CIVIL
LITIGATION
JURISDICTION
AND METHODS OF COMMENCING A SUIT-
Learned Judge Nyarangi
sitting at the Mombasa High Court in 1989 ruled in the locus classicus case of Owners of Mv Lillian S v Caltex Oil[1]
Kenya that ‘Jurisdiction is everything. Without it a court or judicial decision
making body can’t make any step. It must down its tools’.
Jurisdiction is the
practical authority granted to a legal body to administer justice within a
defined area of responsibility. This is an early determination that must be
made in each pending action as to which court the suit must be filed. It is
granted to a court by statute or the Constitution.
Is there a nexus
between judicial authority and jurisdiction? Judicial authority is the power
that the court system has acquired from the people to administer justice
amongst the people themselves. The people ceded this authority to the
Judiciary. Whereas jurisdiction is the practical authority granted to a legal
body to administer of justice within a defined area of responsibility. It is
concluded that jurisdiction springs from the fountain of judicial authority.
Article 159 of the
Constitution of Kenya 2010 states that judicial authority is derived from the
people and vests in, and shall be exercised by, the courts and tribunals
established by or under this Constitution. The principles that guide the exercise
of judicial authority are that justice shall be done to all, irrespective of
status, justice shall not be delayed, justice shall be administered without
undue regard to procedural technicalities and the purpose and principles of
this Constitution shall be protected and promoted[2].
Alternative forms of
dispute resolution including reconciliation, mediation, arbitration and traditional
dispute resolution mechanisms shall be promoted[3]
Traditional dispute
resolution mechanisms shall not be used in a way that, contravenes the Bill of
Rights, is repugnant to justice and morality or results in outcomes that are
repugnant to justice or morality or a way that is inconsistent with this
Constitution or any written law[4].
Suits
Any court shall,
subject to the provisions herein contained, have jurisdiction to try all suits
of a civil nature excepting suits of which its cognizance is either expressly
or impliedly barred. No court shall proceed with the trial of any suit or proceeding
in which the matter in issue is also directly and substantially in issue in a
previously instituted suit or proceeding between the same parties, or between
parties under whom they or any of them claim, litigating under the same title,
where such suit or proceeding is pending in the same or any other court having
jurisdiction in Kenya to grant the relief claimed.
This section provides
that where a suit is instituted in a court to which the Act applies, that court
shall not proceed with the trial of the suit if, the matter in issue in the
present suit is also directly and
substantially in issue in a previously instituted suit between the same
parties, the previously instituted suit is pending, in the same court in which the
subsequent suit is brought, in any other court having jurisdiction in Kenya
(whether superior or subordinate), where the previously instituted suit is
pending in any other court competent to grant the relief claimed.[5] The
doctrine under discussion is res sub
judice, a Latin term that means ‘thing not decided’ or ‘thing not
adjudged’. This is when a matter is under trial or being considered by a judge
or court. The term may be used synonymously with ‘the present case’ or ‘the
case at bar’. It is generally considered inappropriate to comment on matters sub judice which can be an offence in
itself leading to contempt of court proceedings. The purpose of res sub judice is to prevent courts of
concurrent jurisdiction from simultaneously trying two parallel suits in
respect of the same subject matter in issue[6].
No court shall try any
suit or issue in which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating under the same
title, in a court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and finally decided
by such court[7].
The doctrine under discussion is res
judicata. This doctrine has two rationale. First, that hardship to the
individual that he should litigate twice for the same cause is unacceptable.
Second, that it is in the public interest that there should be an end to
litigation. Essentially, every suit must be grounded on a cause of action, and
there being no cause of action to sustain the second suit, it having been
merged in the previous judgment, the subsequent suit cannot stand[8].
Res
judicata is distinguished from res sub judice in two respects. First, that res sub judice relates to a matter which is pending in the same or
any other court having jurisdiction in Kenya to rant the relief claimed.
Second, res judicata relates to a
matter in which the issue raised has previously been raised and has been heard
and finally decided by court. Section 6 essentially bars the trial of a suit in
which the matter directly and substantially in issue is pending trial in a
previously fi led suit, whereas section 7 bars the trial of a suit or an issue
in which the matter directly and substantially in issue has already been
adjudicated upon in a previous suit[9].
