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ELCPartially AllowedNot stated in the ruling (Chamber Summons dated 23rd February, 2021)· [2022] KEELC 1636 (KLR)

Joshua Kyalo Mueti v Joseph Mutua Zakayo; Isaac Kimanthi Kaula (Intended Third Party) [2022] KEELC 1636 (KLR)

Environment and Land Court
8 February 2022
MCMBOGO C.G
1,397 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a late third party notice because it raised genuine disputes and caused no prejudice, showing deadlines are flexible in practice.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (Mbogo C.G, J) determined an ex-parte chamber summons dated 23rd February 2021 brought by the defendant, Joseph Mutua Zakayo, under Order 1 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking leave to issue a third party notice upon Kimanthi Kaula, the intended third party who allegedly sold him plot number 229 Kinyoo adjudication section Emali in 2008 for Kshs. 47,500/-, with the debt owed to the defendant treated as consideration. The defendant deposed that he took possession and cultivated the land, and that the intended third party thereafter purported to sell the same land to the plaintiff. The plaintiff opposed, arguing the application failed the Order 1 Rule 15 threshold, that no triable issues existed, and that the application was frivolous, vexatious and an abuse of process, relying partly on the 14-day filing requirement. The court framed a single issue: whether the applicant laid a basis for the orders sought. Applying Cheruiyot Edwin Mutai v Cyrus Ngaruiya, the court held that third party proceedings are not solely about contribution or indemnity and may concern issues among all three parties. Although filed out of time, the application raised triable issues and caused the plaintiff no prejudice. The court allowed prayers 1 and 2, granted leave to issue the third party notice, deemed it filed, gave 14-day directions for service and defence, and ordered that costs abide the outcome of the main suit.

Key legal issues

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01

Whether the defendant laid a basis for joinder of a third party under Order 1 Rule 15 despite filing the application out of time

Holding

Yes - the application raised triable issues between the defendant and the intended third party, no prejudice would be suffered by the plaintiff, and the application was neither frivolous nor an abuse of process

Reasoning

The court noted the defence was filed on 5th August 2020 but the third party notice application on 23rd February 2021, out of time. Relying on Cheruiyot Edwin Mutai v Cyrus Ngaruiya, the court held third party proceedings extend beyond contribution or indemnity and may cover issues among all three parties. The defendant's annextures showed a sale agreement and voucher supporting triable issues. Since the plaintiff would suffer no prejudice, delay was not fatal.

p. 2

Legal principles established

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  • Third party proceedings are not solely about contribution or indemnity; they may involve issues between all three parties, including between the third party and the plaintiff.
  • A third party notice filed out of the 14-day window may still be allowed where no prejudice is suffered and triable issues are raised.

Court orders

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  1. 1.The defendant/applicant is granted leave to issue a third party notice upon Kimanthi Kaula
  2. 2.The annexed third party notice is deemed duly filed
  3. 3.The defendant shall serve the third party with his pleadings within 14 days and the third party shall enter appearance and file a defence within 14 days of such service
  4. 4.After the third party complies with the directions given, the suit may be set down for hearing
  5. 5.Costs shall abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 15
  • Civil Procedure ActSection 3A

Cases cited (4)

  • Interactive Advertising Limited versus Equity Bank Limited & 2 Others
    [2016] eKLR
  • Anthony Odhiambo Odundo versus Kukam Limited & Another
    [2019] eKLR
  • ASC Metal, Belgium versus Blue Nile (East Africa) Limited & 2 Others
    [2018] eKLR
  • Cheruiyot Edwin Mutai v Cyrus Ngaruiya
    [2020] eKLR
Jurisdiction invoked
Order 1 Rule 15 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Joshua Kyalo Mueti v Joseph Mutua Zakayo; Isaac Kimanthi Kaula (Intended Third Party) [2022] KEELC 1636 (KLR)", Case Analysis (2022). Not stated in the ruling (Chamber Summons dated 23rd February, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1636/eng@2022-02-08

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