Introduction
1. This Ruling determines the Plaintiff’s Preliminary Objection dated 2 April 2025, challenging the joinder of the 1st and 2nd Third Parties. The objection is premised on the ground that the 1st Defendant did not obtain leave of the Court as required under Order 1 Rule 15 of the Civil Procedure Rules, 2010, before issuing a third-party notice. The Plaintiff, therefore, seeks to have the Third Parties and their pleadings struck out.
2. The 1st Defendant opposed the objection through Grounds of Opposition dated 14 May 2025 and written submissions dated 28 July 2025, contending that the objection is misconceived, that directions to serve Third Party Notices were given by the Deputy Registrar on 15 July 2024, and that the Third Parties have since actively participated in the proceedings. The Defendant therefore urged this Court to dismiss the objection as a mere procedural technicality curable under Article 159(2)(d) of the Constitution.
3. The matter was canvassed by way of written submissions. The Plaintiff, through the law firm of Tito & Associates Advocates, filed its submissions dated 9th July 2025, whilst the 1st Defendant filed their submissions dated 28th July 2025, through Ondati Mogaka & Associates.
The Plaintiff’s Submissions
4. The Plaintiff in challenging contends that the 1st Defendant did not obtain leave of the Court as required under Order 1 Rule 15 of the Civil Procedure Rules, 2010 before issuing a third party notice. Counsel submitted that the Chamber Summons application dated 12th July 2024 seeking leave was never placed before a judge for determination and therefore remained undetermined.
5. The Plaintiff further argue that the directions given by the Deputy Registrar on 15th July 2024 to serve the third party notice were ultra vires, since the Deputy Registrar lacks jurisdiction under Order 49 of the Civil Procedure Rules to grant leave for third party proceedings. It further pointed out that 1st Defendant failed to comply with Order 1 Rule 22 of the Civil Procedure Rules, which requires a defendant to apply for directions once a third party has entered appearance.
6. The Plaintiff maintains that its claim is founded on the bank’s negligence in opening and operating an unauthorized account, a duty owed solely by the bank to its customer, and that the Plaintiff has not pleaded any claim against the Third Parties, nor is there any commonality of cause of action between them and the Plaintiff. Consequently, it is the Plaintiff’s position that the inclusion of the Third Parties is procedurally defective, irregular, and prejudicial.
7. The Plaintiff relied on a number of authorities including the case of Rawen v Muchungu & another Civil Case No. E007 of 2021; 2023 KEHC 27407, where it was held that “for a court to allow a Third Pary Notice to issue it must establish that the cause of action between the Defendants and the intended third Party is the same as the original action between the Plaintiff and the Defendants.
8. It was submitted that their continued participation will cause delay, confusion, and unnecessary expansion of the litigation.The Plaintiff therefore prays that the Third Parties and their pleadings be struck out, with costs awarded to the Plaintiff.
The 1st Defendant’s Submissions
9. The 1st Defendant, Bank of Baroda (Kenya) Limited, opposes the Preliminary Objection and contends that the objection is misconceived, incompetent, and an abuse of the process of the Court.
10. The Defendant submits that third party proceedings are between a defendant and the third party, and the Plaintiff lacks standing to dictate who may be joined. Counsel argued that on 15th July 2024, the Court (through the Deputy Registrar) directed the Defendant to serve the third party notice, which was duly effected. The Third Parties thereafter entered appearance and have actively participated in the proceedings, including mediation, and have filed extensive documents.
11. The Defendant maintains that even if leave was irregular, the defect is a mere procedural technicality. Counsel urged the Court to invoke Article 159(2)(d) of the Constitution, which requires justice to be administered without undue regard to procedural technicalities. The Defendant relied on the Supreme Court decision in Shabbir Ali Jusab v Anaar Osman Gamrai & Attorney General [2013] KESC 9, where the Court emphasized substantive justice over form.