Every suit shall be
instituted in the court of the lowest grade competent to try it, except that
where there are more subordinate courts than one with jurisdiction in the same
district competent to try it, a suit may, if the party instituting the suit or
his advocate certifies that he believes that a point of law is involved or that
any other good and sufficient reason exists, be instituted in any one of such
subordinate courts: Provided that: (i) if a suit is instituted in a court other
than a court of the lowest grade competent to try it, the magistrate holding
such court shall return the plaint for presentation in the court of the lowest
grade competent to try it if in his opinion there is no point of law involved
or no other good and sufficient reason for instituting the suit in his court[10].
Subject to the
pecuniary or other limitations prescribed by any law, suits:
(a) for the recovery of
immovable property, with or without rent or profi ts;
(b) for the partition
of immovable property;
(c) for the
foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable
property;
(d) for the
determination of any other right to or interest in immovable property;
(e) for compensation
for wrong to immovable property;
(f) for the recovery of
movable property actually under distraint or attachment, where the property is
situate in Kenya, shall be instituted in the court within the local limits of
whose jurisdiction the property is situate: in respect of the value of the
subject-matter of the suit, the entire claim is cognizable by such court[11].
The
proviso to section 12 provides that suits to obtain relief respecting, or compensation
for wrong to immovable property held by the defendant or on his behalf, be
instituted at the plaintiff’s option either in the court within the local
limits of whose jurisdiction the property is situate, or in the court within
the local limits of whose jurisdiction the defendant actually and voluntarily resides,
or carries on business, or personally works for gain.
Where a suit is to
obtain relief respecting, or compensation for wrong to, immovable property
situate within the jurisdiction of different courts, the suit may be instituted
in any court within the local limits of whose jurisdiction any portion of the
property is situate, provided that, in respect of the value of the subject
matter of the suit, the entire claim is cognizable by such court[12].
Where a suit is for
compensation for wrong done to the person or to movable property, if the wrong
was done within the local limits of the jurisdiction of one court and the
defendant resides or carries on business, or personally works for gain, within
the local limits of the jurisdiction of another court, the suit may be
instituted at the option of the plaintiff in either of those courts[13].
No objection as to the
place of suing shall be allowed on appeal unless such objection was taken in
the court of first instance and there has been a consequent failure of justice[14].
Every suit shall be
instituted in such manner as may be prescribed by rules[15].
Examples
of Jurisdictional Authority
Subject
Matter Jurisdiction
This occurs when a
court can only hear matters based on a specific field of law which is within
the courts authority. For example in Kenya we have the Environmental Land and
Labour relations court that handles only land and labour matters.
Personal
Jurisdiction
This is the power of a
court to require a defendant to appear before it. A court must not only have
jurisdiction over the subject matter but also over the parties to the
litigation. If the defendant comes to court then he submits to the jurisdiction
otherwise it will depend on whether the defendant is domicile within the
geographic area of the court’s jurisdiction.
Jurisdiction
in rem
This is the power that
a court has over property or status.
Monetary
Jurisdiction
This is when the courts
limit their jurisdiction to the amount of money that is in controversy. In the
Magistrates court jurisdiction is divided according to the maximum
jurisdictional amounts. If a court receives a matter whose jurisdictional limit
has been surpassed by the amount in the controversy, it will direct that the
matter be filed at the next level or the party chooses to waive his right to
any judgement that exceeds the maximum[16].
Methods
of Commencing a Suit
Interpleader
Interpleader
Where two or more
persons claim adversely to one another the same debt, sum of money or other
property, movable or immovable, from another person, who claims no interest
therein other than for charges or costs and who is ready to pay or deliver it
to the rightful claimant, such other person may institute a suit of interpleader
against all the claimants, or where a suit dealing with the same subject-matter
is pending may intervene by motion on notice in such suit, for the purpose of
obtaining a decision as to the person to whom the payment or delivery shall be
made, and of obtaining indemnity for himself: Provided that where any suit is
pending in which the rights of all parties can be properly decided no such suit
of interpleader shall be instituted[17].
An interpleader suit
arises where two parties differ over ownership or entitlement to money or
property which is in the possession of third party who does not himself claim
ownership save that he does not know the true owner. The issue then becomes one
of determination of right as between the contestant so as to enable the third
party to pass the property to the right owner while suit for wrongful
alienation and transfer to a wrong party. The third party may force the parties
who claim ownership to litigate for determination of ownership in an
interpleader suit. An interpleader suit is one in which the real dispute is
between the defendants only who interplead against each other instead of
pleading against the plaintiff as in an ordinary suit A feature of every
interpleader suit is that there must be some debt or sum of money or other
property in dispute between the defendants only and the plaintiff must be a
person who claims no interest therein other than charges or costs and who is
ready to pay or deliver it to such of the defendants who may be declared by the
court to be entitled to it[18].
