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ELCAllowedNot stated in the judgment· [2017] KEELC 2825 (KLR)

Iria-Ini Tea Factory Limited v Johnstone Muchai Muthanga & 4 others [2017] KEELC 2825 (KLR)

Environment and Land Court
29 March 2017
2,673 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed late amendments and a third party claim against an advocate, prioritizing justice over procedural technicalities.

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 two interlocutory applications arising from a dispute over the sale and conveyance of LR No. Nyandarua/Gilgil West/18. First, the 4th defendant sought leave to amend its statement of defence to introduce a counter-claim. The court allowed the application, holding that although there was some delay, the matter was not yet set down for hearing and the plaintiff would suffer no prejudice uncompensable by costs; costs were made to abide the outcome of the suit. Second, the 3rd defendant sought leave to issue a third party notice against Kamau Githui & Company Advocates and its partners, who had received the purchase price of Kshs. 31,570,000/= and allegedly withheld Kshs. 11,700,000/=. The intended third party and the 4th defendant opposed, arguing the application was out of time, that the dispute concerns an advocate-client relationship reserved for the Advocates Complaints Commission or Disciplinary Tribunal, and that the joinder threshold was not met. The court acknowledged that the application was filed over three years after pleadings closed, without an extension of time under Order 50 Rule 6, but invoked Section 1A CPR, Article 159 of the Constitution and Section 3A of the Civil Procedure Act to overlook the defect. On the merits, applying Order 1 Rule 15(a) and the Oceanfrieght test, it found a legitimate issue of indemnity or contribution since the withheld money was not claimed as legal fees, and allowed the application as prayed. Both applications succeeded.

Key legal issues

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01

Leave to amend pleadings

Holding

Amendment allowed notwithstanding some delay because the hearing had not begun and no uncompensable prejudice was shown; the amendments would enable conclusive determination of the matter.

Reasoning

The court weighed the delay against the absence of prejudice. Since the matter was yet to be set down for hearing, allowing the amendment would not prejudice the plaintiff in a manner not compensable by costs. The amendments were viewed as necessary for conclusive determination of all issues between the parties.

p. 2
02

Third party notice - out-of-time application

Holding

Although the application was made out of time and without an application for extension of time under Order 50 Rule 6, the court exercised its discretion under Section 1A CPR, Article 159 of the Constitution and Section 3A of the Civil Procedure Act to overlook the defect.

Reasoning

Pleadings closed on or about 1st September 2013, so leave under Order 1 Rule 15 was due by about 15th September 2013; the application came three years late with no explanation and no extension application. However, the overriding objective and the inherent power to act for the ends of justice allowed the court to proceed to the merits despite the procedural defect.

p. 5
03

Merits of the third party notice

Holding

Leave granted: the intended third party received Kshs. 31,570,000/= from the plaintiff in connection with the suit property and does not claim the withheld balance as legal fees, raising a legitimate issue of indemnity or contribution.

Reasoning

Applying Order 1 Rule 15(a) and the Oceanfrieght test, joinder is permissible where a basis of liability of the third party to the defendant exists. There was no dispute that the law firm received the purchase price; it claimed it disbursed per instructions, which the 3rd defendant denied. Part of the plaintiff's claim is for recovery of the purchase price, so indemnity/contribution issues properly arise in this suit.

p. 6
04

Objection based on advocate-client relationship

Holding

Rejected - the dispute over withheld sale proceeds is not a complaint about professional misconduct or fees for the Advocates Complaints Commission or Disciplinary Tribunal, since the intended third party does not claim the withheld money as legal fees.

Reasoning

The intended third party and 4th defendant argued that any dispute over the retained Kshs. 11,700,000/= fell within the Advocates Act machinery. The court found that because the law firm did not assert the withheld sum as its legal fees, the claim concerns the purchase price and the 3rd defendant's entitlement to contribution or indemnity, which is properly litigated in this suit rather than before disciplinary organs.

p. 6

Legal principles established

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  • Joinder of third parties is not linked to contract; it may be sought in connection with different causes of action provided there exists a basis of liability of the third party to the defendant.
  • Courts should dispense justice without undue regard to procedural technicalities and may invoke the inherent power to make orders necessary for the ends of justice notwithstanding defects in an application.

Court orders

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  1. 1.The 4th defendant's application dated 28th April 2016 is allowed in terms of prayer 1 and 2 (leave to amend the statement of defence to introduce a counter-claim); costs to abide the outcome of the suit
  2. 2.The 3rd defendant's application dated 20th June 2016 for leave to issue and serve a third party notice upon Kamau Githui & Company Advocates and their partners is allowed as prayed

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 4
  • Civil Procedure RulesOrder 1 Rule 15
  • Civil Procedure RulesOrder 1 Rule 1
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure RulesSection 1A
  • Civil Procedure ActSection 3A
  • Constitution of Kenya 2010Article 159
  • Advocates ActSections 55, 60 and 60(1)

Cases cited (5)

  • Albert Lukoru Loduma v. JSC & 2 Others
    (2013) e KLR
  • Republic v. Disciplinary Committee ex parte Wambugu Kariuki
    (2015) e KLR
  • Kingori vs. Chege & 3 others
    (2002) e KLR
  • Speaker of National Assembly v. Njenga Karume
    (2008) 1 KLR 425
  • Oceanfrieght (EA) Ltd vs Technomatic Ltd & Another
    2010 eKLR
Jurisdiction invoked
Original civil jurisdiction; Civil Procedure Act and Rules; Article 159 of the Constitution of Kenya 2010

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 & 4 others [2017] KEELC 2825 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2825/eng@2017-03-29

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