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ELCAllowedExparte chamber summons dated 24th August, 2014 (third party application in the main suit)· [2017] KEELC 1020 (KLR)

Iria-Ini Tea Factory Limited v Johnstone Muchai Muthanga & 5 others [2017] KEELC 1020 (KLR)

Environment and Land Court
2 November 2017
LWL N Waithaka
1,295 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a party in a land sale dispute to bring a lawyer/agent into the case so anyone found responsible for the money can share the loss.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyeri (L N Waithaka J) determined an ex parte chamber summons dated 24th August 2014 by which the third party sought leave to issue and serve a third party notice upon Joshua Macharia Kihara, trading as Kihara & Associates. The third party alleged it was instructed by the 1st defendant to act for the 3rd defendant in the sale of LR No. Nyandarua/Gilgil West/18 (90.2 acres), that the 3rd defendant authorised sale at Kshs 220,000 per acre with any excess to be the agent's commission, that the plaintiff paid it Kshs 31,570,000 as purchase price, and that on the instructions of the 1st and 3rd defendants it paid Kshs 19,800,000 to the 3rd defendant and Kshs 11,700,000 to the intended third party. It sought indemnity or contribution from the intended third party. Although the application is to be made ex parte under Order 1 Rule 15 CPR, the 1st and 3rd defendants opposed it via grounds of objection and a replying affidavit, denying knowledge of the intended third party, the letters and the instructions, and alleging forgery. The court applied Order 1 Rule 15 and the Oceanfrieght case on joinder, found the intended third party to be a necessary party, and held that a legitimate issue of law or fact arose as to who holds part of the purchase price and whether the Kshs 11,700,000 was received as commission on instructions. The application was allowed as prayed.

Key legal issues

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01

Entitlement to leave to issue a third party notice under Order 1 Rule 15 CPR

Holding

Leave was granted because a legitimate question of law or fact arises on whether the third party holds part of the purchase price and whether the intended third party received Kshs 11,700,000 as commission, engaging contribution or indemnity.

Reasoning

The court applied Order 1 Rule 15(1) CPR, which allows a defendant claiming contribution or indemnity from a non-party to apply ex parte for leave to issue a third party notice. Noting it was not in dispute that the third party received Kshs 31,570,000 from the plaintiff as purchase price, and that the 1st defendant denied issuing instructions to pay the intended third party, the court found the intended third party a necessary party whose joinder would facilitate final and effectual determination of the issues.

p. 3

Legal principles established

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  • Joinder of third parties by defendants is not limited to contractual claims; it may be sought on any basis of liability of the third party to the defendant, including liability arising by operation of law.

Court orders

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  1. 1.Leave granted to the third party to issue and serve a third party notice upon Joshua Macharia Kihara, trading as Kihara & Associates, as prayed

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 15

Cases cited (1)

  • Oceanfrieght (EA) Ltd vs Technomatic Ltd & Another
    2010 eKLR
Jurisdiction invoked
Order 1 Rule 15 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Iria-Ini Tea Factory Limited v Johnstone Muchai Muthanga & 5 others [2017] KEELC 1020 (KLR)", Case Analysis (2017). Exparte chamber summons dated 24th August, 2014 (third party application in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1020/eng@2017-11-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.