Interpleader
Procedure
Interpleader is a form
of action originally developed under equity jurisprudence. It allows a
plaintiff to initiate a lawsuit in order to compel two or more other parties to
litigate a dispute. An interpleader action originates when the plaintiff holds
property on behalf of another, but doesn’t know to whom the property should be
transferred. The proceeding is initiated by a plaintiff or third person to have
a court decide the ownership rights of rival claimants to the same money or
property that is held by such plaintiff or third person. The plaintiff or third
person may deposit the funds with the court, asks the court to dismiss him/her
from the lawsuit, and to allow the claimants to settle their dispute in court[19].
Where a person is faced
with adverse claims to property or money wherein he claims no interest but of
which he is in possession or for which he is liable, he is entitled to invoke the
authority of a Court in order to compel the claimant to litigate their
differences at their own expense in place of subjecting him to the uncertainty
and expense of separate proceedings, in such circumstances he is said to apply
to the Court for relief by way of interpleader[20]
To justify a suit of
interpleader, there should be either some specific chattel, or some sum of
money, to which different parties make claims. Further, the person bringing the
action should be a mere stakeholder, having no interest in the matter, so that
when the court decrees an interpleader, the plaintiff can step out of the case.
If the plaintiff in the interpleader suit is found to have any interest in the
subject matter of the suit or that if he is found to have colluded with one of
the claimants, then the right to fi le an interpleader suit cannot be availed
of by him. In order to enable a party to fi le an interpleader suit the party should
be in a position to walk out of the suit with a mere claim for costs and shall
not be entitled to have any other matter of contest between himself and the
claimants[21]
An application for
relief under Interpleader proceedings shall be made by originating summons
unless made in a pending suit in which case it shall be made by summons in the
suit[22].
In every suit of or
application by way of interpleader the applicant shall satisfy the court by way
of affidavit or otherwise:
(a) That the applicant
claims no interest in the subject matter in dispute other than for charges or
costs
(b) That there is no
collusion between the applicant and any of the claimants;
(c) That the applicant
is willing to pay or transfer the subject-matter into court or to dispose of it
as the court may direct[23].
If the claimants appear
in pursuance of the summons, the court may order either that any claimant be made
a defendant in any suit already commenced in respect of the subject-matter in
dispute in lieu of or in addition to the applicant, or that an issue between
the claimants be stated and tried, and in the latter case may direct which of
the claimants is to be plaintiff and which defendant[24].
The
court may, with the consent of both claimants, or on the request of any
claimant, if, having regard to the value of the subject-matter in dispute, it
seems desirable to do so, dispose of the merits of their claims, and decide the
same in a summary manner and on such terms as may be just[25].
The
court may make all such orders as are just and reasonable as to costs and all
other matters including, where appropriate, orders for the sale or disposal of-
the subject- matter of the dispute, and where an order for costs is in favour
of the applicant the court may give him a charge over the subject-matter[26].
If a claimant, having
been duly served with a summons calling him to appear and maintain or relinquish
his claim, does not appear in pursuance of the summons, or having appeared
neglects or refuses to comply with any order made after his appearance, the court
may make an Order declaring him and all persons claiming under him forever
barred against the applicant, and persons claiming under him, but the Order
shall not affect the rights of the claimants as between themselves[27].
Where the question in
issue is a question of law and no facts are disputed the court may decide the question
without the trial of an issue[28]. The
applicant may be granted relief notwithstanding the fact that the titles of the
claimants have not a common origin but are adverse to and independent of one
another[29].
Pleadings
A pleading is one of
the papers filed with a court in a civil action, such as a complaint, a defense,
or a counterclaim or reply to defense. Under section 2 a pleading is to be
interpreted to include ‘a petition or summons, and the statements in writing of
the claim or demand of any plaintiff, and of the defense of any defendant thereto,
and of the reply of the plaintiff to any defense or counterclaim of a
defendant’. A pleading must contain only a statement in summary form of the
material facts on which the party pleading relies for his claim or defense, but
not the evidence by which those facts are to be proved[30].
