https://new.kenyalaw.org/akn/ke/judgment/scc/2026/202

**REPUBLIC OF KENYA** **IN THE SMALL CLAIMS COURT OF KENYA AT UASIN GISHU COUNTY** **COURT NAME: ELDORET SMALL CLAIMS COURT** **CASE NUMBER: SCCCOMM/E432/2026** **JOSIM INSTANTANEOUS CONSULTIUM LIMITED VS FRANCIS JUMA ESKHA** **RULING** 1. The Applicant filed a Notice of Motion Application dated 6th May, 2026, supported by the Affidavit of Francis Juma Eskha sworn on the same date for orders that; 2. spent 3. That Patrick Wecholi Sikwanyi be enjoined in the matter as a third party. 4. That liability be passed over to the 3rd party in the sum of ksh 853,064.25/- 5. That judgment be entered against the third party in the sum of ksh 853,064.25/- together with interest and costs of this application be in the cause. 6. The respondent deponed that the intended third party had been involved in a motor vehicle road accident where he suffered extreme injuries and was taken in the Intensive Care unit, and needed urgent medical attention, as a result his family approached the respondent and he paid a deposit of ksh 300,000/- being the hospital bill and was given the title deed to hold it as a lien. 7. He deposes that if any commitment was made to the hospital through the plaintiff it was made in the understanding that the intended 3rd party would refund the ksh 300,000/- and to pay the hospital balance. That it is imperative for the 3rd party to be brought into the case for full determination of the case. 8. The application was not opposed by the intended third party despite service vide the return of service dated 24th June, 2026 sworn by one Sebastian Tikolo. However, the claimant filed a replying affidavit sworn on 19 May, 2026 by Isaiah Sifuna Walubengo who deponed that the its agreeable to prayer number 2 and has no objection to the enjoining of Patrick Wecholi Sikwanyi as a third party to the suit. That the acknowledged loan amount in dispute was eventually channeled towards the medical bills of the intended 3rd party at Life care Hospital Bungoma and his presence in these proceedings will assist in arriving at a just conclusion. Prayer numbers 3 and 4 was vehemently opposed since the same seek to summarily pass liability to the 3rd party and pass judgment upon him at this preliminary stage. Further, the deponent reiterated that the claimant’s primary cause of action is against the respondent as per the loan agreement entered into on or about 2nd July 2025. 9. He further deponed that whatever private arrangement, collateral or understanding existed between the respondent and the family of the 3rd party are separate matters that do not absolve the respondent of his contractual obligations to the claimant. That it is in the interest of justice that the 3rd party be enjoined to this suit, the application seeking to pass liability and enter judgment immediately be dismissed and the matter be directed to proceed to a full hearing on merit. 10. Directions were taken for parties to file submissions within 7 days at the time of writing this ruling only the claimant had filed its submissions dated 3rd July, 2026 which have been considered. The issue for determination herein is whether the application is meritorious. 11. Order 1 Rule 15 of the Civil Procedure Rules provides; (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. 1. The rationale of the above provision is to provide a procedure through which a respondent may bring into the suit a third party who is not already a party to the proceedings, where that third party may bear legal responsibility arising from the claimant's claim. 2. Order 1 rule 17 talks of default of appearance by the third party, the intended third party was served herein as evidenced by the return of service dated 24th June, 2026 but failed to enter appearance or file appropriate papers or to attend court and in default, he is deemed to admit the validity of the decree to be obtained against the respondent. Default judgment can therefore be obtained upon the application by the respondent herein. I agree with the claimant's submissions that the third-party proceedings cannot be used as a backdoor mechanism for a respondent to wash his hands of a primary claim and that prayer 3 and 4 of the application seek final and substantive reliefs through an interlocutory application which is legally untenable and premature. 3. The mere failure by a third party to enter appearance after service of a third-party notice does not ipso facto absolve the respondent of liability to the claimant. Third-party proceedings are intended to determine questions of indemnity or contribution as between the defendant and the third party. The claimant's cause of action against the respondent remains intact and must be determined on its merits. Consequently, while the respondent may be entitled to seek default judgment against the third party in accordance with the Civil Procedure Rules, such judgment does not have the effect of extinguishing the claimant's claim against the respondent or removing the respondent from the proceedings. 4. Having found that the proposed third-party ought to be joined, the court is not persuaded that prayers 3 and 4 are merited, the same are premature and must wobble and fall. In the upshot, prayer number 3 and 4 of the application dated 6th May, 2026 is dismissed with costs. 5. Matter to be mentioned on 28th September, 2026 for compliance with order 11 of the CPR and to take a hearing date. Ruling dated and delivered at Eldoret this 7th day of August 2026 M.E Aligula- RM, In the presence of: C/A Mr. Lepatoiye Claimant: Mr Nabei for the claimant Respondent: N/A