Peter Njeru Mugo v Jimba Credit Corporation Ltd & Another
The bottom line
#Kenya's Court of Appeal confirmed that a co-defendant can defend itself against your damages claim if you follow the correct procedure — and yours must be procedurally sound.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the superior court judge was correct in holding that the appellant's defence and counterclaim did not comply with the requirements of Order VIII rule 7 of the Civil Procedure Rules
- 2.Whether Order 1 rule 21 of the Civil Procedure Rules was the only proper basis for claims between co-defendants, entitling the first respondent to defend its liability to the appellant in special and general damages
Key legal issues
#Compliance of a defence and counterclaim with Order VIII rule 7 of the Civil Procedure Rules
The appellant's defence and counterclaim did not comply with Order VIII rule 7 because he did not add to the title of his defence a further title setting out the names of all persons who would be defendants to the cross-action; he therefore could not avail himself of that rule
The court examined the text of Order VIII rule 7, which requires a defendant setting up a counterclaim raising questions with the plaintiff together with other persons to add a further title to the defence naming all persons who would be defendants to the cross-action. The superior court judge found no such compliance and the Court of Appeal had nothing before it to dispute that finding. Non-compliance meant the appellant could not rely on the rule to convert his counterclaim into a claim against the co-defendant.
The proper procedural basis for claims between co-defendants under Order 1 rule 21
Order 1 rule 21 is the proper basis for claims by a defendant against a co-defendant; such a claim is equated to a third-party claim under rule 18 of that Order, and the co-defendant is entitled to enter an answer and defend its liability
Rule 21(1) permits a defendant, without leave, to serve a notice on another party to the suit claiming contribution, indemnity or relief connected with the original subject-matter. Rule 21(2) adopts the third-party procedure for determining such claims. Since the first respondent had answered the appellant's notice, and the court had earlier found the issues in the notice proper for trial as between them, the first respondent was entitled to defend its liability in special and general damages.
Legal principles established
#- A counterclaim against a co-defendant that does not comply with Order VIII rule 7 (adding a further title setting out the names of all persons who would be defendants to the cross-action) cannot be relied upon by a defendant; claims between co-defendants are governed by Order 1 rule 21, under which the co-defendant's claim is equated to a third-party claim and a defence or answer to it is permitted
- Where a co-defendant has been served with a notice under Order 1 rule 21 and has responded, that co-defendant is entitled to defend its liability to the defendant in the claim, question or issue raised in the notice, following the third-party procedure under rule 18 of that Order
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the first respondent only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 937 of 1986
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court under the Constitution and the Appellate Jurisdiction Act (implied; not expressly stated in the judgment)
Relief refused
#Appellant's attempt to exclude the first respondent from defending its liability to him in special and general damages
The appellant's counterclaim did not comply with Order VIII rule 7, and the claim between co-defendants was properly governed by Order 1 rule 21, under which the first respondent was entitled to answer and defend
Costs
Appeal dismissed with costs to the first respondent only, the second respondent having had little or no role in the subject-matter of the appeal both in the Court of Appeal and in the court below
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
by……………….rule 21 Order 1 the co-defendant('s) claim is equated to the position of the third party under rule 18 Order 1 in which a defence or answer to the claim is permitted from such codefendant. The first defendant has here filed such answer and it is in the file and must be tried
From the material before us, there is no evidence that the appellant's relevant defence and/or amended defence and counterclaim complied with the provisions of Order VIII rule 7 of the Rules
The same is dismissed with costs to the first respondent only for the reason that the second respondent appears to have had little or no role at all in the subject-matter of this appeal both here and in the court below.
Issues in the judgment
#The rule on third-party directions is quoted as 'rule 28 of the Order' in the narrative but the quoted text itself is numbered '18', and the court elsewhere refers to 'Order 1 rule 18 of the rules' - an internal inconsistency in rule numbering
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Njeru Mugo v Jimba Credit Corporation Ltd & Another", Case Analysis (1996). Civil Appeal No. 12 of 1996. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.