A plaint is the first
pleading filed by a plaintiff which initiates a lawsuit. A plaint sets forth
the relevant allegations of fact that give rise to one or more legal causes of
action along with a prayer for relief whereas a defence is a pleading filed by
a defendant which challenges the legal sufficiency of a plaint while admitting
or denying the specific allegations set forth in a plaint and constitutes a
general appearance by a defendant. A defendant may also file a counter-claim as
well as bringing other parties into a case by taking out of third party
proceedings
The purpose of
pleadings is to narrow the parties to definite issues and to accordingly
diminish expense and delay, especially as regards the amount of testimony required
on either side. it is expected that the plaintiff should state in the plaint
all the facts which constitute his cause of action, and not merely what may be
a ground of action if something else be added which is not stated in the plaint.
It is a principle of pleading that the subject matter of any suit must be
clearly and correctly described so as to avoid any execution on a wrong party. The
defendant should, similarly, state in his defence the material facts on which he
relies for his defence[31].
When a material fact is
affirmed by one party and denied by another, the question that arises between
the parties is referred to as an issue of fact. When, however, one party
answers his opponents’ pleading by stating an objection in point of law, the
legal question arising between the parties is called an issue of law. There are
two objectives that attach to rules of procedure; one, to translate into practice
the rules of natural justice so that there are fair trials and two procedural arrangements
whereby the steps of a trial are carried out in good order and within reasonable
time[32]
Pleadings do not only
define the issues between the parties for the final decision of the court at
the trial, they manifest and exert their importance throughout the whole process
of the litigation. ...They show on their face whether a reasonable cause of
action or defence is disclosed. They provide a guide for the proper mode of
trial and particularly for the trial of preliminary issues of law or fact. They
demonstrate upon which party the burden of proof lies, and who has the right to
open the case. They act as a measure for comparing the evidence of a party with
the case which he has pleaded. They determine the range of the admissible
evidence which the parties should be prepared to adduce at the trial. They delimit
the relief which the court can award[33].
In all pleadings,
allegations contained therein must be divided into paragraphs. The paragraphs
must be numbered consequently with each numbered paragraph in so far as is
possible and appropriate, containing a separate allegation. Where it becomes
necessary to use numbers as in the case of dates, sums etc. such must not be
expressed in words but in figures[34]
In drafting a pleading
one must consider the following;
a) state your whole
case in your pleading, in other words, set forth in your pleading all material
facts on which you rely for your claim or defence.
b) state facts and not
law. If any matter of law is set out in your opponent’s pleading, do not plead
to it
c) state the material
facts on which you rely, and not the evidence by which they are to be proved.
d) state material facts
only; omit immaterial and unnecessary facts. Do not anticipate your opponents’
pleading and plead to any matter which is not alleged against you.
e) state the facts of
your case concisely, but with precision.
f) it is not necessary
to allege the performance of any condition precedent; an averment of
performance is implied in every pleading.
g) it is not necessary
to set out the whole or any part of a document, unless the precise words thereof
are necessary, it is sufficient to state the effect of the document as briefl y
as possible.
h) it is not necessary
to allege any matter of fact which the law presumes to be in your favour and
which the burden of proof lies upon your opponent[35].
Matters
Which Must be Specifically/Particularly Pleaded
The function of
particulars is to carry into operation the overriding principle that the litigation
between the parties, and particularly the trial, should be conducted fairly,
openly and without surprises, and incidentally to reduce costs. This function
has been variously stated, namely either to limit the generality of the
allegations in the pleadings, or to define the issues which have to be tried
and for which discovery is required[36].
The distinction between
“material facts” and “full particulars” is one of degree. In Bruce
v Odhams Press Ltd., Scott L.J. said: “The word ‘material’ means necessary for
the purpose of formulating a complete cause of action; and if any one
‘material’ statement is omitted, the statement of claim is bad.” The purpose of
“material particulars” is in the context of the need to give the opponent
sufficient details of the charge set up against him and to give him a
reasonable opportunity.
The object of
particulars is to ‘open up’ the case of the opposite party and to compel him to
reveal as much as possible what is going to be proved at the trial, whereas, as
Cotton L.J. has said, ‘the old system of pleading at common law was to conceal
as much as possible what was going to be proved at the trial[37]’
A party shall in any
pleading subsequent to a plaint plead specifi cally any matter, for example
performance, release, payment, fraud, inevitable accident, act of God, any
relevant statute of limitation or any fact showing illegality:
(a) which he alleges,
makes any claim or defence of the opposite party not maintainable; or
(b) which, if not
specifically pleaded, might take the opposite party by surprise; or
(c) which raises issues
of fact not arising out of the preceding pleading.
