[2016] KEHC 6835 (KLR)
The court found that although the application for leave to issue a third party notice was not filed simultaneously with the defence as required by law, the applicant provided sufficient grounds for the delay. The court was satisfied with the merits of the application, noting that the defendant had insurance policies...
Source-derived case information.
- Citation
- [2016] KEHC 6835 (KLR)
- Parties
- Plaintiff: Crest Foam Uganda Ltd; Defendant: Jiwani Impex Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 13 of 2014
- Procedural Posture
- Civil Case / Ruling on Ex Parte Chamber Summons for Leave to Issue Third Party Notice
- Outcome
- application allowed
- Judges
- DO Ogembo
- Legal Topics
- Third Party Proceedings, Insurance Indemnity, Breach of Contract, Negligence in Transit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Crest Foam Uganda Ltd
Plaintiff
Jiwani Impex Limited
Defendant
Procedural Posture
Civil Case / Ruling on Ex Parte Chamber Summons for Leave to Issue Third Party Notice
Legal Issues
- 1 Whether the defendant should be granted leave to file the application for third party notice out of time.
- 2 Whether the defendant is entitled to serve a third party notice on APA Insurance Limited for indemnity or contribution.
Ratio Decidendi
The court found that although the application for leave to issue a third party notice was not filed simultaneously with the defence as required by law, the applicant provided sufficient grounds for the delay. The court was satisfied with the merits of the application, noting that the defendant had insurance policies with APA Insurance Limited that potentially covered the loss in question. Therefore, the court exercised its discretion to grant leave for the late filing and service of the third party notice, ensuring that the defendant's right to seek indemnity or contribution from its insurer was preserved.
Court Disposition
application allowed
Orders
- Leave is granted to the defendant to file the application and serve a third party notice on APA Insurance Limited out of time.
- The third party shall be served with the third party notice within 7 days of this order.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 13 OF 2014
CREST FOAM UGANDA LTD :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF
VERSUS
JIWANI IMPEX LIMITED :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT
R U L I N G
The application before the court is an Ex-parte chamber summons dated and filed herein on 13th November 2015. The application seeks the following orders;-
1. That this Honourable Court be pleased to grant the applicant leave to file this application out of time and to issue and serve a Third Party Notice upon APA INSURANCE LIMITED as per the annexed draft Third Party Notice marked as “A”
2. That costs of this application be provided for.
The application is premised on the grounds set out therein and in the affidavit of MOHAMED YUSUF JIWANI sworn on 13th November 2015.
In brief, the Applicant case is that this action has been brought against the defendant by the plaintiff to recover a sum of Kshs.5,637,477 resulting from loss of plaintiff’s goods while in transit. The plaintiff broadly alleges in the plaint that the loss of the goods was in breach of contract and the same was occasioned by the defendant’s negligence and/or that of its employees, servant or agents. The defendant, however, denies breach of contract or that the said loss was caused by negligence on its part or of its employees, servant or agents but in the event of the defendant being held liable to the plaintiff, the defendant shall claim indemnity and/or contribution from APA INSURANCE LIMITED on the basis of Insurance Policies No. P/20/2008/0521/9 (Carrier Legal Liability Cover) and No. P/20/2011/1011/123 (Fidelity Guarantee). Under the aforesaid policies, the defendant was insured by APA INSURANCE LIMITED against loss or damage of cargo while in transit and loss arising out of theft or dishonesty of its employees in the course of the employment.
I have considered the application. The law demands that this land of application be filed simultaneously with the filing of defence. This was not the case in this application and is the reason why leave is being sought for late filing of the application. Apart from this I have no issue with the merits of the application. I have considered the application, and on its merit the same is allowed with costs in the cause. The third party shall be served with the Third party Notice within 7 days of this order.
Orders accordingly.
READ, DELIVERED AND DATED, AT NAIROBI THIS 8TH DAY OF FEBRUARY 2016.
E. K. O. OGOLA
JUDGE
Ruling Read in open court in the presence of:
No Appearance for Plaintiff
No Appearance for Defendant
Teresia Court Clerk