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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the application for leave to issue a Third Party Notice should have been heard ex parte such that the responses filed were irregular
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
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.
Whether the delay in seeking leave to issue the Third Party Notice justified dismissal of the application
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
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.
Whether joinder of the proposed Third Party was necessary for effectual and complete adjudication
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
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.
Legal principles established
#- 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
#- 1.The Defendants' Chamber Summons application dated 17th December 2024 is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#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
#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
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
Deeming of the draft Third Party Notice as duly filed
Follows from dismissal of the application
Costs
Application dismissed with costs to the Plaintiff in the Counterclaim and the proposed Third Party
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.
In the circumstances, I find the Defendants’ Chamber Summons application dated the December 17, 2024 unmerited and will proceed to dismiss it with costs.
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.
the defendants seek to rely on a procedural technicality which offends the provisions of Article 159 of the Constitution.
there was an inordinate delay of over a decade in seeking to issue and serve a Third Party Notice which is not explained
the alleged claim against the proposed Third Party actually offends the provisions of section 4 of the Limitation of Actions Act.
Issues in the judgment
#Case number and neutral citation are not stated anywhere in the judgment text
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.