1. The appellants filed an application in the Chief Magistrate’s Court, by which they sought to have the court set aside its orders of 30th September 2024, order that the matter proceed de novo, grant leave to issue a third-party notice against the County Government of Mombasa, and strike out the 2nd appellant from the proceedings.
2. In a terse ruling delivered on 11th March 2025, the court below found that, under Order 1 Rule 5 of the Civil Procedure Rules, an application for leave to issue a third-party notice ought to have been filed within 14 days of the close of pleadings, by way of summons in Chambers. The court found that the application for leave, filed 6 years after the institution of the suit, was unmerited and dismissed it. The learned Chief Magistrate disallowed the application to set aside the proceedings on the ground that allowing it would only delay the conclusion of the matter.
3. The court below found that the matter had substantially progressed and was at the submissions stage. It noted that specific allegations were made against the 2nd appellant and that it would be prudent to conclude the matter. The court thus dismissed the application with costs to the respondent.
4. The appellants were aggrieved by the said decision and filed the instant appeal. The appeal raises 7 grounds, which I shall restate below. These are:
1. That the Learned Magistrate erred in law and fact in dismissing the Appellants Notice of Motion dated 23rd October 2024;
2. That the Learned Magistrate erred in law and in fact in failing to exercise its discretion in favour of the Appellants and set aside the proceedings 30th September 2024 and the entire proceedings in this matter, and order the matter proceeds de novo;
3. That the Learned Magistrate erred in law and in fact in making a finding that the Appellant's Application did not meet the threshold for the grant of orders to remove the 2nd Appellant's name from the proceedings;
4. That the Magistrate erred in law and in fact in failing to be guided by the principle provided in Salmon vs Salmon that a company is a separate and distinct entity from its directors;
5. That the Learned Magistrate erred in law and in fact by considering extrinsic factors and dismissing the Appellant's prayer for leave to enjoin a third party;
6. That the Learned Magistrate erred in law and in fact by dismissing the Appellants Application without giving sufficient reasons thereby not according the Appellants a hearing or chance to have the matter determined on merits;
7. That the Magistrate erred in law and in fact and failed to effectively take into consideration the averments contained in the Appellants' Supporting Affidavit, Supplementary Affidavit and the Written Submissions filed by the Appellants in support of the Application.
5. The appellants sought to have the appeal allowed, for the ruling and consequential orders issued on 11th March 2025 in Mombasa CMCC No. 2571 of 2018 to be set aside, for the appellants’ application dated 2nd October 2024 to be allowed, and for costs to be awarded to the appellants.
6. The appellants filed an application seeking a stay of proceedings pending appeal dated 11th April 2025. Upon considering the said application, this court, in a reasoned decision delivered on 30th July 2025, allowed the same. The court also ordered that the appeal be first tracked.
7. The application was canvassed through written submissions. Both parties filed written submissions, which I shall briefly set out below.
8. The appellants' submissions are dated 29th September 2025. In those submissions, their counsel identified the issues for determination as being as follows:
i Whether the court exercised its jurisdiction judiciously in refusing to set aside the proceedings;
ii Whether the 2nd appellant’s name ought to be struck out; and
iii Whether leave should be granted to the appellants to institute 3rd party proceedings.
9. On the suit issue, it was urged that the court below did not exercise its jurisdiction properly or judiciously. Counsel contended that the appellant’s counsel ought to have been granted an adjournment and that the denial thereof breached their right to a fair trial. Counsel relied on the case of Mbithuka Titus v Jackline Mutindi [2020] KEHC 2782 (KLR), Mbogo v Shah (1968) EA 93 and the Indian decision of Parimal v Veena @ Bharthi [2011].
10. It was submitted that the 2nd appellant ought to have been struck out as a party as he was a director of a limited liability company. Counsel submitted that even if it were true that the 2nd appellant received money, he would have done so in his capacity as an agent of a disclosed principal. This court was referred to the decision of the court in the case of Kenya Scientific Research International Technical and Allied Institutes Workers Union v Rainald Schumcher & Another [2012] KEELRC 77 (KLR), where the court held that:
“The principle in Salomon v Salomon is that a company is different from the directors that form it. The directors cannot, therefore, be sued as the claimant has done in this suit. I will therefore strike out the 1st respondent from this suit and order the claimant to proceed against the 2nd Respondent accordingly.”
