Automated Summary
Key Facts
The case involves John Ndung'u Gikonyo suing Complete Video Limited and others over payment disputes related to a 2005 Safaricom TV commercial. The 2nd Defendant (Redsky Limited) claimed payments were made to the Plaintiff via the Proposed Third Party (Dale Carnegie Liselo Trading as Kabeiza) for local and Pan African airtime. The Plaintiff alleged the 2nd Defendant delayed proceedings by seeking to add the third party as a party to the suit, while the third party confirmed payments but disputed the need for indemnity. The court allowed the 2nd Defendant to issue a third party notice but ordered them to pay Kshs 10,000 in costs to the Plaintiff for procedural delays.
Issues
- The court assesses whether the Plaintiff would suffer prejudice if the Proposed Third Party is made a party to the proceedings, given the late application and the potential for delaying tactics, as well as the need for a fair trial under Article 50 of the Constitution.
- The court evaluates whether the 2nd Defendant's application to enlarge time for issuing the third party notice falls within the statutory limitation period of six years for contracts, considering the suit was filed in 2007 and the application was made in 2013.
- The court must determine whether the 2nd Defendant is entitled to leave to issue a third party notice against the Proposed Third Party (Dale Carnegie Liselo Trading as Kabeiza) under the Civil Procedure Rules 2010, particularly given the application was filed three years after the suit was initiated and the new rules came into effect in 2010.
Holdings
The court allowed the 2nd Defendant's ex parte Chamber Summons application dated 23rd January 2013, granting leave to issue a Third Party Notice against Dale Carnegie Liselo (Kabeiza). It ruled that the 2nd Defendant could seek indemnity or contribution from the Proposed Third Party. The court also ordered the 2nd Defendant to compensate the Plaintiff for thrown away costs in the sum of Kshs 10,000/=, citing the inordinate delay in bringing the application.
Remedies
- The court ordered the 2nd Defendant to pay the Plaintiff Kshs 10,000 in thrown away costs for the late filing of the application. This sum was to be paid within fourteen (14) days from the date of the ruling, as compensation for the Plaintiff's inconvenience.
- The court granted the 2nd Defendant leave to issue a third party notice against Dale Carnegie Liselo Trading as Kabeiza, as per the ruling dated 24th May 2013. This was to determine the real question in controversy between the parties, and the notice was to be issued within fourteen (14) days from the date of the ruling.
Monetary Damages
10000.00
Legal Principles
- The court exercised its discretion under Order 50(6) of the Civil Procedure Rules, 2010, to enlarge the time for the 2nd Defendant to apply for leave to issue a third party notice, despite the application being filed 3 years after the rules took effect.
- The court applied the costs principle outlined in the proviso of Order 50 Rule 4 of the Civil Procedure Rules, 2010, ordering the 2nd Defendant to compensate the Plaintiff for thrown away costs (Kshs 10,000/=) due to the inordinate delay in filing the application.
Cited Statute
- Civil Procedure Act
- Civil Procedure Rules, 2010
- Constitution of Kenya, 2010
Judge Name
J. Kamau
Passage Text
- I find that the Proposed Third Party is a necessary and proper party in the proceedings herein in the event the 2nd Defendant was to succeed in its case against the Plaintiff and the said Proposed Third Party was found to be liable.
- I hereby order that the 2nd Defendant pays the Plaintiff thrown away costs in the sum of Kshs 10,000/= to be paid within fourteen (14) days from today.
- I am satisfied that this is a case which merits the exercise of my discretion in favour of the Plaintiff herein and accordingly, I hereby allow the 2nd Defendant Chamber Summons application dated 23rd January 2013.