Savji Harji Varsani v Kanjee Naranjee (Kenya) Ltd [1977] KECA 10 (KLR)
The bottom line
#Kenya's East African Court of Appeal ruled that a third party pulled into a lawsuit should seek discharge at the summons for directions stage, and refused leave to appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the proper procedure for a third party to apply to be discharged from a third-party notice is by chamber summons or by awaiting the summons for directions
- 2.The interpretation of order I, rule 14(1), of the Civil Procedure Rules and whether the third-party notice satisfied its requirements
Key legal issues
#Correct procedure for discharge of a third party
The proper course is on the summons for directions; the chamber summons route was wrong on the facts, and in any event the judge heard the application on its merits so the point became academic
Under rules 14, 15 and 18 of order I, leave is granted ex parte, the third party enters appearance if he disputes liability, and on a summons for directions the court must be satisfied there is a proper question to be tried; if not, the third party must be dismissed. Since the judge nonetheless heard and dismissed the chamber summons application with reasons, the procedural complaint was of academic interest only and could not affect the outcome.
Interpretation of order I, rule 14(1) and rule 18 - power to dismiss a third party on a summons for directions
The court has power to dismiss a third party on a summons for directions where no triable issue is shown; the closing words of rule 18 are superfluous and confusing
Rule 18 expressly requires the court to be satisfied that there is a proper question to be tried before giving directions. The contrary would produce a ridiculous position. The final words of the rule ('to be entered in favour of the defendant giving the notice against the third party') are superfluous and confusing and could well be omitted. The principle in Sango Bay Estates on contribution/indemnity applies equally to the wider provisions of rule 14(1).
Whether the third-party claim satisfied the requirements of order I, rule 14(1)
Prima facie it did: the tenant, landlord and third party were bound by the same facts, the complaint (damage by rain water), relief (damages) and causes of action (negligence and nuisance) being the same
The absence of contractual obligations as to the roof works would not automatically exonerate the contractor from liability in negligence or nuisance in the manner of executing the agreed works; that question could not be determined without evidence. The judge was satisfied the claim was connected with the original subject-matter of the suit and the point was not arguable.
Legal principles established
#- Where, on a summons for directions under order I rule 18, the court is not satisfied there is a triable issue as to the third party's liability, it may dismiss the third party from the proceedings
- The proper time for a third party to apply to be discharged is on the summons for directions, when the court decides whether the third party, having appeared, has a case to answer
- A third party may in appropriate circumstances (e.g. undue delay by the defendant in seeking directions) apply by chamber summons to be discharged
Court orders
#- 1.Application for leave to appeal refused with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- Application for leave to appeal to the East African Court of Appeal (statutory leave requirement; specific provision not cited in the judgment)
Relief refused
#Leave to appeal against the two High Court rulings refusing to discharge the applicant as third party
The applicant failed to establish any prima facie error of procedure or interpretation warranting an appeal
Costs
Application for leave refused with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the reasons stated in this ruling, the applicant has failed to make out a case for granting him leave to appeal to this Court. We dismiss the application with costs.
Application for leave refused with costs.
If not so satisfied it follows, in our view, that the third party must be dismissed from the proceedings.
The proper time for the third party to apply to be discharged was on a summons for directions when the Court makes up its mind whether, after the third party has appeared, he has a case to answer.
The cause for complaint is the same: damage to property by rain water. All the parties were, so to speak, at the scene. The relief sought is the same: damages. The causes of action are the same: negligence and nuisance.
The words at the end “to be entered in favour of the defendant giving the notice against the third party” are not only superfluous but are confusing, and could well be omitted.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mwaniki v Khandid (Environment & Land Case E011 of 2024) [2025] KEELC 3744 (KLR)[2025] KEELC 3744 (KLR)12 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Savji Harji Varsani v Kanjee Naranjee (Kenya) Ltd [1977] KECA 10 (KLR)", Case Analysis (1977). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1977/10/eng@1977-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.