The provisions of this
section require a party to specifically plead (particularize) the statute on
whose provisions one relies in seeking to defeat an opponent’s claim. For example,
a party is obliged to specifically plead limitation based on statute before being
allowed to use it as the basis of a preliminary objection and where the party
fails.
Order
2 Rule 4 provides for the matters that Must Be Specifically Pleaded.
4. (1) A party shall in
any pleading subsequent to a plaint plead specifically any matter, for example
performance, release, payment, fraud, inevitable accident, act of God, any relevant
Statute of limitation or any fact showing illegality;
(a) Which he alleges
makes any claim or defense of the opposite party not maintainable;
(b) Which, if not
specifically pleaded, might take the opposite party by surprise; or
(c) Which raises issues
of fact not arising out of the preceding pleading.
(2) Without prejudice
to subrule (1), a defendant to an action for the recovery of land shall plead
specifically every ground of defence on which he relies, and a plea that he is in
possession of the land by himself or his tenant shall not be sufficient. (3) In
this rule “land” includes land covered with water, all things growing on land,
and buildings and other things permanently affixed to land.
Courts must, however,
not lose sight of the distinction between particulars and evidence. They should
prevent the parties from prying into the briefs of opponents just so as to find
out the evidence intended to be produced at the trial. This is to be balanced
with the fact that litigants are entitled to be told any and every particular which
will enable him to properly prepare his case for trial, so that he is not taken
by surprise[38].
for example, where pleadings
allege fraud against a defendant, the plaintiff must set forth the particulars
of fraud. Where the plaintiff has not done so, the court may grant leave to
amend the plaint to plead fraud or reject it altogether. A litigant should,
therefore, (Order 2, rule 6(2) not be allowed to proceed with his case unless
he particularizes his charges of fraud even if no objection is taken on behalf
of the litigants who are interested in disproving the allegation of fraud. It
has been held that a court cannot make a finding that there was a fraudulent
transaction, when particulars of fraud were not set out in the pleadings.
Furthermore, it is improper for the court to make a finding of fraud against a
person not a party to a suit[39].
Under Order 2 Rule 5,
the contents of any pleadings after the plaint has been fi led are not tied to
the contents of the plaint so that a party may, if need be, in subsequent
pleadings raise a matter that arose before or after the fi ling of plaint. The
only caveat to this provision is that such matter raised must be material to
the claim, must not comprise evidence by which such material facts are to be
proved and must not be inconsistent with that party’s previous pleading in the
same suit[40].
Order 2 Rule 6 states
that no party may in any pleading make an allegation of fact, or raise any new
ground of claim, inconsistent with a previous pleading of his in the same suit.
(2) Sub-rule (1) shall not prejudice the right of a party to amend, or apply
for leave to amend, his previous pleading so as to plead the allegations or
claims in the alternative.
A party may by his
pleading raise any point of law[41]. Even
if a litigant may have launched a successful case against an opponent, a
successful objection on point of law disables him from doing so. An objection
as point of law is not concerned with merits. It is a tyrant’s axe. Once it falls
and a person on whose side it falls is entitled to insist on his strict legal
rights[42]. A
preliminary objection consists of a pure point of law which has been pleaded, or
which arises by clear implication out of the pleadings and which if argued as a
preliminary point may dispose of the suit[43]. In
the case of Mukhisa Biscuit Manufacturers
Ltd. vs. West End Distributors Ltd. [1969] E.A. 696 – the Court of Appeal
said “A Preliminary Objection is in the nature of what used to be a
demurrer. It raises a pure point of law
which is argued on the assumption that all the facts pleaded by the other side
are correct. It cannot be raised if any
fact has to be ascertained or if what is sought is the exercise of judicial
discretion. The improper raising of points by way of Preliminary Objection does
nothing but unnecessarily the costs and on occasion, confirm the issues. This improper practice must stop,” as per Sir
Charles New Bold[44].
Such objection should
be founded on pure points of law and should be truly prefactory and preparatory
to the issues of substance in the claim in question. Such an objection may also
touch an uncontested fact, on the basis of which a decision by the court would
dispose of the matter coming before it in
limine[45].
