[2022] KEHC 16018 (KLR)

Mitsumi Computer Garage Ltd v Freight in Time Limited; Tandu Alarms Systems Limited & 3 others (Third party) (Civil Suit 367 of 2016) [2022] KEHC 16018 (KLR) (Commercial and Tax) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16018 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 367 of 2016

A Mabeya, J

December 2, 2022

Between

Mitsumi Computer Garage Ltd

Plaintiff

and

Freight in Time Limited

Defendant

and

Tandu Alarms Systems Limited

Third party

Securex Agencies (K) Limited

Third party

Eveready Security Guards Company

Third party

GA Insurance Limited

Third party

Ruling

1. Before court are two applications by the defendant dated 18/1/2022 (“the first application”) and 10/2/2022(“the second application”), respectively.

2. The first application was a chamber summons brought interalia under order 1 rule 22 of the Civil Procedure Rules. The defendant sought for the following orders: -“1. That this court does give directions on the future conduct of this matter.2. That the issue of liability and quantum be tried together between the defendant and the third parties and the court be at liberty to apportion liability and quantum between the defendant and the third party as if they were co—defendants.3. That the judgment dated 10/3/2021 entered in favour of the plaintiff in respect to this suit be stayed until third party proceedings are determined.4. That costs of this application be provided for.”

3. The grounds for the application were that third party notices had been duly served on all parties; that the third parties are enjoined to the suit and have entered appearance but have not filed defences and it would be expedient and time saving if the third parties were treated as co-defendants and all the issues tried at the same time.

4. In opposition, the 4th third party filed grounds of opposition dated 15/2/2022. It was contended that the defendant had not demonstrated any proper question to be tried regarding liability of the 4th third party to make a contribution or provide indemnity as claimed in the third party notice dated 27/5/2019; that the statement of defence tendered by the defendant, the statements of witnesses filed, and documents filed do not demonstrate any triable issue that may impose liability to the 4th third party that may give rise to a right of indemnity or contribution as sought in the third party notice dated 27/5/2019.

5. Further, it was contended that the defendant lost its right to indemnity and/or contribution as it failed to defend the claim that had been presented by the plaintiff. In the premises, the 4th third party sought prayed that the application be disallowed and the third party notice dated 27/5/2019 be struck out with costs.

6. The plaintiff filed a replying affidavit in opposition to the application. It was sworn on 16/2/2022 by its advocate on record, Wamae Ndegwa.

7. He stated that procedurally and after the respective third parties had entered appearance, the defendant was expected to move the court for directions within 14 days of close of pleadings as required by order 1 rule 2.

8. That this was not done and the defendant was only saved by the good graces of the court on December 19, 2019. That there is no basis in law where the court is supposed to stay a valid judgment on the basis that the defendant has a third party claim.

9. The 1st third party also filed grounds of opposition dated 24/3/2022. It contended that the defendant had not established any proper question to be determined in relation to the 1st third party's liability to the subject matter of the suit to entitle it to indemnity as claimed in the third party notice dated 24/5/2019.

10. That the pleadings submitted and filed by the defendant did not demonstrate the 1st third party's contribution to the subject matter of the suit to entitle the defendant to indemnity or contribution as claimed in the third party notice dated 24/5/2019.

11. Order 1 rule 22 of the Civil Procedure Rulesstates: -“If a third party enters an appearance pursuant to the third-party notice, the defendant giving the notice may apply to the court by summons in chambers for directions, and the court upon the hearing of such application may, if satisfied that there is a proper question to be tried as to the liability of the third party, order the question of such liability as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the suit, as the court may direct; and, if not so satisfied, may order such judgement as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party.”

12. On 19/2/2019, Kasango J held that the claim against the 3rd parties by the defendant would be determined after the case of plaintiff and defendant had been determined.

13. On 18/3/2021, judgment was entered in favour of the plaintiff where the court noted that the defendant failed to take directions as to the hearing of the claim between it and the third parties herein.

14. On 10/1/2022, the court determined an application by the defendant which sought inter-alia to have the aforementioned judgment set aside until third party proceedings were determined. The court observed at paragraph 22 of the ruling that: -“As regards prejudice, the proceedings of 22/2/2021 were regular. The judgment of 18/3/2021 was regular. The defendant would not suffer any prejudice as it can still pursue its claim against the third parties as ordered on December 19, 2019. ”

15. Based on the directions of Kasango J aforesaid and the said ruling of 10/1/2022, I believe that the issue of setting aside and/or staying the execution of the judgment is not open to the defendant. It has already been determined.

16. The judgment of 18/3/2021 found that the defendant was liable for the losses incurred by the plaintiff due to the theft of its goods while in the defendant’s custody.

17. On its part, the defendant has enjoined the 4 third parties. Some were entities it had contracted to secure its premises wherefrom the goods of the defendant were stolen. As regards the 4th third party, it is the defendant’s case that the 4th third party insured it against robbery and fire.

18. In my view, those are proper questions as to liability to be tried between the defendant and the third parties. It does not matter that the defendant failed to defendant the plaintiffs claim. That is an issue to be dealt with at the trial and not at the directions stage.

19. Accordingly, the application is partially successful as follows: -a.Prayer 2 thereof is granted while prayer 3 is denied.b.The third parties do file and serve their respective defences within 14 days of the date hereof.c.Each of the parties to bear own costs.

20It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF DECEMBER, 2022. A. MABEYA, FCIArbJUDGE