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ELCPartially AllowedNot stated in judgment· [2019] KEELC 1134 (KLR)

Canon Automobile Ltd v Kwale International Sugar Co. Ltd & another [2019] KEELC 1134 (KLR)

Environment and Land Court
30 October 2019
618 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You cannot bring both a third-party claim and a counterclaim against the same people in one Kenyan case — pick one, or the court will choose for you.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court at Mombasa (Munyao Sila, Judge) on an application dated 3 May 2019 by the Attorney General, appearing as 2nd defendant, brought under Order 1 Rule 15 of the Civil Procedure Rules, 2010. The applicant sought leave to issue a Third Party Notice upon Suleiman Abdalla Machafu, Hamisi Omar Ndar, Abdalla Mohammed Sarai, Hassan Ali Mkungu and Hamisi Ali Mkungu, and leave to amend the defence to include a counterclaim against the same persons. The underlying suit, commenced by plaint on 29 November 2011, concerns land parcel Kwale/Shirazi Bodo/754, which the plaintiff says it purchased from the said persons and over which it seeks a permanent injunction against the 1st defendant, Kwale International Sugar Company Limited, and a declaration of ownership; the 1st defendant denies the land's existence as described and claims leasehold title over LR No. 27742 from the Government. Plaintiff's counsel objected that a party cannot maintain both a Third Party proceeding and a counterclaim against the same persons, and the applicant elected to proceed by counterclaim. The court agreed that third party proceedings lie only against persons not already in the suit, and made no orders on the Third Party Notice. It granted conditional leave: to amend the defence to include the counterclaim if one had been filed, or alternatively to file the draft defence out of time if none existed. Costs were not ordered.

Key legal issues

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01

Whether a party may simultaneously bring Third Party proceedings and a counterclaim against the same persons

Holding

No; the two courses are mutually exclusive and a party must elect one. The court adopted counsel's submission on this point.

Reasoning

Third Party proceedings are meant for persons not already before the court. If the same persons are brought into the suit through a counterclaim by amendment of the defence, a Third Party Notice would be redundant since the same issues would already be before the court in the counterclaim. Faced with this, State Counsel elected to proceed by counterclaim, rendering any orders on the Third Party Notice unnecessary.

p. 1
02

Whether leave could be granted to amend a defence, given that no defence by the applicant was on file

Holding

The court granted leave to amend if a defence existed, and alternatively granted leave to file the defence out of time with the proposed counterclaim.

Reasoning

On perusal of the file the court found no defence by the applicant. Rather than refuse the application outright, the court gave conditional relief: leave to amend if a defence was on record, or leave to file the draft defence annexed to the application out of time if none had been filed, thereby accommodating both scenarios.

p. 1

Legal principles established

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  • Third Party proceedings cannot be maintained against persons who are already parties to the suit through a counterclaim; a party must elect one course against the same persons

Court orders

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  1. 1.No orders made on the Third Party proceedings following the applicant's election to proceed by way of counterclaim
  2. 2.If a defence has been filed by the applicant, leave granted to amend the defence to include a counterclaim against Suleiman Abdalla Machafu, Hamisi Omar Ndar, Abdalla Mohammed Sarai, Hassan Ali Mkungu and Hamisi Ali Mkungu
  3. 3.If no defence was filed, leave granted to the applicant to file defence out of time in line with the draft defence annexed to the application
  4. 4.No orders as to costs
Jurisdiction invoked
Order 1 Rule 15 of the Civil Procedure Rules, 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, "Canon Automobile Ltd v Kwale International Sugar Co. Ltd & another [2019] KEELC 1134 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1134/eng@2019-10-30

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