Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the excerpt (Nairobi ELC suit; related suit Nairobi ELC Civil Case Number 950 of 2014)· [2019] KEELC 4912 (KLR)

Anthony Odhiambo Odundo v Kukam Limited & another [2019] KEELC 4912 (KLR)

Environment and Land Court
24 January 2019
BEB M Eboso
1,433 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused a company's late bid to blame the highways authority for a demolished house and kept a co-defendant in the refund case.

What this practically means

#

Executive summary

#
By chamber summons dated 11/9/2017, the defendants in a suit by a purchaser seeking refund of Kshs 4,080,000 paid under a sale agreement for maisonette number 26 on Nairobi/Block 72/3081 (later demolished by KENHA) sought leave to serve a third party notice on the Kenya National Highways Authority and to strike out the 2nd defendant from the suit. The plaintiff opposed, contending his claim sounded in contract against the defendants alone, that no basis for indemnity or contribution against KENHA was shown, and that the 2nd defendant, who received part of the money, was a necessary party. Justice B M Eboso framed two issues: whether leave for a third party notice was properly founded, and whether the 2nd defendant was a necessary party. On the first, the court noted pleadings closed in 2016 and the application came a year later with no extension of time or explanation, contrary to Order 1 rule 15(1). In any event, the 1st defendant already had a pending suit (Nairobi ELC 950/2014) against KENHA over the same demolition, so granting leave risked two decrees on one cause of action; the defendant was left at liberty to seek consolidation. On the second issue, the court held the 2nd defendant, having received part of the refundable money, was necessary for complete adjudication. The application was wholly dismissed with costs to the plaintiff on 24 January 2019.

Key legal issues

#
01

Whether leave should issue for a third party notice against KENHA

Holding

Refused; the application was brought one year after close of pleadings with no explanation and the defendant already has a pending suit against KENHA over the same demolition

Reasoning

Order 1 rule 15(1) requires the application within 14 days of close of pleadings. Pleadings closed in 2016 and no extension of time or explanation was tendered. Further, the pending ELC 950/2014 suit against KENHA over the same demolition means granting leave could yield two decrees against KENHA on one cause of action. The defendant may instead seek consolidation of the two suits.

p. 2
02

Whether the 2nd defendant is a necessary party

Holding

Yes; the claim is for refund of money part of which was received by the 2nd defendant, so her presence is necessary

Reasoning

The plaintiff seeks a refund of Kshs 4,080,000, part of which was paid to and received by the 2nd defendant at the 1st defendant's behest. Both defendants deny liability. Determining questions relating to the payment requires the 2nd defendant's presence for the court to effectually and completely adjudicate on all issues. The striking-out plea was declined.

p. 2

Legal principles established

#
  • Leave to issue a third party notice must be sought within fourteen days after close of pleadings, and unexplained delay defeats the application
  • A third party notice cannot properly issue where the defendant has a subsisting suit against the intended third party over the same cause of action, as this would produce two decrees on the same claim
  • The test for joinder is whether the party's presence is necessary to enable the court to effectually and completely adjudicate upon and settle all questions in the suit

Court orders

#
  1. 1.The defendants' chamber summons application dated 11/9/2017 is wholly rejected for lack of merit
  2. 2.The plaintiff shall have costs of the application

Authorities

#

Legislation

  • Civil Procedure RulesOrder 1 rule 15(1)
  • Constitution of KenyaArticle 159
Jurisdiction invoked
Order 1 rule 15(1) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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, "Anthony Odhiambo Odundo v Kukam Limited & another [2019] KEELC 4912 (KLR)", Case Analysis (2019). Not stated in the excerpt (Nairobi ELC suit; related suit Nairobi ELC Civil Case Number 950 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4912/eng@2019-01-24

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