https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/184

County Government of Nyeri v Nyaga & 2 others (Civil Case E242 of 2021) [2026] KEMC 184 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEMC 184 (KLR) Republic of Kenya In the Murang'a Law Courts Civil Case E242 of 2021 GK Waithira, SRM June 24, 2026 Between County Government of Nyeri Plaintiff and Egla Murugi Nyaga Defendant and APA Insurance Company (KE) 1st Proposed Third Party David Muthee Njeru 2nd Proposed Third Party Ruling 1.This ruling disposes of an application dated 1st September 2025 whereby the defendant/applicant seeks the following order;a.Spentb.Spentc.That in the alternative leave be granted for the defendant to take out a third-party notice to the proposed 1st and 2nd third party;d.That in the alternative a Third-Party Notice be and is hereby issued to the 1st and 2nd Third Parties herein to be enjoined in this matter;e.That upon hearing and determination of this application, a third-party notice be served upon the 1st and 2nd third parties herein and they be deemed admitted as the 1st and 2nd third party and be allowed to file their responses.f.That costs of this application be in the cause. 2.The defendant/ applicant, in her affidavit sworn in support of the application on even date, she claimed that her vehicle was involved in an accident with the plaintiff’s vehicle. The matter was duly reported to her insurer through her insurance agent one Mr. Mbuthia. She paid the required excess fee and furnished the insurer with the documents relating to the suit. According to the applicant, the insurer and the agent were duty bound to take up the matter. The applicant therefore urged the court to allow the application for joinder to ensure all issues in controversy were brought before the court for adjudication. 3.Although the plaintiff did not object to the application, this court will nevertheless determine the application on merit. Issues, Analysis And Determination 4.The application before this court is premised on Order 1 Rule 15 of the Civil Procedure Rules which provides15.Notice to third and subsequent parties [Order 1, rule 15.](1)Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party)—(a)that he is entitled to contribution or indemnity; or(b)that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or(c)that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit. 5.There are several options available in determining an application to join a third party. The court may strike out the third party notice, it may direct allow joinder of the third party and direct that the issue of liability be tried at the trial or it could direct that the issue of liability be tried after the trial of the suit. (See Josphat Njuguna Kariuki vs Simon Karichu Irungu [2004] KEHC 2063 (KLR) 6.In this case, the applicant has urged this court to grant leave for the joinder of the proposed 3rd parties to the suit. She does not specify her nexus to the intended 1st or 2nd third party. This court cannot establish with certainty that the 1st intended 3rd party is the applicant’s insurer in the absence of an insurance policy document or other evidence. 7.The issues herein fall on all fours with the issues raised in APA Insurance Limited v Genesis Highway Junior School & 3 others (Civil Appeal E058 of 2023) [2024] KEHC 12357 (KLR) (14 October 2024) (Judgment) where the court, on appeal, allowed a preliminary objection raised by APA Insurance Limited opposing the issuance of Third-Party Notice against it. 8.Guided by the foregoing authority, this court finds that even assuming that the applicant had proved that the 1st intended 3rd party was her insurer, the application for leave to issue a third-party notice against it would not succeed. The courts have held that an insurer cannot be joined in a claim for tort as a cause of action as that would convolute the determination of the suit between the plaintiff and the defendant. Further, a claim against an insurance company arises after liability and quantum has been determined by the court. To do otherwise would be to act in violation of Section 10 (1) of the Insurance (Motor Vehicles Third Party Risks) Act which provides;10.Duty of insurer to satisfy judgments against persons insured(1)If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. 9.Regarding the 2nd proposed 3rd party, the applicant has similarly not indicated how he is connected to the present suit. Going by the averments made in the affidavit sworn in support of the application it is presumed that the 2nd proposed 3rd party is the insurer’s agent. The applicant has not demonstrated how the 2nd proposed third party is obliged to contribute or indemnify her against the claim by the plaintiff. 10.In the end, this court finds no merit in the application dated 1st September 2025. The same is struck out. 11.Costs shall be in the cause. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 24TH DAY OF JUNE 2026.HON. GRACE WAITHĨRASENIOR RESIDENT MAGISTRATERuling Read On The Virtual Platform In The Presence Of;C/a JeremiahNo Appearance For The PlaintiffMr. Kivuti For The Defendant/applicant