondent, not the 1st Respondent, and no insurable interest can attach to the 1st Respondent. The insurable interest is not transferable to a third party (see Section 94 of the Insurance Act (Chapter 487 Laws of Kenya)). Concerning the second issue, it was argued that the doctrine of privity of contract holds that a contract cannot confer rights or impose obligations on anyone other than the parties involved. The appellant relied on several authorities supporting its view that only a person who is a party to a contract can sue on it (see Savings & Loan (K) Limited vs Kanyenje Karangatia Gakombe & Another [2015] eKLR, Agricultural Finance Corporation vs Lengetia Ltd [1985] KLR 765, Kenya National Capital Corporation Ltd vs Albert Maro Corderio & another, CA, NO 274 of 2003, and William Muthee Muthami vs Bank of Baroda CA, NO 91 of 2004). It was further argued that, lacking privity of contract, the 1st Respondent cannot claim to sue on the insurance policy. The 4th Respondent is the sole entity capable of suing on the insurance contract through a declaratory suit if judgment is entered against them. On the third issue, it was submitted that Order 1 Rule 3 provides for those who may be joined as defendants to a suit. The plaint does not mention or claim against the Appellant. There is no cause of action against the Appellant; therefore, they were wrongly joined as co-defendants and should be struck off. They were not part of the consent recorded by the Respondents. A consent cannot bind a third party; reliance was placed on the case of Julius Kigen Kibiego vs Angeline Korir & Another [2012] eKLR, which held that parties to a contract cannot involve a third party without their consent, as this contravenes the doctrine of privity of contract. An agreement attempting to bind a third party without their consent cannot be binding on that third party. Regarding the fourth issue, it was submitted that in the plaint dated 15th November 2018, the Appellant is not named as a party, nor is there any specific allegation or relief sought against it. The cause of action resides with the other Respondents, and there is none against the Appellant. Finally, on the last issue, it was submitted that costs follow the cause or event unless the court is satisfied otherwise.
The 1st Respondent submitted as follows: the two issues for determination are whether the Appellant was wrongly joined into the suit and who should bear the costs of the appeal. Regarding the first issue, it was submitted that the 1st Respondent needs to be compensated as the father of the deceased, which is why the Appellant is involved. The Appellant was not initially a party to the suit, but the consent between the 1st Respondent and the 4th Respondent brought the Appellant into the matter. It was further submitted that the deceased was a student at the 4th Respondent’s institution and was a potential beneficiary under the policy. There are exceptions to the privity of contract doctrine that enable beneficiaries of such contracts through third parties to enforce a contract under which they stand to benefit. For this argument, the 1st Respondent relied on the case of Aineah Liluyani Nijrah vs Aga Khan Health Services [2013] eKLR. The 1st Respondent argued that the deceased, whom the 1st Respondent represents, is a beneficiary of the policy and therefore capable of enforcing the contract. On who should bear the costs, it was submitted that costs should be granted to the 1st Respondent. The 1st Respondent’s final argument was that, in the interest of justice to the parties, pursuant to Article 159(2) (a) & (d) of the Constitution of Kenya and Sections 3A and 3B of the Appellant Jurisdiction Act, the ruling of the lower court should stand as it is, as the involvement of the Appellant in the proceedings will aid in serving justice to the 1st Respondent.
ANALYSIS AND DETERMINATION
As this is a first appeal, this court is duty-bound to re-evaluate and reconsider the evidence on record and reach its own independent conclusion. It must also bear in mind that, unlike the trial court, it did not observe or hear the witnesses. This was stated in the case of Selle & another v. Associated Motor Boat Co. Ltd & others (1968) E.A 123.
