[2022] KEHC 10752 (KLR)

Njoka v Kamere t/a Kiarie Kamere & Co. Advocates (Civil Case 177 of 2017) [2022] KEHC 10752 (KLR) (Civ) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10752 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 177 of 2017

CW Meoli, J

June 7, 2022

Between

Davis Nyamu Njoka

Plaintiff

and

Joakim Kiarie Kamere t/a Kiarie Kamere & Co. Advocates

Defendant

Ruling

1. For determination is the chamber summons application dated 7th July 2021 by Joakim Kiarie Kamere (hereafter the Defendant) leave to issue and serve third party proceedings on Esmail Haji Ebrahim (hereafter the Intended 3rd Party). The motion is expressed to be brought under Section 3A of the Civil Procedure Actand Order 1 Rule 15 of theCivil Procedure Rules, inter alia, and based on the grounds on the face of the motion. The grounds are amplified in the supporting affidavit sworn by Defendant, who describes himself as an advocate of the High Court of Kenya.

2. To the effect that Davis Nyamu Njoka (hereafter the Plaintiff) filed this cause in August 2017 seeking an order for rendering of accounts in respect of all sums received by the Defendant while acting for the Intended 3rd Party who was the vendor in the transaction relating to the purchase, by the Plaintiff, of two land parcels in Thika owned by the Intended Third Party, described as LR. No. 1286/1 and LR. No. 14282; and that all sums held as purchase price be released to the Plaintiff. The Defendant deposes that for purposes of the just and fair determination of liability, the said Intended 3rd Party ought to be enjoined.

3. Ordinarily, an application of this nature is made ex parte but the Plaintiff having been served therewith filed a replying affidavit in opposition. He contends that this application is an afterthought and that the Defendant’s material including his witness statement did not assert that any of the purchase price sums were paid to the Intended Third Party. Moreover, that under the Civil Procedure Rules, an application of this nature ought to be brought within fifteen days after the close of pleadings. The Plaintiff views the application as one intended to scuttle the hearing of the case and should therefore be struck out with costs.

4. The motion was canvassed by way of brief submissions. On behalf of the Defendant, it was submitted that the motivation behind the application is to assist the court determine the issue of liability upon hearing of all the parties involved in the sale and purchase of LR. No. 12861/1 and LR. No. 12861/2 as set out in the supporting affidavit. That in the Defendant’s honest belief, the joinder of the third party while facilitating his right to a fair trial will not be prejudicial to the Plaintiff. The Defendant reiterated the provisions of Article 159(d) of the Constitution commanding the court to eschew undue regard for procedural technicalities and asserted that whereas the pleadings closed in 2018, the matter had not proceeded substantially, and the Plaintiff had not demonstrated how joinder of the intended 3rd Party would prejudice his case. In conclusion it was contended that by virtue of the provisions of Section 3A of the Civil Procedure Actand Order 1 Rule 10(2) of the Civil Procedure Rulesthe court retained inherent power at any stage of the proceedings to enjoin a party found necessary to the proceedings before it. He urged that his application be allowed.

5. Counsel for the Plaintiff reiterated that there was no factual justification for the joinder of the 3rd Party in the Defendant’s pleadings and material and the motion is an afterthought intended to scuttle the hearing of the main suit. It was emphasized that pleadings closed in 2018 and the Defendant had neither explained his delay in filing the motion, nor sought extension of time to file the instant application, and it ought to be dismissed with costs.

6. The court has considered the material canvassed in respect of the motion and perused the parties’ respective pleadings and material on record. It is undisputed that this dispute arose from an agreement entered into between the Plaintiff and the intended 3rd party, for the purchase by the Plaintiff from the vendor of two land parcels in Thika, and that the Defendant in his capacity as an advocate represented the vendor in the said transaction. Further there is no dispute that pursuant to the agreement, some monies were received by the Defendant from the Plaintiff on account of the agreed purchase price. It however appears that the agreement was not completed, and the Plaintiff demanded refund of the said monies from the intended 3rd party and the Defendant, and eventually filed this originating cause in 2017. Admittedly, the pleadings herein closed in July 2022and the sticking point is whether the Court should grant leave to the Defendant to enjoin the intended 3rd Party so late in the day, or at all.

7. Order 1 Rule 15 of the Civil Procedure Rules invoked in the Defendant’s motion provides in the relevant part that:(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.(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,(2)A copy of such notice shall be filed and shall be served on the third party according to the rules relating to the service of a summons.(3)The notice shall state the nature and grounds of the claim, and shall, unless otherwise ordered by the court, be filed and served within fourteen days of leave, and shall be in or to the effect of Form No. 1 of Appendix A with such variations as circumstances require and a copy of the plaint shall be served therewith.”

8. In Transami (U) Ltd v Trans Ocean (U) Ltd Kampala High Court Civil suit number 145 of 1987 (1994) 1 KAR 175, the Court explained the rationale behind third party notice and proceedings to be the obviation of a multiplicity of suits which result in delay and high costs. This object resonates with section 1A and 1B of the Civil Procedure Act. The power of the court to grant leave to issue third party notice is discretionary and the key consideration in an application for leave for joinder of a third party was stated by the Court of Appeal for East Africa in Yafesi Walusimbi v Attorney General of Uganda (1959) EA 223, to be:“In order to join a third party, the subject matter between the third party and the defendant must be the same as the subject matter between the plaintiff and the defendant and the original cause of action must be the same”.

9. The court held in EK Kagwa vs. Costa (1963) EA 213 & Sango Bay Ltd vs. Dresdner Bank Ltd (1971) EA 307, that:“Before the court can exercise its discretion to issue third party notice it has to evaluate the allegations of the plaintiff in terms of his legal claim to the relief he is seeking. The court also has to evaluate the defendant’s allegations against the third party and has to be satisfied that the substance of each claim is the same and that there is a linkage between all the claims before issuing the notice”.

10. In this instance, it appears that the cause of action arose from the same transaction in which the proposed third party as a vendor represented by the Defendant entered into an agreement for the sale of two land parcels to the Plaintiff, pursuant to which the Defendant received certain monies on behalf of the vendor. Although the Defendant’s witness statement does not indicate that any amounts of that money were released to the vendor, this is asserted at paragraph 3(a) of his Replying affidavit. In both instances, the Defendant asserts that he was merely an agent of the vendor, and that the Plaintiff’s cause of action lies with the vendor, therefore.

11. On his part, the Plaintiff asserts he paid monies under the agreement to the Defendant, as stakeholder and that the Defendant ought to render accounts and release the monies to him. In the Plaintiff’s material, there are demand letters to both the vendor and the Defendant, seeking refund of the monies paid by him under the agreement. Given the common transaction between the parties, their admitted relationship and roles, it would be more convenient that the interlinked claims between the parties be determined in one suit. In my view, such an approach would accord with the overriding objective in section 1A and 1B of the Civil Procedure Act to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes.

12. The Plaintiff has correctly protested the late filing of this application by the Defendant, as pleadings closed in 2018. The motion ought to have been filed 15 days after the close of pleadings. Besides, the Defendant has not by his motion sought the extension of time to apply. However, as the suit is yet to go to hearing, the Plaintiff will not be unduly prejudiced, and justice can still be done between the parties through the final resolution of the issues arising between them. Consequently, the court is inclined to invoke its discretion under Order 50 Rule 6 of the Civil Procedure Rules in the Defendant’s favour so as to enlarge time for applying, and to allow his motion. The third-party notice is to be issued and served within 14 days of today’s date. Costs will be in the cause. It is so ordered.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 7TH DAY OF JUNE 2022C. MEOLIJUDGEIn the presence of:For the Plaintiff: Mr. MogeniFor the Defendant: Mr. MandalaC/A: Carol