12. The Defendant further submits that the Preliminary Objection does not raise a pure point of law capable of disposing of the suit, as defined in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
13. The Defendant asserts that the Third Parties are necessary for the effectual and complete adjudication of the dispute, as they were the persons who opened and operated the subject bank account, and that their participation is therefore essential to determine the issues in controversy. The Defendant prays that the Preliminary Objection be dismissed with costs.
Analysis and Determination
14. Having carefully considered the Plaintiff’s Objection, the submissions filed by the parties and the applicable law, I find that the sole issue for determination is whether the Preliminary Objection is merited.
15. The Plaintiff’s Preliminary Objection is anchored on the assertion that the 1st Defendant did not obtain leave under Order 1 Rule 15 of the Civil Procedure Rules, 2010 before issuing a third party notice. The Plaintiff therefore urges that the joinder of the 1st and 2nd Third Parties is irregular and void ab initio.
16. The starting point is the nature of a preliminary objection. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated:
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”
17. Sir Charles Newbold, P. added:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
18. The Supreme Court in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR), restated the relevant principles of what constitutes a Preliminary Objection as was set out in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696, where it was held that:
“a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”
19. In Oraro v Mbaja [2005] eKLR, Ojwang J (as he the was) stated as follows on what constitutes a preliminary objection: -
“I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. I am in agreement with learned counsel, Mr. Ougo , that “where a Court needs to investigate facts, a matter cannot be raised as a preliminary point.” This legal principle is beyond dispute, as there are divers weighty authorities carrying the message. In addition to the ones I have cited, Mr. Ougo drew my attention to yet others. In El-Busaidy v. Commissioner of Lands & 2 Others [2002] 1KLR 508 Mr. Justice Onyancha in this Court remarked as follows (pp. 515 – 516):
20. Applying the above test to the present case, the Plaintiff’s objection requires the Court to ascertain whether leave was in fact granted, whether the Deputy Registrar’s directions amounted to leave, and whether the defect is fatal or curable. These are not pure points of law; they involve examination of the record and exercise of discretion. The objection therefore falls outside the proper scope of a preliminary objection.
21. Turning to the substance, Order 1 Rule 15 Civil Procedure Rules indeed requires leave of the Court, obtained by summons in chambers supported by affidavit. It provides in part that:
“15. Notice to third and subsequent parties [Order 1, rule 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(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.
(2) A copy of such notice shall be filed and shall be served on the third party according to the rules relating to the service of a summons.
(3) The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the court, be filed and served within fourteen days of leave, and shall be in or to the effect of Form No. 1 of Appendix A with such variations as circumstances require and a copy of the plaint shall be served therewith.”
22. From the above, it is clear that the procedure for bringing third-party proceedings is that a defendant must first seek the leave of the court by way of Chamber Summons, accompanied by a draft third-party notice, the statement of claim against the intended third party, and an affidavit setting out the factual basis of the intended claim.
23. Where leave is granted, the third-party notice is issued under seal of the court and must be filed and served on the intended third party together with the pleadings and any other relevant documents. The notice must state clearly the nature of the claim made against the third party, the questions or issues to be determined as between the defendant and the third party, and the specific relief sought. Upon service, the third party is required to enter appearance and, if he disputes liability, to file a defence in the same manner as a defendant to the principal suit.
24. In this case, the record shows that the 1st Defendant filed a Chamber Summons dated 12th July 2024, but the same was not determined by a judge. Instead, on 15th July 2024, the Deputy Registrar directed that the third party notice be served. Strictly speaking, such directions do not amount to judicial leave. The Plaintiff is therefore correct that the procedure was irregular.
25. The question then is whether such irregularity is fatal. The Supreme Court in Shabbir Ali Jusab v Anaar Osman Gamrai & Attorney General [2013] KESC 9 (KLR) emphasized that:
“The essence of Article 159(2)(d) is that a Court of law should not allow the prescriptions of procedure and form to trump the primary object of dispensing substantive justice to the parties.”