I have considered the submissions, pleadings filed by the parties, the application filed by the Appellant in the lower court, and the Ruling subject to the Appeal, including relevant provisions of law concerning third parties and co-defendants. The issue for determination is whether the order that joined the appellant can be set aside. To resolve this, it is necessary to examine the pleadings filed by the 1st respondent in the lower court. The 1st respondent initiated the case. The 2nd, 3rd, and 4th respondents are defendants. The 1st respondent’s claim seeks general damages for the death of their child, who drowned. The appellant was a party in the suit filed in CMCC No. 420 of 2018. The appellant is a licensed insurance company offering both individual and corporate solutions. As correctly submitted, the 1st Respondent is not privy to the contract between the appellant and the 4th Respondent. The insurable interest cannot be transferred to a third party. It was wrong to join the appellant to the suit through consent, as was done in this case. There are legal avenues to pursue the appellant for any award granted to the 1st respondent. The consent filed by the respondents cannot, in my view, bind the appellant. Therefore, I find that the consent dated 23rd May 2019 between the 1st and 2nd Respondents cannot bind the appellant; it was irregular and must be set aside. What transpired was unlawful and should not be encouraged. Accordingly, I find that the appeal is merited. I set aside the consent dated 23rd May 2019, strike out the appellants from the proceedings, and set aside the lower court Ruling dated 20th July 2022. The appeal is allowed as prayed, and costs are awarded to the appellant. I apologise for the delay in delivering this judgment, which was due to the pressure of work I have faced from July 2024 to date. The delay was not intentional. I thank the parties for their patience.
Dated, signed and delivered at Bungoma on the 14 th October 2025.
R.E.OUGO
JUDGE
In presence of:
Appellant - Absent
1 st Respondent – Absent
2 nd to 4 th Respondents - Absent; Wilkister - C/A
'
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E073 OF 2022
INTRA AFRICA ASSURANCE CO. LTD………………..APPELLANT
VERSUS
JOSEPH BLAME AMUYE ( SUING ON BEHALF OF DENIS MUTISO AMUYE (DECEASED)……………………………….1 ST RESPONDENT
CHAIRMAN BOARD OF MANAGEMENT ………2 ND RESPONDENT
SECRETARY BOARD OF MANAGEMENT….….3 RD RESPONDENT
FRIENDS SCHOOL KAMUSINGA………………..4 TH RESPONDENT
(An Appeal from the Ruling of the Hon. Caroline M. Wattimah SRM delivered on 20th July 2022 in Sirisia SPMC No. 42 of 2018)
JUDGMENT
The 1st Respondent sued the 2nd, 3rd, and 4th Respondents for general and special damages concerning the estate of his son, who passed away on the 29th of February 2016 while attending a swimming lesson.
The 2nd, 3rd, and 4th Respondents were the defendants in the suit before the lower court. They filed a joint defence dated 8th February 2019, denying the 1st respondent’s claim.
After the close of pleadings, the 2nd, 3rd, and 4th Respondents filed an application dated 8th April 2019, brought under Order 21, Rule 9, and Order 1, Rule 15 of the Cap 21 Laws of Kenya. They sought to have Intra Africa Assurance Co. Ltd. enjoined as a co-defendant in the proceedings. The grounds for the application were that the suit was based on the plaint and concerned the insurance contractual relationship between the respondent and the third-party assurance company. They argued that, for justice to be served, any orders issued by the court might need to be executed against the third party. The third party had been duly informed about the cause of the accident and death. The application was made in good faith, and it is in the interest of justice that the orders sought be granted.
On 23rd May 2019, the 1st Respondent and the 2nd, 3rd, and 4th Respondents adopted the consent as an order of the court. The consent is dated 23rd May 2019 and states as follows: “That by consent, the third party by description Intra Africa Assurance Co. Ltd be and is hereby enjoined to the proceedings as co-defendant. And that costs be in the course.”
The Appellant filed an application dated 16th June 2021, seeking to have the consent dated 23rd May 2019 set aside, and that the name of Intra Africa Assurance Co. Ltd, enjoined as a co-defendant, be struck off from the proceedings, and that the costs of the application be provided for.
