Lebasha v Mucheru (Civil Suit E004 of 2025) [2025] KEMC 161 (KLR)
The bottom line
#A Kenyan court dismissed a bid to drag a land seller into a suit because the defendant applied for leave before serving him the third party notice.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to issue a Third Party Notice under Order 1 rule 15 CPR can be granted where the notice was not served on the proposed third party at the time of the application
No - service of the third party notice is required at the time of applying for leave, and non-service is fatal to the application.
Order 1 rule 15(2) requires a copy of the third party notice to be filed and served on the third party according to the rules on service of summons. The court held that service must occur at the time of applying for leave, not after it is granted. Non-service deprived the proposed third party of a right to be heard on the application itself, and the rule was held mandatory, not optional, rendering the application devoid of merit.
Consequences of obtaining an order affecting a party without serving that party
An order obtained without serving the party affected by it is a nullity and must be set aside ex debito justitiae, following Mary Njeri v Aga Khan Health Services and Official Receiver Continental Bank of Kenya Ltd v Mukunya.
The court adopted Ojwang' J's statement in Mary Njeri that a third party notice is a pleading and the joinder process must be openly ventilated with proper service. That authority in turn adopted Official Receiver Continental Bank of Kenya Ltd v Mukunya, holding that an order obtained without serving an affected party is a nullity which must be set aside ex debito justitiae. The court applied these principles to dismiss the unmeritorious application.
Legal principles established
#- A Third Party Notice is a pleading and the proposed third party must be served with the notice concurrently with the application for leave, so that he has a right to be heard before leave is granted.
- The rule on service of a third party notice at the time of applying for leave is mandatory, and failure to comply is fatal to the application.
Court orders
#- 1.The application for leave to issue a Third Party Notice is dismissed with costs
- 2.The main suit shall be set down and proceed for hearing
- Jurisdiction invoked
- Order 1 rule 15 of the Civil Procedure Rules - leave to issue a Third Party Notice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lebasha v Mucheru (Civil Suit E004 of 2025) [2025] KEMC 161 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/161/eng@2025-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.