26. Similarly, in Raila Odinga v IEBC & 4 others Petition No. 5 of 2013, the Court held that while procedure guides the court, it must not be applied mechanistically to defeat substantive justice.
27. The overriding objective under sections 1A and 1B of the Civil Procedure Act also requires the Court to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Striking out the Third Parties at this stage, after they have entered appearance, filed extensive documents, and participated in mediation, would fragment the dispute and risk multiplicity of suits.
28. In Rawal v Mombasa Hardware Ltd [1968] EA 392, Sir Charles Newbold, P. cautioned that:
“Any rule which purports to take away the inherent jurisdiction of the courts should be looked at very carefully before it is construed in such a manner.”
29. This Court retains inherent jurisdiction to regularize procedure and prevent injustice. The joinder of the Third Parties is central to the 1st Defendant’s defence, which alleges that the disputed bank account was opened and operated by them on behalf of the Plaintiff. Their participation is necessary for effectual and complete adjudication under Order 1 Rule 10(2) Civil Procedure Rules, which empowers the Court to add parties whose presence is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit.
30. Accordingly, while the Plaintiff has demonstrated a procedural irregularity, the objection does not meet the threshold of a proper preliminary objection under Mukisa Biscuit. Further, the irregularity is not fatal; it is curable under Article 159(2)(d) and the Court’s inherent jurisdiction. The Court therefore finds that the Preliminary Objection is devoid of merit.
31. Accordingly, I issue the following final orders: -
i. The Plaintiff’s Preliminary Objection dated 2nd April 2025 is hereby dismissed.
ii. Leave to issue the third party notice is granted nunc pro tunc, the service already effected is deemed proper, and the 1st Defendant shall within fourteen (14) days move the Court under Order 1 Rule 22 Civil Procedure Rules for directions on the conduct of third party proceedings.
iii. Costs shall be in the cause.
32. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH DECEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
1. This Ruling determines the Plaintiff’s Preliminary Objection dated 2 April 2025, challenging the joinder of the 1st and 2nd Third Parties. The objection is premised on the ground that the 1st Defendant did not obtain leave of the Court as required under Order 1 Rule 15 of the Civil Procedure Rules, 2010, before issuing a third-party notice. The Plaintiff, therefore, seeks to have the Third Parties and their pleadings struck out.
2. The 1st Defendant opposed the objection through Grounds of Opposition dated 14 May 2025 and written submissions dated 28 July 2025, contending that the objection is misconceived, that directions to serve Third Party Notices were given by the Deputy Registrar on 15 July 2024, and that the Third Parties have since actively participated in the proceedings. The Defendant therefore urged this Court to dismiss the objection as a mere procedural technicality curable under Article 159(2)(d) of the Constitution.
3. The matter was canvassed by way of written submissions. The Plaintiff, through the law firm of Tito & Associates Advocates, filed its submissions dated 9th July 2025, whilst the 1st Defendant filed their submissions dated 28th July 2025, through Ondati Mogaka & Associates.
The Plaintiff’s Submissions
4. The Plaintiff in challenging contends that the 1st Defendant did not obtain leave of the Court as required under Order 1 Rule 15 of the Civil Procedure Rules, 2010 before issuing a third party notice. Counsel submitted that the Chamber Summons application dated 12th July 2024 seeking leave was never placed before a judge for determination and therefore remained undetermined.
5. The Plaintiff further argue that the directions given by the Deputy Registrar on 15th July 2024 to serve the third party notice were ultra vires, since the Deputy Registrar lacks jurisdiction under Order 49 of the Civil Procedure Rules to grant leave for third party proceedings. It further pointed out that 1st Defendant failed to comply with Order 1 Rule 22 of the Civil Procedure Rules, which requires a defendant to apply for directions once a third party has entered appearance.
