Kenya Wine Agencies v Technomatic Limited & another [2014] KECA 134 (KLR)
The bottom line
#Kenya's Court of Appeal refused to strike out third party proceedings in a container dispute, confirming judges have wide discretion to stay rather than dismiss overlapping claims.
What this practically means
#Executive summary
#Key legal issues
#Interference with the discretionary power to strike out pleadings under Order VI Rule 13(1)
The Court of Appeal declined to disturb the judge's exercise of discretion in refusing to strike out the third party proceedings, finding no misdirection and no injustice.
The power to strike out is discretionary. The Court applied the settled threshold for appellate interference with discretion: the appellant had to show the judge misdirected himself, arrived at a wrong decision, or was clearly wrong causing injustice. The quoted extract of the ruling showed the judge was alive to the pendency of the Nairobi suit and made an appropriate finding. The claim against the appellant as third party was intertwined with the disputes, and no prejudice was shown.
Sub judice rule as a ground for striking out third party proceedings
The sub judice complaint did not warrant striking out; the judge could not stay the whole suit when dealing with the propriety of third party proceedings, and the stay of the third party proceedings pending the Nairobi suit was an appropriate exercise of discretion.
The appellant argued that litigating the same matter in two courts of concurrent jurisdiction offended the sub judice rule and public policy, and that the judge should have struck out rather than stayed. The Court found the judge had appropriately considered the pendency of HCCC No. 398 of 2005, that the third party claim was intertwined with the disputes, and that the judge, dealing with the propriety of the third party proceedings, could not stay the whole suit. No prejudice was caused to the appellant by the third party proceedings.
Costs of the striking-out application
The award of costs was within the judge's discretion and there was nothing suggesting the discretion was not judicially exercised in condemning the appellant to pay costs.
The appellant contended it was partially successful and should not have been penalised with costs. The Court reiterated that costs follow the event and are discretionary, and interference is only warranted where the discretion was not judicially exercised. Finding nothing suggesting non-judicial exercise, the Court declined to interfere with the order that the appellant bear the 1st respondent's costs.
Legal principles established
#- An appellate court will not disturb the exercise of discretion by a judge unless misdirection is established resulting in a wrong decision, or it is manifest the judge was clearly wrong and injustice resulted.
- An appellate court cannot interfere with an award of costs unless it is established that the discretion was not judicially exercised.
- Joinder of third parties is not conceptually linked to contract; such joinder may be sought in connection with different causes of action provided there exists a basis of liability of the third party to the defendant.
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C. Suit No. 133 of 2009 (ruling in an application within the suit)
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (ruling under Order VI Rule 13(1)(b)(c) & (d) of the Civil Procedure Rules and section 3A of the Civil Procedure Act)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kenya Wine Agencies v Technomatic Limited & another [2014] KECA 134 (KLR)", Case Analysis (2014). Civil Appeal No. 16 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/134/eng@2014-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.