11. It was urged that, contrary to what was stated in the ruling, no specific allegations were made against the 2nd appellant. The counsel for the appellants, therefore, urged that the court find that the learned Chief Magistrate erred and that the name of the 2nd appellant be struck out.
12. Counsel for the appellants submitted that third-party proceedings can be commenced at any time and that there was no time bar. Support for this proposition was drawn from the decision of the Court in the case of Samuel Maina Munuhe v James Kibuthu Mubea & another (2010) KECH 3132 (KLR).
13. The appellants’ counsel submitted that the learned magistrate misdirected himself and erred, and that his decision should therefore be set aside. He prayed that the appeal be allowed.
14. The submissions of the Respondent are 9th September 2025. In the said submissions, it was urged that the court below did not err, as there was a long unexplained delay in bringing the application that was dismissed by the trial court.
15. It was urged that the 2nd appellant received US$70,000/- in his personal name and receipted it. For that reason, he was a necessary party. Counsel relied on a number of authorities in support of the contention that the appeal should be dismissed with costs.
16. This is an appeal against the decision of the trial court in respect of an application. The crux of the appeal is whether the court below properly exercised its discretion in dismissing the application dated 22nd October 2024, or if this court should interfere with its discretion.
17. The matter before the court below is, to put it mildly, ancient. It was filed in 2018. It would appear to me that during the entire period, the cause was live in the court below, the appellants had counsel.
18. Since the impugned decision was made in the exercise of judicial discretion, I will first determine whether this Court may interfere with the discretion of an inferior Court. In the case of Mbogo v Shah [1968] EA 93, the Court of Appeal for Eastern Africa expressed itself as follows on the exercise of discretion:
“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself, or because it has acted on matters it should not have acted, or because it has failed to take into consideration matters or should have taken into consideration, and in doing so arrived at a wrong conclusion...”
19. Whereas it is true that under Order 1 Rule 15(1) of the Civil Procedure Rules the appellants ought to have applied for leave to issue a third-party notice to the County Government of Mombasa within 14 days of the closure of pleadings, it was always open to them to apply for an extension of time under Order 50 Rule 6 of the Civil Procedure Rules within which to do so.
20. An application for an extension of time would naturally have to be made within a reasonable time. In such circumstances, the applicants would have been required to explain why they delayed in bringing the application. The court would then have had to assess whether allowing such an application would be in the interests of justice or would prejudice the plaintiff.
21. Looking at the time taken, from the moment the suit was instituted up to the time the application was filed, it is my view that the time was inordinate; 6 years is a considerable period of time.
22. In the case of Mbogo v Shah (supra), it was held that:
“…this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice.”
23. The counsel for the appellants sought to blame his clients’ previous counsel. With respect, I do not agree; in my view, litigants have the primary duty to prosecute their case. They cannot escape blame whenever an adverse event occurs by shifting it to their previous counsel. In this particular case, I have not been shown any action taken against the previous counsel, if, as is alleged, he was to blame for what befell the appellants.
24. Given the delay, I cannot fault the learned magistrate’s decision not to exercise his discretion in favour of the appellants.
25. Was the refusal to reopen the hearing unfair, and were the appellants denied a right to a fair hearing? I do not agree that it was. The hearing proceeded in the presence of Mr Amakobe, who even cross-examined the plaintiff. My understanding of the right to a fair hearing is that litigants ought to be given a reasonable opportunity to present their cases. Where they do not take up that opportunity, the court cannot be faulted. That was the case in the proceedings before the court below.
26. I note that the appellants did not annex copies of the pleadings in the court below so that this court could gauge whether there was a cause of action against the 2nd appellant or not. In any case, the objection to joinder ought to have been made at the first opportunity, not when the trial was about to be concluded.
27. It was the duty of the appellant to prove its case by presenting this court with sufficient material for it to discern whether the court below properly exercised its discretion. Unfortunately, there isn’t enough material.
28. The upshot of the foregoing is that I find no merit in the appeal. I am not persuaded that there is a basis to set aside the decision of the court below.
