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ELCDismissedNot stated in judgment

Shepherd Catering Ltd v Nairobi Holdings Limited & 2 others; Steel Son Limited (Plaintiff to the Counterclaim); Shepherd Catering Limited & 2 others (Defendant to the Counterclaim); Kaplan & Stratton Advocates (Proposed Third Party) (Environment and Land Case Civil Suit 359 of 2004) [2025] KEELC 3642 (KLR)

Environment and Land Court
8 May 2025
3,167 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused a decade-late bid to join a law firm to a land dispute, confirming that delay kills third-party claims.

What this practically means

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Executive summary

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The Defendants in the Counterclaim applied by Chamber Summons dated 17th December 2024 for enlargement of time and leave to issue and serve a Third Party Notice upon Kaplan & Stratton Advocates, the firm alleged to have collected rent on behalf of the Plaintiff in the Counterclaim for premises LR No. 209/361/3 and LR No. 209/361/4. The Plaintiff in the Counterclaim seeks mesne profits of Kshs.101,161,204.3, alleging it was denied rent; the Defendants contend rent was always paid to the proposed Third Party as the Plaintiff's agent and sought indemnification or contribution. The application was opposed by the proposed Third Party through a Notice of Preliminary Objection, Grounds of Opposition and a replying affidavit by Dr. Fred Ojiambo SC, and by the Plaintiff in the Counterclaim through Grounds of Opposition and a replying affidavit. Opponents argued there was no cause of action against the firm, any claim was statute-barred under section 4 of the Limitation of Actions Act, the application was brought after inordinate and unexplained delay of over fifteen years, and joinder was unnecessary since the alleged payments are evidentiary matters provable at trial. The Defendants argued the application should have been heard ex parte under Order 1 Rule 15 and that it was filed within fourteen days of their amended defence. The court, Christine Ochieng J, held that the Defendants suffered no prejudice from the responses being considered since they themselves served the parties, and reliance on the ex parte requirement was a procedural technicality offending Article 159 of the Constitution. The court found an inordinate, unexplained delay of over a decade, noted the firm had previously acted as advocates in the proceedings, observed the firm could be summoned to produce rent accounts, and held the claim was time-barred. The application was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Defendants in the Counterclaim should be granted leave to issue and serve a Third Party Notice upon Kaplan & Stratton Advocates (Third Party)

Key legal issues

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01

Whether the application for leave to issue a Third Party Notice should have been heard ex parte such that the responses filed were irregular

Holding

No prejudice was suffered by considering the responses; the Defendants themselves served the parties, so reliance on the ex parte requirement was a procedural technicality offending Article 159 of the Constitution

Reasoning

The court noted the Defendants personally served the Plaintiff in the Counterclaim and the proposed Third Party, eliciting the responses now complained of. Adopting the Salat decisions, the court held that where a procedural infraction causes no injurious prejudice it has no invalidating effect, and that strict adherence to procedure should not sacrifice justice under Article 159 of the Constitution.

p. 6
02

Whether the delay in seeking leave to issue the Third Party Notice justified dismissal of the application

Holding

Yes; the delay of over a decade was inordinate and unexplained, and the claim against the proposed Third Party was time-barred under section 4 of the Limitation of Actions Act

Reasoning

The main suit had been dismissed on 12th October 2011, yet the Defendants only sought leave in 2024, claiming advice from newly instructed advocates. The court found the delay unexplained, noted the proposed Third Party had earlier acted as advocates in the proceedings without being joined, and held the claim was extinguished by limitation.

p. 6
03

Whether joinder of the proposed Third Party was necessary for effectual and complete adjudication

Holding

No; the proposed Third Party is an alleged disclosed agent of the Plaintiff and can be summoned to produce rent accounts, so its joinder is unnecessary

Reasoning

The Defendants' defence is that rent was paid to the proposed Third Party as agent of the Plaintiff. The court reasoned that proof of such payment is evidentiary and can be adduced at trial, with the agent summoned to produce accounts, so the criteria in Order 1 Rule 15 for third party joinder were not met.

p. 6

Legal principles established

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  • A procedural infraction causing no injurious prejudice should not invalidate proceedings; substantive justice prevails over procedural technicality
  • Failure to file a third party notice within the prescribed time renders the notice incurably defective
  • An alleged disclosed agent of a plaintiff need not be joined as a third party where the evidence of payment can be adduced by summoning the agent

Court orders

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  1. 1.The Defendants' Chamber Summons application dated 17th December 2024 is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under the Civil Procedure Act and Civil Procedure Rules (Order 1 Rule 15)

Relief refused

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Enlargement of time within which to make the application for joinder of a third party

Application brought after inordinate, unexplained delay of over a decade and the claim offends the Limitation of Actions Act

p. 6

Leave to issue and serve a Third Party Notice upon Kaplan & Stratton Advocates

Proposed Third Party does not meet the criteria for joinder; its participation is unnecessary for effectual adjudication

p. 6

Deeming of the draft Third Party Notice as duly filed

Follows from dismissal of the application

p. 6

Costs

Application dismissed with costs to the Plaintiff in the Counterclaim and the proposed Third Party

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances, I find the Defendants’ Chamber Summons application dated the December 17, 2024 unmerited and will proceed to dismiss it with costs.
p. 6Disposition - dismissal of the application
the proposed Third Party does not meet the criteria set out for a Third Party and its involvement will not be necessary to enable the court effectually and completely adjudicate upon this suit.
p. 6Necessity of third party joinder
the defendants seek to rely on a procedural technicality which offends the provisions of Article 159 of the Constitution.
p. 6Procedural technicalities and Article 159
there was an inordinate delay of over a decade in seeking to issue and serve a Third Party Notice which is not explained
p. 6Inordinate delay in seeking third party notice
the alleged claim against the proposed Third Party actually offends the provisions of section 4 of the Limitation of Actions Act.
p. 6Limitation of actions

Issues in the judgment

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minor

Case number and neutral citation are not stated anywhere in the judgment text

minor

Discrepancy in occupation dates pleaded by the Defendants - supporting affidavit refers to occupation from about November 2002 while submissions refer to 5th January 2003

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Shepherd Catering Ltd v Nairobi Holdings Limited & 2 others; Steel Son Limited (Plaintiff to the Counterclaim); Shepherd Catering Limited & 2 others (Defendant to the Counterclaim); Kaplan & Stratton Advocates (Proposed Third Party) (Environment and Land Case Civil Suit 359 of 2004) [2025] KEELC 3642 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3642/eng@2025-05-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.