The application was heard, and in a ruling dated 20th July 2022, the Trial Magistrate held that the suit was still pending pre-trial directions, had not been scheduled for hearing, and that the applicant would not suffer any prejudice since the suit had not commenced. This ruling is the subject of this appeal.
The Appellant’s grounds of appeal are as follows:
That the Learned Magistrate erred in Law and fact in dismissing the appellant''s application dated 16/6/2022 seeking to strike out the Appellant as a co-defendant.
2. That the Learned Magistrate erred in law and fact in failing to
consider that the Appellant was brought into this suit without any
reasonable cause of action.
3. That the Learned Magistrate erred in law and fact in failing to
consider that the Appellant was never served with the application
dated 8 th April, 2019 seeking to join the Appellant as co-defendant.
4. That the Learned Magistrate erred in law and fact in failing to
consider and appreciate that the respondents erroneously and procedurally joined the appellant to the suit vide consent dated 23 rd May 2017 without the appellant’s approval and/or consent since the application for joinder was never served upon the appellant.
5. That the learned trial magistrate erred in law and fact in failing to consider appreciate the move by the respondent to erroneously
consenting to join the appellant without its consent, offends the rules of Natural justice.
6. That the learned Magistrate erred in law and fact in failing to consider that the appellant has been sued wrongly as a party in the suit and has not been mentioned anywhere in the pleadings on record.
7. That the learned Magistrate erred in law and fact in failing to consider and appreciate that the respondents have not demonstrated the appellant’s liability in the claim, since there is no cause of action against the appellant herein.
8. That the learned trial magistrate erred in law and fact in failing to
consider the appellant’s submissions and the authorities supplied to
court hence an erroneous decision.
The Appellant requests that the Ruling be set aside and, in its place, an order to strike out the consent dated 23rd May 2019 and to remove the appellant as a co-defendant from the proceedings, while also seeking costs of the Appeal.
Parties canvassed the Appeal by way of written submissions. The Appellant and 1st Respondent filed written submissions; the 2nd, 3rd, and 4th Respondents did not file written submissions. The appellants submitted that the issues for determination are as follows; Whether the 1 st Respondent has an insurable interest in the policy.
Whether there is privity of contract between the 1 st Respondent and the Appellant
Whether the Appellant was wrongfully joined into suit
Whether the 1 st Respondent has a reasonable cause of action against the Appellant who should bear the costs of the Appeal.
Regarding the first issue, it was submitted that the Appellant has insurance with the 4th Respondent, not the 1st Respondent, and no insurable interest can attach to the 1st Respondent. The insurable interest is not transferable to a third party (see Section 94 of the Insurance Act (Chapter 487 Laws of Kenya)). Concerning the second issue, it was argued that the doctrine of privity of contract holds that a contract cannot confer rights or impose obligations on anyone other than the parties involved. The appellant relied on several authorities supporting its view that only a person who is a party to a contract can sue on it (see Savings & Loan (K) Limited vs Kanyenje Karangatia Gakombe & Another [2015] eKLR, Agricultural Finance Corporation vs Lengetia Ltd [1985] KLR 765, Kenya National Capital Corporation Ltd vs Albert Maro Corderio & another, CA, NO 274 of 2003, and William Muthee Muthami vs Bank of Baroda CA, NO 91 of 2004). It was further argued that, lacking privity of contract, the 1st Respondent cannot claim to sue on the insurance policy. The 4th Respondent is the sole entity capable of suing on the insurance contract through a declaratory suit if judgment is entered against them. On the third issue, it was submitted that Order 1 Rule 3 provides for those who may be joined as defendants to a suit. The plaint does not mention or claim against the Appellant. There is no cause of action against the Appellant; therefore, they were wrongly joined as co-defendants and should be struck off. They were not part of the consent recorded by the Respondents. A consent cannot bind a third party; reliance was placed on the case of Julius Kigen Kibiego vs Angeline Korir & Another [2012] eKLR, which held that parties to a contract cannot involve a third party without their consent, as this contravenes the doctrine of privity of contract. An agreement attempting to bind a third party without their consent cannot be binding on that third party. Regarding the fourth issue, it was submitted that in the plaint dated 15th November 2018, the Appellant is not named as a party, nor is there any specific allegation or relief sought against it. The cause of action resides with the other Respondents, and there is none against the Appellant. Finally, on the last issue, it was submitted that costs follow the cause or event unless the court is satisfied otherwise.