Order
2 Rule 10- Particulars of a Pleading
Every pleading must
contain necessary particulars of any claim, defence, or other matter including
inter alia particulars of:
a) Misrepresentation
b) Fraud
c) Breach of trust
d) Wilful default
e) Undue influence
And where a party
alleges a condition of the mind of any person except knowledge, he must particularize
particulars of the facts on which he relies. The court is empowered to order a
party to serve on another – particulars of any claim or defence in his pleading
or a statement of the nature of the case on which he relies.
As a general rule, an order
under this rule shall not be made before the fi ling of the defence to enable
the court to know what the points raised by the defence are save where such
order is necessary or desirable to enable the defendant to plead or for some
other special reason. Courts will also not make an order for particulars under
this rule where it is shown that it would be unreasonable or oppressive for a party
to supply the particulars requested or where the party so ordered would incur
great expenses and face great difficulties or where the applicant seeks for
particulars at the last minute when hearing is approaching[46].
Order 2, rule 11, Admissions
and Denials
An allegation of fact
made in pleadings by a party is, unless specifically traversed by the opponent,
in his pleadings or a joinder of issue operates as a denial of it, deemed to be
admitted by him. Where a joinder of issue operates as a denial of the fact it
is open to adjudication on the basis of evidence and is not concluded by the
pleadings. A traverse may take the form of an express or implicit denial or
statement of non-admission and must be specific and not general[47]. In
claims for damage suffered, where liability or quantum is in issue, such shall
be deemed to have been traversed unless specifically admitted[48].
Order 2, rule 13 Close
of Pleadings
The pleadings in a suit
shall be closed fourteen days after service of the reply or defence to
counterclaim, or, if neither is served, fourteen days after service of the
defence, notwithstanding that any order or request for particulars has been
made but not complied with.
The pleadings in a suit
shall be closed fourteen days:
a) In the case where
there was a reply to defence after service of such reply to defense upon the
defendant
b) In the case where a
counterclaim was made after service of defence to such counterclaim upon the
plaintiff
c) In the case where
only defence was served, after service of such defence upon the plaintiff.
Order 2, rule 14 Technical
Objection
No technical objection
may be raised to any pleading on the ground of any want of form
Order 2, rule 15 Striking
Out Pleadings
1) At any stage of the
proceedings the court may order to be struck out or amended any pleading on the
ground that:
(a) it discloses no
reasonable cause of action or defence in law; or
(b) it is scandalous,
frivolous or vexatious; or
(c) it may prejudice,
embarrass or delay the fair trial of the action; or
(d) it is otherwise an
abuse of the process of the court, and may order the suit to be stayed or dismissed
or judgment to be entered accordingly, as the case may be.
2) No evidence shall be
admissible on an application under sub-rule (1)(a) but the application shall
state concisely the grounds on which it is made.
3) So far as applicable
this rule shall apply to an originating summons and a petition
Order 2 rule 16 Signing
of Pleadings
Every pleading shall be
signed by an advocate, or recognized agent, or by the party if he sues or
defends in person. An unsigned pleading cannot be valid in law. It is the
signature of an appropriate person which authenticates a pleading and an unauthenticated
document is not a pleading of anybody. It is a nullity.
COMMENCEMENT OF A SUIT
THROUGH THE THIRD PARTY PROCEEDINGS/ PROCESS
(Seek
Clarification! Is the 3rd party process similar to 3rd
party proceedings? Meanings are similar but is there something in civil law
that distinguishes the two?)
Third party proceedings
is a procedural device used in a civil action whereby a defendant brings into
the lawsuit a third party who is not already a party to the action but may
ultimately be liable for the plaintiff ’s claim against the defendant[49]. This rule is conceived for the benefi t of a
defendant who, if defeated in respect of a claim against him, is entitled to
reimbursement by way of indemnity. In such a case the policy of the rule is
that the defendant need not be driven to a fresh suit to put indemnity into operation.
Conceived, as it is, for the benefit of the defendant, all that is necessary for
the application of third party procedure is whether if the plaint claim is
allowed the defendant has a claim, in that event, for indemnity by reason of
such claim being allowed, from a third party. If that requisite is satisfied,
the Court will not be justified, on any extraneous ground, from refusing third
party procedure[50].