29. The respondent shall have the costs of the appeal.
30. It is so ordered.
Dated and signed at Nairobi this 4th day of June, 2026.
2. In a terse ruling delivered on 11th March 2025, the court below found that, under Order 1 Rule 5 of the Civil Procedure Rules, an application for leave to issue a third-party notice ought to have been filed within 14 days of the close of pleadings, by way of summons in Chambers. The court found that the application for leave, filed 6 years after the institution of the suit, was unmerited and dismissed it. The learned Chief Magistrate disallowed the application to set aside the proceedings on the ground that allowing it would only delay the conclusion of the matter.
3. The court below found that the matter had substantially progressed and was at the submissions stage. It noted that specific allegations were made against the 2nd appellant and that it would be prudent to conclude the matter. The court thus dismissed the application with costs to the respondent.
4. The appellants were aggrieved by the said decision and filed the instant appeal. The appeal raises 7 grounds, which I shall restate below. These are:
1. That the Learned Magistrate erred in law and fact in dismissing the Appellants Notice of Motion dated 23rd October 2024;
2. That the Learned Magistrate erred in law and in fact in failing to exercise its discretion in favour of the Appellants and set aside the proceedings 30th September 2024 and the entire proceedings in this matter, and order the matter proceeds de novo;
3. That the Learned Magistrate erred in law and in fact in making a finding that the Appellant's Application did not meet the threshold for the grant of orders to remove the 2nd Appellant's name from the proceedings;
4. That the Magistrate erred in law and in fact in failing to be guided by the principle provided in Salmon vs Salmon that a company is a separate and distinct entity from its directors;
5. That the Learned Magistrate erred in law and in fact by considering extrinsic factors and dismissing the Appellant's prayer for leave to enjoin a third party;
6. That the Learned Magistrate erred in law and in fact by dismissing the Appellants Application without giving sufficient reasons thereby not according the Appellants a hearing or chance to have the matter determined on merits;
7. That the Magistrate erred in law and in fact and failed to effectively take into consideration the averments contained in the Appellants' Supporting Affidavit, Supplementary Affidavit and the Written Submissions filed by the Appellants in support of the Application.
5. The appellants sought to have the appeal allowed, for the ruling and consequential orders issued on 11th March 2025 in Mombasa CMCC No. 2571 of 2018 to be set aside, for the appellants’ application dated 2nd October 2024 to be allowed, and for costs to be awarded to the appellants.
6. The appellants filed an application seeking a stay of proceedings pending appeal dated 11th April 2025. Upon considering the said application, this court, in a reasoned decision delivered on 30th July 2025, allowed the same. The court also ordered that the appeal be first tracked.
7. The application was canvassed through written submissions. Both parties filed written submissions, which I shall briefly set out below.
8. The appellants' submissions are dated 29th September 2025. In those submissions, their counsel identified the issues for determination as being as follows:
i Whether the court exercised its jurisdiction judiciously in refusing to set aside the proceedings;
ii Whether the 2nd appellant’s name ought to be struck out; and
iii Whether leave should be granted to the appellants to institute 3rd party proceedings.
9. On the suit issue, it was urged that the court below did not exercise its jurisdiction properly or judiciously. Counsel contended that the appellant’s counsel ought to have been granted an adjournment and that the denial thereof breached their right to a fair trial. Counsel relied on the case of Mbithuka Titus v Jackline Mutindi [2020] KEHC 2782 (KLR), Mbogo v Shah (1968) EA 93 and the Indian decision of Parimal v Veena @ Bharthi [2011].
10. It was submitted that the 2nd appellant ought to have been struck out as a party as he was a director of a limited liability company. Counsel submitted that even if it were true that the 2nd appellant received money, he would have done so in his capacity as an agent of a disclosed principal. This court was referred to the decision of the court in the case of Kenya Scientific Research International Technical and Allied Institutes Workers Union v Rainald Schumcher & Another [2012] KEELRC 77 (KLR), where the court held that:
“The principle in Salomon v Salomon is that a company is different from the directors that form it. The directors cannot, therefore, be sued as the claimant has done in this suit. I will therefore strike out the 1st respondent from this suit and order the claimant to proceed against the 2nd Respondent accordingly.”