The 1st Respondent submitted as follows: the two issues for determination are whether the Appellant was wrongly joined into the suit and who should bear the costs of the appeal. Regarding the first issue, it was submitted that the 1st Respondent needs to be compensated as the father of the deceased, which is why the Appellant is involved. The Appellant was not initially a party to the suit, but the consent between the 1st Respondent and the 4th Respondent brought the Appellant into the matter. It was further submitted that the deceased was a student at the 4th Respondent’s institution and was a potential beneficiary under the policy. There are exceptions to the privity of contract doctrine that enable beneficiaries of such contracts through third parties to enforce a contract under which they stand to benefit. For this argument, the 1st Respondent relied on the case of Aineah Liluyani Nijrah vs Aga Khan Health Services [2013] eKLR. The 1st Respondent argued that the deceased, whom the 1st Respondent represents, is a beneficiary of the policy and therefore capable of enforcing the contract. On who should bear the costs, it was submitted that costs should be granted to the 1st Respondent. The 1st Respondent’s final argument was that, in the interest of justice to the parties, pursuant to Article 159(2) (a) & (d) of the Constitution of Kenya and Sections 3A and 3B of the Appellant Jurisdiction Act, the ruling of the lower court should stand as it is, as the involvement of the Appellant in the proceedings will aid in serving justice to the 1st Respondent.
ANALYSIS AND DETERMINATION
As this is a first appeal, this court is duty-bound to re-evaluate and reconsider the evidence on record and reach its own independent conclusion. It must also bear in mind that, unlike the trial court, it did not observe or hear the witnesses. This was stated in the case of Selle & another v. Associated Motor Boat Co. Ltd & others (1968) E.A 123.
I have considered the submissions, pleadings filed by the parties, the application filed by the Appellant in the lower court, and the Ruling subject to the Appeal, including relevant provisions of law concerning third parties and co-defendants. The issue for determination is whether the order that joined the appellant can be set aside. To resolve this, it is necessary to examine the pleadings filed by the 1st respondent in the lower court. The 1st respondent initiated the case. The 2nd, 3rd, and 4th respondents are defendants. The 1st respondent’s claim seeks general damages for the death of their child, who drowned. The appellant was a party in the suit filed in CMCC No. 420 of 2018. The appellant is a licensed insurance company offering both individual and corporate solutions. As correctly submitted, the 1st Respondent is not privy to the contract between the appellant and the 4th Respondent. The insurable interest cannot be transferred to a third party. It was wrong to join the appellant to the suit through consent, as was done in this case. There are legal avenues to pursue the appellant for any award granted to the 1st respondent. The consent filed by the respondents cannot, in my view, bind the appellant. Therefore, I find that the consent dated 23rd May 2019 between the 1st and 2nd Respondents cannot bind the appellant; it was irregular and must be set aside. What transpired was unlawful and should not be encouraged. Accordingly, I find that the appeal is merited. I set aside the consent dated 23rd May 2019, strike out the appellants from the proceedings, and set aside the lower court Ruling dated 20th July 2022. The appeal is allowed as prayed, and costs are awarded to the appellant. I apologise for the delay in delivering this judgment, which was due to the pressure of work I have faced from July 2024 to date. The delay was not intentional. I thank the parties for their patience.
Dated, signed and delivered at Bungoma on the 14 th October 2025.
R.E.OUGO
JUDGE
In presence of:
Appellant - Absent
1 st Respondent – Absent
2 nd to 4 th Respondents - Absent; Wilkister - C/A
'