Njeru v China Road & Bridge Corporation & 3 others (Environment and Land Case Civil Suit 766 of 2016)  KEELC 15470 (KLR) (19 December 2022) (Ruling)
Neutral citation:  KEELC 15470 (KLR)
Republic of Kenya
Environment and Land Case Civil Suit 766 of 2016
SO Okong'o, J
December 19, 2022
Francis Nyaga Njeru
China Road & Bridge Corporation
Siesta Investment Limited
Taj Mall Limited
1.What is before the court is the 1st defendant’s notice of motion application dated July 29, 2019 seeking the following orders;1.Abandoned.2.That the 1st defendant be granted leave to issue a 3rd party notice against ARJ Capital Limited.3.The costs of the application.
2.The application has been brought on the grounds set out on the face thereof and on the supporting affidavit of Wang Baogang sworn on July 31, 2019. The 1st defendant has contended that it is entitled to indemnity from ARJ Capital Limited (hereinafter referred to only as “ARJ”) for any adverse judgment or decree as well as costs that may be made against it in this suit. The 1st defendant has averred that it was in occupation of the property known as LR No 20273(hereinafter referred to only as “the suit property”) as a tenant of ARJ. The 1st defendant has averred that ARJ leased the suit property to it on representation by ARJ that ARJ was the registered owner of the property. The 1st defendant has averred that as a tenant of ARJ, it is estopped from denying the title of ARJ. The 1st defendant has averred that the plaintiff would suffer no prejudice if the application is allowed.
3.Neither the plaintiff nor any of the other defendants have responded to the application. When the application came up for hearing on July 25, 2022, the 1st defendant’s advocate told the court that the 1st defendant was only seeking leave to take out third-party proceedings against ARJ and that the 1st defendant had abandoned the limb of the application that had sought consolidation of this suit with other two suits. The advocate for the 2nd defendant told the court that the 2nd defendant had no objection to the application but urged the court to peruse a ruling that had been made earlier in the matter by Eboso J. that touched on ARJ. The 2nd defendant contended that in the said ruling, Eboso, J. had declined to join ARJ in the suit. The 4th defendant’s and the plaintiff’s advocates also urged the court to peruse the said ruling by Eboso, J. The 3rd defendant’s advocate told the court that the application was not served upon the 3rd defendant. In a rejoinder, the 1st defendant’s advocate argued that the ruling referred to by the plaintiff’s, the 2nd defendant’s and the 4th defendant’s advocates was not relevant to the application before the court.
4.I have considered the 1st defendant’s application together with the affidavit filed in support thereof. The application was brought under order 1 rule 15 of the Civil Procedure Rules which provides as follows:
5.Order 1 rule 15(1) of the Civil Procedure Rules reproduced above gives the court discretion to grant leave to a defendant in a suit to issue a third-party notice against a person not already a party to the suit. The grounds upon which such application is to be made are set out in the rule. I am satisfied that once an applicant satisfies the court that any of the grounds set out in the rule on the basis of which such a notice can be taken out exists then he is entitled to leave. I am satisfied that the 1st defendant has made out a case for the leave sought. It is not disputed that the 1st defendant was at all material times in occupation of the suit property. It is not disputed that the 1st defendant’s entry and occupation of the suit property was on the basis of a lease agreement between it and ARJ which claimed to be the registered owner of the suit property. The 1st defendant was sued by the plaintiff in this suit on the basis that it is a trespasser on the suit property. I am satisfied that if it turns out at the trial that ARJ is indeed not the owner of the suit property and as such the 1st defendant is a trespasser on the property, the 1st defendant would be entitled to an indemnity from ARJ which leased the premises to it for any judgment that may be made against it in this suit. It would therefore serve the interest of justice and prevent multiplicity of suits if the 1st defendant is allowed to take out third-party notice against ARJ.
6.On June 26, 2018, ARJ applied to be joined in this suit as an interested party. ARJ claimed that it was the registered owner of the suit property. ARJ contended that it had sufficient interest in the suit and that its joinder to the suit would enable the court to fairly and justly determine the dispute between the parties. ARJ’s application for joinder was dismissed by Eboso, J. on February 6, 2019. In his ruling, Eboso, J stated as follows in part:
7.The court found that the documents relied on by ARJ in support of its claim over the suit property were fraudulent. I am of the view that contrary to the contention by the respondents herein, the ruling by Eboso, J. supports the 1st defendant’s application. The finding by the court that ARJ held fraudulent documents of title in respect of the suit property means that it had no lawful interest in the suit property that it could convey to the 1st defendant by way of a lease and as such the 1st defendant’s occupation of the property was unlawful. In the circumstances, in the event that this finding by the court on an interlocutory application is confirmed at the trial, the 1st defendant would be entitled to be indemnified by ARJ for any judgment that may be entered in favour of the plaintiff against the 1st defendant. This is because ARJ would be taken to have caused the 1st defendant to enter the suit property on the fraudulent representation that it was the owner of the property which was not the case.
8.The upshot of the foregoing is that the 1st defendant’s application dated July 29, 2019 has merit. The 1st defendant is granted leave to issue a third-party notice against ARJ Capital Limited. The third-party notice shall be filed within 30 days from the date hereof. The costs of the application shall be in the cause.
DELIVERED AND DATED AT KISUMU ON THIS 19TH DAY OF DECEMBER, 2022.S OKONG’OJUDGERuling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:N/A for the plaintiff.N/A for the 1st, 2nd and 4th defendants.Mr Koyyoko for the 3rd defendant.Ms J Omondi-Court Assistant.