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ELCDismissed· [2024] KEELC 1707 (KLR)

Maina v Wamala (Environment and Land Case Civil Suit E154 of 2022) [2024] KEELC 1707 (KLR)

Environment and Land Court
4 April 2024
5,159 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused a defendant's late bid to drag a company into a land dispute, punishing an unexplained 14-month delay.

What this practically means

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Executive summary

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This is a ruling on a Chamber Summons application dated 27th February 2024 by the Defendant, brought under Order 1 Rule 15(10)(c) of the Civil Procedure Rules, 2010, seeking leave to file out of time an application for leave to issue and serve a third party notice on Kiambu Dandora Farmers Company Ltd in a land dispute over Plot No. 493 Zone 11. The Plaintiff opposed, arguing the application was a delaying gimmick, filed with inordinate and unexplained delay, and that the proper third party, if any, was the vendor Elisha Gwendo, with whose estate the Defendant contracted. The court framed two issues: whether the application was made timeously with delay duly accounted for, and whether a basis of liability against the intended third party was established. On the first issue, the court found pleadings closed on about 23rd January 2023 and the application, filed over 14 months later, was unexplained, defeating the exercise of equitable discretion and engaging the doctrine of laches. On the second, the court held that the sale agreement dated 25th March 2021 was between the Defendant and Elisha Gwendo alone; by the doctrine of privity of contract any claim lies only against the vendor, with whom the Defendant declined to seek a third party notice, and the alleged assurances by the intended third party were not well founded. Relying on Salat, Nairobi Bottlers, Njoroge v Kimani, Hass Petroleum and Savings & Loan, the court dismissed the application with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether the application for extension of time was brought timeously and whether the delay was explained

Holding

The application, filed over 14 months after the close of pleadings, was not timeous and no explanation for the delay was tendered; the delay was inordinate and the application is defeated by laches.

Reasoning

Order 1 Rule 15 of the Civil Procedure Rules requires an application for leave to issue a third party notice within 14 days after the close of pleadings. Pleadings closed on about 23rd January 2023, yet the application was filed on 27th February 2024. The Supporting Affidavit offered no reasons for the delay, depriving the court of the material needed to exercise its equitable discretion, which cannot be exercised in a vacuum. The unexplained delay of over 14 months attracts the doctrine of laches.

p. 7
02

Whether a basis of liability against the intended third party was established

Holding

No basis of liability against Kiambu Dandora Farmers Company Ltd was established; the sale agreement was between the Defendant and the vendor Elisha Gwendo, and any claim lies only against the vendor under privity of contract.

Reasoning

Leave to issue a third party notice is granted only where the defendant demonstrates a scintilla of claim against the intended third party. The sale agreement dated 25th March 2021 was between Elisha Gwendo and the Defendant, creating privity only between them. The alleged assurances by Kiambu Dandora Farmers Company Ltd were not well founded, and the terms of the sale agreement were explicit on warranties. Any claim for breach lies against the vendor, against whom the Defendant declined to issue a third party notice.

p. 9

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party, and the applicant must explain the delay to the satisfaction of the court.
  • A defendant seeking leave to issue a third party notice must demonstrate a basis of liability against the intended third party; leave will not issue in the absence of such a basis.
  • The doctrine of privity of contract confines enforcement of a contract to the parties to it.
  • Laches bars relief where a party neglects for an unreasonable length of time to do what could or should have been done earlier.

Court orders

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  1. 1.The Application dated the 27th of February 2024 be and is hereby dismissed with costs to the Plaintiff/Respondent.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 15(1)-(5)
  • Arbitration Act, 1995 Laws of KenyaSection 6

Cases cited (15)

  • Hass Petrolium Kenya Ltd vs Lota Engineering & Construction Ltd [formerly Lota Excavation and Rental Ltd]; White Lotus Project Ltd [Intended 3rd Party]
    [2020] eKLR
  • Kenya Commercial Bank Ltd vs Suntra Investment Bank Ltd
    (2015) eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others
    [2014] eKLR
  • Nairobi Bottlers versus Mark Ndumia & Another
    [Supreme Court 2023] [Ruling] delivered on the 28/12/2023
  • Marvin Opiyo Ambala & another v. Oduor Hawi Ambala & Another
    SC Applic No. 1 of 2021; [2021] eKLR
  • Njoroge v Kimani
    (Civil Application Nai E049 of 2022) [2022] KECA 1188 (KLR) (28 October 2022) (Ruling)
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Republic of Phillipines v Court of Appeals
    G.R. No. 116111, January 21, 1999, 301 SCRA 366, 378-379
  • Oceanfreight (EA) Ltd v Technomatic Ltd & Another
  • Hass Petroleum (K) Limited v Iota Engineering and Construction Limited (Formerly Iota Excavations and Rentals Ltd); White Lotus Projects Limited (Intended 3rd Party)
    [2021] eKLR
  • Savings & Loan (K) Limited vs Kanyenje Karangaita Gakombe & another
    [2015] eKLR
  • Dunlop Pneumatic Tyre Co Ltd V Selfridge & Co Ltd
    [1915] AC 847
  • Agricultural Finance Corporation V Lengetia Ltd
  • Kenya National Capital Corporation Ltd V Albert Mario Cordeiro & Another
  • William Muthee Muthami V Bank Of Baroda
Jurisdiction invoked
Order 1 Rule 15 of the Civil Procedure Rules, 2010 (extension of time to issue a third party notice)

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, "Maina v Wamala (Environment and Land Case Civil Suit E154 of 2022) [2024] KEELC 1707 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1707/eng@2024-04-04

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