Order 1, rule 15 Notice
to Third and Subsequent Parties
(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 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 14 days after close of
pleadings 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 copy of such notice shall be fi led and shall be
served on the third party according to the rules relating to the service of a
summons.
Only matters from the
same cause of action or which can be tried together can be joined in the same
suit. In third party proceedings therefore two things are clear; in order that
a third party may be legally joined, the subject matter of the suit must be the
same and, the original cause of action must be the same[51].
On the matter of
‘indemnity’, whether or not the word is restricted to indemnity arising from
the same cause of action or includes those from other independent causes of
action it has been held that as a rule, only matters from the same cause of
action or which can be conveniently tried together should be joined in the same
cause of action. It would therefore appear that actions not based on the same
cause of action should not ordinarily be tried together and a third party
notice cannot be issued unless the issuer seeks contribution and indemnity
based on facts arising from the same cause of action[52].
[1] [1989]
KLR 1
[2]
Article 159 (2) Constitution of Kenya
[3]
Article 159 (2)(c) Ibid
[4]
Article 159 (3)
[5] S.
Ouma, A Commentary on the Civil Procedure Act,
37
[6]
Ibid
[7]
Section 7, Civil Procedure Act
[8]
Ibid 5
[9]
Ibid
[10]
Section 11 Civil Procedure Act
[11]
Section 12 Ibid
[12]
Section 13 Ibid
[13]
Section 14 Civil Procedure Act
[14]
Section 16 Civil Procedure Act
[15]
Section 19 Ibid
[16]
S. Ouma, A Commentary on The Civil Procedure Act, 2nd edn, Law
Africa Publishers, 19
[17]
Section 58
[18] S.
Ouma, A Commentary on The Civil Procedure Act, 2nd edn, Law Africa Publishers,
72
[19] S.
Ouma, A Commentary on The Civil Procedure Act, 2nd edn, Law Africa Publishers,
407
[20]
Halsbury’s Laws of England, Third Edition, Volume 22, 456
[21] National
Insurance Co. Ltd. v Dhirendra Nath, AIR (25) 1938 Cal 287
[22]
Ord 34 Rule 1
[23]
Ibid Rule 2
[24]
Ord 34 Rule 4
[25]
Ibid Rule 5
[26]
Ibid Rule 6
[27]
Ibid Rule 7
[28]
Ibid Rule 8
[29]
Ibid Rule 9
[30] S.
Ouma, A Commentary on The Civil Procedure Act, 2nd edn, Law Africa Publishers,
24
[31] S.
Ouma, A Commentary on The Civil Procedure Act, 2nd edn, Law Africa Publishers,
115
[32]
Ibid
[33]
Jacob, The Present Importance of Pleadings (1960) Current Legal Problems, at
pp. 175
[34]
Order 2 Rule 2, Civil Procedure Rules
[35] S.
Ouma, A Commentary on The Civil Procedure Act, 2nd edn, Law Africa Publishers,
117
[36]
Ibid 120
[37] Bullen
and Leake and Jacob’s “Precedents of Pleadings” 1975 Edn, 112
[38] S.
Ouma, A Commentary on The Civil Procedure Act, 2nd edn, Law Africa Publishers,
121
[39] Wamukota
v Donati [1987] KLR 280.
[40] S.
Ouma, A Commentary on The Civil Procedure Act, 2nd edn, Law Africa Publishers,
122
[41]
Order 2 Rule 9 Civil Procedure Rules 2010
[42]
Ibid 40, 125
[43] Willie
v Muchuki and 2 others [2004] KLR 357
[44] NZELE
DAVID NZOMO v MOSES NAMAYI ANYANGU & another [2009] eKLR; See also http://kenyalaw.org/caselaw/cases/view/57752/
[45]
Ibid n 40, 126; In a case where the issue was whether or not the suit was time
barred, the court observed that such was a matter of fact which could only be
established by evidence and could not therefore be established at the
preliminary stage.
[46] S. Ouma, A Commentary on The Civil Procedure
Act, 2nd edn, Law Africa Publishers, 127
[47] Royal
Insurance Company of East Africa and another v Super-freighters Ltd and 4
others [2003] KLR 724
[48]
Ibid 46
[49] S.
Ouma, A Commentary on The Civil Procedure Act, 2nd edn, Law Africa Publishers,
109
[50]
Ibid
[51]
Ibid 110
[52]
Ibid