11. It was urged that, contrary to what was stated in the ruling, no specific allegations were made against the 2nd appellant. The counsel for the appellants, therefore, urged that the court find that the learned Chief Magistrate erred and that the name of the 2nd appellant be struck out.
12. Counsel for the appellants submitted that third-party proceedings can be commenced at any time and that there was no time bar. Support for this proposition was drawn from the decision of the Court in the case of Samuel Maina Munuhe v James Kibuthu Mubea & another (2010) KECH 3132 (KLR).
13. The appellants’ counsel submitted that the learned magistrate misdirected himself and erred, and that his decision should therefore be set aside. He prayed that the appeal be allowed.
14. The submissions of the Respondent are 9th September 2025. In the said submissions, it was urged that the court below did not err, as there was a long unexplained delay in bringing the application that was dismissed by the trial court.
15. It was urged that the 2nd appellant received US$70,000/- in his personal name and receipted it. For that reason, he was a necessary party. Counsel relied on a number of authorities in support of the contention that the appeal should be dismissed with costs.
16. This is an appeal against the decision of the trial court in respect of an application. The crux of the appeal is whether the court below properly exercised its discretion in dismissing the application dated 22nd October 2024, or if this court should interfere with its discretion.
17. The matter before the court below is, to put it mildly, ancient. It was filed in 2018. It would appear to me that during the entire period, the cause was live in the court below, the appellants had counsel.
18. Since the impugned decision was made in the exercise of judicial discretion, I will first determine whether this Court may interfere with the discretion of an inferior Court. In the case of Mbogo v Shah [1968] EA 93, the Court of Appeal for Eastern Africa expressed itself as follows on the exercise of discretion:
“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself, or because it has acted on matters it should not have acted, or because it has failed to take into consideration matters or should have taken into consideration, and in doing so arrived at a wrong conclusion...”
19. Whereas it is true that under Order 1 Rule 15(1) of the Civil Procedure Rules the appellants ought to have applied for leave to issue a third-party notice to the County Government of Mombasa within 14 days of the closure of pleadings, it was always open to them to apply for an extension of time under Order 50 Rule 6 of the Civil Procedure Rules within which to do so.
20. An application for an extension of time would naturally have to be made within a reasonable time. In such circumstances, the applicants would have been required to explain why they delayed in bringing the application. The court would then have had to assess whether allowing such an application would be in the interests of justice or would prejudice the plaintiff.
21. Looking at the time taken, from the moment the suit was instituted up to the time the application was filed, it is my view that the time was inordinate; 6 years is a considerable period of time.
22. In the case of Mbogo v Shah (supra), it was held that:
“…this discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice.”
23. The counsel for the appellants sought to blame his clients’ previous counsel. With respect, I do not agree; in my view, litigants have the primary duty to prosecute their case. They cannot escape blame whenever an adverse event occurs by shifting it to their previous counsel. In this particular case, I have not been shown any action taken against the previous counsel, if, as is alleged, he was to blame for what befell the appellants.
24. Given the delay, I cannot fault the learned magistrate’s decision not to exercise his discretion in favour of the appellants.
25. Was the refusal to reopen the hearing unfair, and were the appellants denied a right to a fair hearing? I do not agree that it was. The hearing proceeded in the presence of Mr Amakobe, who even cross-examined the plaintiff. My understanding of the right to a fair hearing is that litigants ought to be given a reasonable opportunity to present their cases. Where they do not take up that opportunity, the court cannot be faulted. That was the case in the proceedings before the court below.
26. I note that the appellants did not annex copies of the pleadings in the court below so that this court could gauge whether there was a cause of action against the 2nd appellant or not. In any case, the objection to joinder ought to have been made at the first opportunity, not when the trial was about to be concluded.
27. It was the duty of the appellant to prove its case by presenting this court with sufficient material for it to discern whether the court below properly exercised its discretion. Unfortunately, there isn’t enough material.
28. The upshot of the foregoing is that I find no merit in the appeal. I am not persuaded that there is a basis to set aside the decision of the court below.
29. The respondent shall have the costs of the appeal.
30. It is so ordered.
Dated and signed at Nairobi this 4th day of June, 2026.