6. The Plaintiff maintains that its claim is founded on the bank’s negligence in opening and operating an unauthorized account, a duty owed solely by the bank to its customer, and that the Plaintiff has not pleaded any claim against the Third Parties, nor is there any commonality of cause of action between them and the Plaintiff. Consequently, it is the Plaintiff’s position that the inclusion of the Third Parties is procedurally defective, irregular, and prejudicial.
7. The Plaintiff relied on a number of authorities including the case of Rawen v Muchungu & another Civil Case No. E007 of 2021; 2023 KEHC 27407, where it was held that “for a court to allow a Third Pary Notice to issue it must establish that the cause of action between the Defendants and the intended third Party is the same as the original action between the Plaintiff and the Defendants.
8. It was submitted that their continued participation will cause delay, confusion, and unnecessary expansion of the litigation.The Plaintiff therefore prays that the Third Parties and their pleadings be struck out, with costs awarded to the Plaintiff.
The 1st Defendant’s Submissions
9. The 1st Defendant, Bank of Baroda (Kenya) Limited, opposes the Preliminary Objection and contends that the objection is misconceived, incompetent, and an abuse of the process of the Court.
10. The Defendant submits that third party proceedings are between a defendant and the third party, and the Plaintiff lacks standing to dictate who may be joined. Counsel argued that on 15th July 2024, the Court (through the Deputy Registrar) directed the Defendant to serve the third party notice, which was duly effected. The Third Parties thereafter entered appearance and have actively participated in the proceedings, including mediation, and have filed extensive documents.
11. The Defendant maintains that even if leave was irregular, the defect is a mere procedural technicality. Counsel urged the Court to invoke Article 159(2)(d) of the Constitution, which requires justice to be administered without undue regard to procedural technicalities. The Defendant relied on the Supreme Court decision in Shabbir Ali Jusab v Anaar Osman Gamrai & Attorney General [2013] KESC 9, where the Court emphasized substantive justice over form.
12. The Defendant further submits that the Preliminary Objection does not raise a pure point of law capable of disposing of the suit, as defined in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696.
13. The Defendant asserts that the Third Parties are necessary for the effectual and complete adjudication of the dispute, as they were the persons who opened and operated the subject bank account, and that their participation is therefore essential to determine the issues in controversy. The Defendant prays that the Preliminary Objection be dismissed with costs.
Analysis and Determination
14. Having carefully considered the Plaintiff’s Objection, the submissions filed by the parties and the applicable law, I find that the sole issue for determination is whether the Preliminary Objection is merited.
15. The Plaintiff’s Preliminary Objection is anchored on the assertion that the 1st Defendant did not obtain leave under Order 1 Rule 15 of the Civil Procedure Rules, 2010 before issuing a third party notice. The Plaintiff therefore urges that the joinder of the 1st and 2nd Third Parties is irregular and void ab initio.
16. The starting point is the nature of a preliminary objection. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated:
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”
17. Sir Charles Newbold, P. added:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
18. The Supreme Court in Joho & another v Shahbal & 2 others [2014] KESC 34 (KLR), restated the relevant principles of what constitutes a Preliminary Objection as was set out in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696, where it was held that:
“a Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.”
19. In Oraro v Mbaja [2005] eKLR, Ojwang J (as he the was) stated as follows on what constitutes a preliminary objection: -
“I think the principle is abundantly clear. A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. I am in agreement with learned counsel, Mr. Ougo , that “where a Court needs to investigate facts, a matter cannot be raised as a preliminary point.” This legal principle is beyond dispute, as there are divers weighty authorities carrying the message. In addition to the ones I have cited, Mr. Ougo drew my attention to yet others. In El-Busaidy v. Commissioner of Lands & 2 Others [2002] 1KLR 508 Mr. Justice Onyancha in this Court remarked as follows (pp. 515 – 516):
20. Applying the above test to the present case, the Plaintiff’s objection requires the Court to ascertain whether leave was in fact granted, whether the Deputy Registrar’s directions amounted to leave, and whether the defect is fatal or curable. These are not pure points of law; they involve examination of the record and exercise of discretion. The objection therefore falls outside the proper scope of a preliminary objection.
