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: -
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 ?led 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.
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: -
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.