[2005] KEHC 2845 (KLR)
The court found that the defendant, despite being granted leave to issue a Third Party Notice to East African Building Society Ltd on 13th January 2000, failed to serve the notice for over five years. The absence of any explanation or opposition from the defendant led the court to conclude that the proceedings...
Source-derived case information.
- Citation
- [2005] KEHC 2845 (KLR)
- Parties
- Plaintiff: Prof. Sam Tulya Muhika Kapala; Defendant: Thomas Ludindi Mwadeghu; Respondent: East African Building Society Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1615 of 1999
- Procedural Posture
- Civil Case / Ruling on Third Party Striking Out Application
- Outcome
- Application to strike out proceedings against the Third Party granted.
- Judges
- JL Osiemo
- Legal Topics
- Third Party Proceedings, Striking Out Proceedings, Sale of Land, Transfer of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Prof. Sam Tulya Muhika Kapala
Plaintiff
Thomas Ludindi Mwadeghu
Defendant
East African Building Society Ltd
Respondent
Procedural Posture
Civil Case / Ruling on Third Party Striking Out Application
Legal Issues
- 1 Whether the proceedings against the Third Party should be struck out for failure to serve the Third Party Notice.
- 2 Whether the defendant complied with the court's leave to serve the Third Party Notice.
Ratio Decidendi
The court found that the defendant, despite being granted leave to issue a Third Party Notice to East African Building Society Ltd on 13th January 2000, failed to serve the notice for over five years. The absence of any explanation or opposition from the defendant led the court to conclude that the proceedings against the Third Party were improperly maintained. The court therefore granted the application to strike out the proceedings against the Third Party, upholding the principle that procedural rules regarding service of Third Party Notices must be strictly observed to ensure fairness and efficiency in litigation.
Court Disposition
Application to strike out proceedings against the Third Party granted.
Orders
- Proceedings against the Third Party, East African Building Society Ltd, are struck out as prayed in paragraphs 1 and 2 of the Notice of Motion dated 14th January 2005.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO.1615 OF 1999
PROF.SAM TULYA MUHIKA KAPALA…………………..PLAINTIFF VERSUS THOMAS LUDINDI MWADEGHU…………………..DEFENDANT EAST AFRICAN BUILDING SOCIETY……………….3RD PARTY
RULING
BY Sale Agreement dated 27th May 1998 made between the plaintiff and the defendant, the plaintiff agreed to buy the suit property known asLR NO. NAIROBI/BLOCK 32/591 at a consideration of Kshs.3,400,000/=. It was an express term of the agreement that upon payment of the full purchase price the defendant would deliver to the plaintiff:
(ii) A transfer deed duly executed
<p 120px;"=""> (iii) Consents required by law
The full purchase price was paid by 20th November 1998 but the defendant failed to deliver the above stated documents to facilitate the transfer.
The plaintiff filed this suit seeking orders that the defendant beordered to deliver the above document to him to effect the transfer. The defendant filed a defence dated 7th November 1999 in which he averred that the suit property wasmortgaged to East African Building Society Ltd who have refused to discharge the property.
On an application by the defendant the court on 13th January 2000 granted leave to the defendant to issue a Third Party Notice to the East African Building Society Ltd the applicant herein.
The applicant now applies for orders that the proceedings herein against the Third Party be struck out.The application is based on the ground that the defendant has failed to serve the Third Party Notice since the leave was granted on 13th January 2000.
The respondent/defendant was served but did not show up to defend the application. Orders as prayed in paragraph 1 and 2 of the Notice of Motion dated 14th January 2005 granted.
Dated and delivered at Nairobi this 5th day of May 2005.
J.L.A. OSIEMOJUDGE