21. Turning to the substance, Order 1 Rule 15 Civil Procedure Rules indeed requires leave of the Court, obtained by summons in chambers supported by affidavit. It provides in part that:
“15. Notice to third and subsequent parties [Order 1, rule 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(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.
(2) A copy of such notice shall be filed and shall be served on the third party according to the rules relating to the service of a summons.
(3) The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the court, be filed and served within fourteen days of leave, and shall be in or to the effect of Form No. 1 of Appendix A with such variations as circumstances require and a copy of the plaint shall be served therewith.”
22. From the above, it is clear that the procedure for bringing third-party proceedings is that a defendant must first seek the leave of the court by way of Chamber Summons, accompanied by a draft third-party notice, the statement of claim against the intended third party, and an affidavit setting out the factual basis of the intended claim.
23. Where leave is granted, the third-party notice is issued under seal of the court and must be filed and served on the intended third party together with the pleadings and any other relevant documents. The notice must state clearly the nature of the claim made against the third party, the questions or issues to be determined as between the defendant and the third party, and the specific relief sought. Upon service, the third party is required to enter appearance and, if he disputes liability, to file a defence in the same manner as a defendant to the principal suit.
24. In this case, the record shows that the 1st Defendant filed a Chamber Summons dated 12th July 2024, but the same was not determined by a judge. Instead, on 15th July 2024, the Deputy Registrar directed that the third party notice be served. Strictly speaking, such directions do not amount to judicial leave. The Plaintiff is therefore correct that the procedure was irregular.
25. The question then is whether such irregularity is fatal. The Supreme Court in Shabbir Ali Jusab v Anaar Osman Gamrai & Attorney General [2013] KESC 9 (KLR) emphasized that:
“The essence of Article 159(2)(d) is that a Court of law should not allow the prescriptions of procedure and form to trump the primary object of dispensing substantive justice to the parties.”
26. Similarly, in Raila Odinga v IEBC & 4 others Petition No. 5 of 2013, the Court held that while procedure guides the court, it must not be applied mechanistically to defeat substantive justice.
27. The overriding objective under sections 1A and 1B of the Civil Procedure Act also requires the Court to facilitate the just, expeditious, proportionate, and affordable resolution of disputes. Striking out the Third Parties at this stage, after they have entered appearance, filed extensive documents, and participated in mediation, would fragment the dispute and risk multiplicity of suits.
28. In Rawal v Mombasa Hardware Ltd [1968] EA 392, Sir Charles Newbold, P. cautioned that:
“Any rule which purports to take away the inherent jurisdiction of the courts should be looked at very carefully before it is construed in such a manner.”
29. This Court retains inherent jurisdiction to regularize procedure and prevent injustice. The joinder of the Third Parties is central to the 1st Defendant’s defence, which alleges that the disputed bank account was opened and operated by them on behalf of the Plaintiff. Their participation is necessary for effectual and complete adjudication under Order 1 Rule 10(2) Civil Procedure Rules, which empowers the Court to add parties whose presence is necessary to enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit.
30. Accordingly, while the Plaintiff has demonstrated a procedural irregularity, the objection does not meet the threshold of a proper preliminary objection under Mukisa Biscuit. Further, the irregularity is not fatal; it is curable under Article 159(2)(d) and the Court’s inherent jurisdiction. The Court therefore finds that the Preliminary Objection is devoid of merit.
31. Accordingly, I issue the following final orders: -
i. The Plaintiff’s Preliminary Objection dated 2nd April 2025 is hereby dismissed.
ii. Leave to issue the third party notice is granted nunc pro tunc, the service already effected is deemed proper, and the 1st Defendant shall within fourteen (14) days move the Court under Order 1 Rule 22 Civil Procedure Rules for directions on the conduct of third party proceedings.
iii. Costs shall be in the cause.
32. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
11TH DECEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses