[2007] KEHC 3242 (KLR)
The court held that it could not grant the substantive orders sought against the third party at the appeal stage because the third party was not a party to the original suit and had not been given an opportunity to defend itself. The court emphasized that the third party must be allowed to present its case through...
Source-derived case information.
- Citation
- [2007] KEHC 3242 (KLR)
- Parties
- Appellant: Hon. Onesmus K. Mwangi; Respondent: Alice Wangari Maina; Defendant: Invesco Assurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 394 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Third Party Orders at Appeal Stage
- Outcome
- application dismissed with costs to the respondent and the third party
- Judges
- ARM Visram
- Legal Topics
- Third Party Proceedings, Indemnity, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hon. Onesmus K. Mwangi
Appellant
Alice Wangari Maina
Respondent
Invesco Assurance Co. Ltd
Defendant
Procedural Posture
Civil Appeal / Ruling on Application for Third Party Orders at Appeal Stage
Legal Issues
- 1 Whether the High Court at the appeal stage can grant substantive orders against a third party who was not a party to the original suit.
- 2 Whether the appellant is entitled to indemnity and release of deposited funds from the third party at the appeal stage.
Ratio Decidendi
The court held that it could not grant the substantive orders sought against the third party at the appeal stage because the third party was not a party to the original suit and had not been given an opportunity to defend itself. The court emphasized that the third party must be allowed to present its case through evidence at trial, and that the appeal stage is not the appropriate forum to determine liability or indemnity claims against a third party. The application was therefore dismissed as being procedurally improper and premature.
Court Disposition
application dismissed with costs to the respondent and the third party
Orders
- The application is dismissed with costs to the respondent and the third party.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 394 of 2006
HON. ONESMUS K. MWANGI ……...... APPELLANT/APPLICANT
VERSUS
ALICE WANGARI MAINA …….…………………... RESPONDENT
INVESCO ASSURANCE CO. LTD......PROPOSED THIRD PARTY
RULING
This is a rather unusual application. On 3rd August, 2006 the Appellant here obtained leave of the Court (Hon. Aluoch, J) to issue a 3rd Party Notice to Invesco Assurance Company Limited (“the third party”), and is now before this Court to seek orders that are fairly substantial, and orders that cannot possibly be given without giving the third party an opportunity to defend itself. Clearly, at this Appeal stage, this is notthe forum to ventilate a claim, and present a defence, in respect of the orders sought.
The orders sought against the third party are as follows:
“1. THAT Appellant/Applicant (the Defendant in RMCC Milimani No. 12474/04) is entitled to be fully indemnified from all judgments, orders, claims, relief, remedies and expenses, costs arising, obtained or to be obtained in RMCC Milimani RMCC No.12474/04 and this Appeal
2. THAT the Honourable Court do grant an order passing on to the Third Party liability for all judgments, orders, claims, relief, remedies and expenses, costs arising, obtained or that may be obtained by the Respondent (Plaintiff in RMCC No. 12474/94) against the Appellant/Applicant and or connected howsoever to the subject matter of this suit
3. THAT Kshs.2. 2 million (Kenya Shillings Two Million Two Hundred Thousand) deposited by the Appellant/Applicant in court on 3rd August 2006 vide Deposit Receipt No. B403168 to be released to the Appellant/Applicant forthwith.”
Of course, it is not possible for this Court to declare or order that the third party is liable to the Appellant, based on the affidavit evidence provided by the Applicant. The third party has a right to defend itself, and present its case, through evidence, as to why it is not liable. That can only be done at trial, not in this Appeal. The third party was not even a party to the suit in the Lower Court.
This application is highly misplaced, and I dismiss the same with costs to the Respondent and the third party.
Dated and delivered at Nairobi this 13th day of February, 2007.
ALNASHIR VISRAM
JUDGE