[2016] KEHC 1064 (KLR)
The court held that the third parties' application for leave to appeal against the judgment entered between the plaintiff and the defendant was misconceived and without merit. The issue of indemnity between the defendant and the third parties had already been tried and determined in favour of the defendant, and the...
Source-derived case information.
- Citation
- [2016] KEHC 1064 (KLR)
- Parties
- Applicant: Eric Kevin Kiriko Mwaura; Applicant: Murang’a Steel & Hardware Ltd; Respondent: Joel Maguru; Respondent: Joseph Mwaura Mwangi
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 77 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal
- Outcome
- application dismissed with costs
- Judges
- DW Mbuteti
- Legal Topics
- Third Party Proceedings, Leave to Appeal, Indemnity, Judgment on Admission
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eric Kevin Kiriko Mwaura
Applicant
Murang’a Steel & Hardware Ltd
Applicant
Joel Maguru
Respondent
Joseph Mwaura Mwangi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal
Legal Issues
- 1 Whether third parties can seek leave to appeal against a judgment entered between the plaintiff and the defendant when the issue of indemnity has already been determined.
- 2 Whether there exists a direct nexus between the plaintiff and the third parties to warrant the third parties' challenge of the judgment.
Ratio Decidendi
The court held that the third parties' application for leave to appeal against the judgment entered between the plaintiff and the defendant was misconceived and without merit. The issue of indemnity between the defendant and the third parties had already been tried and determined in favour of the defendant, and the third parties did not appeal that judgment. The judgment obtained by the plaintiff against the defendant was distinct and separate from the indemnity issue and did not create a direct nexus between the plaintiff and the third parties. Therefore, the third parties could not challenge the plaintiff's judgment against the defendant, as their only liability was to the defendant in...
Court Disposition
application dismissed with costs
Orders
- The notice of motion dated 01/10/2014 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
MISC CIVIL APPLICATION NO 77 OF 2014
1. ERIC KEVIN KIRIKO MWAURA
2. MURANG’A STEEL & HARDWARE LTD…...........APPLICANTS
VERSUS
1. JOEL MAGURU
2. JOSEPH MWAURA MWANGI.…………….….RESPONDENTS
R U L I N G
1. The Applicants in the application the subject of this ruling (notice of motion dated 01/10/2014) were third parties in the lower court where the 2nd Respondent (Joseph Mwaura Mwangi) was the plaintiff and the 1st Respondent (Joel Maguru) was the defendant. The plaintiff had sued the defendant for damages in negligence. The defendant issued a third party notice upon the Applicants (Eric Kevin Kiriko Mwaura and Murang’a Steel & Hardware Limited)claiming indemnity from them in respect to the plaintiff’s claim.
2. The lower court directed that the issue of indemnity as between the defendant and the third parties be tried first before the suit as between the plaintiff and the defendant could be tried. That issue of indemnity was indeed tried by oral evidence, and judgment delivered on 20/04/2012 in favour of the defendant. The third parties did not appeal against that judgment.
3. Thereafter the suit between the plaintiff and the defendant was disposed of by way of an application for judgment on admission. That application was allowed and judgment entered in favour of the plaintiff. It is that judgment that the third parties now seek leave to appeal against. The defendant did not appeal against the judgment.
4. With respect the third parties’ present application is misconceived. There was no issue to be tried as between the third parties and the plaintiff, and the plaintiff’s judgment is against the defendant, not against the third parties. The issue of indemnity as between the defendant and the third parties was distinct and separate from the plaintiff’s claim against the defendant, and was tried separately. The third parties never challenged the judgment against them in favour of the defendant in respect to that issue of indemnity. There is no direct nexus between the plaintiff and the third parties, and he cannot execute his judgment obtained against the defendant directly against the third parties.
5. The corollary of course is that the plaintiff’s judgment against the defendant is no direct concern of the third parties, beyond their liability to the defendant in indemnity in respect thereto. They cannot challenge that judgment. It is worth repeating that they did not challenge the defendant’s judgment for indemnity against themselves.
6. The notice of motion dated 01/10/2014 is misconceived and in any event has no merit. It is hereby dismissed with costs to the Respondents. It is so ordered.
DATED AND SIGNED AT MURANG’A THIS 12TH DAY OF MAY 2016
H P G WAWERU
JUDGE
DELIVERED AT MURANGA THIS 13TH DAY OF MAY 2016