County Government of Nyeri v Nyaga & 2 others (Civil Case E242 of 2021) [2026] KEMC 184 (KLR)

2. The defendant/ applicant, in her afidavit sworn in support of the application on even date, she claimed that her vehicle was involved in an accident with the plaintifi’s vehicle. The matter was duly reported to her insurer through her insurance agent one Mr. Mbuthia. She paid the required excess fee and furnished the insurer with the documents relating to the suit. According to the applicant, the insurer and the agent were duty bound to take up the matter. The applicant therefore urged the court to allow the application for joinder to ensure all issues in controversy were brought before the court for adjudication. 3. Although the plaintifi did not object to the application, this court will nevertheless determine the application on merit. Issues, Analysis And Determination 4. The application before this court is premised on Order 1 Rule 15 of the Civil Procedure Rules which provides 15. Notice to third and subsequent parties [Order 1, rule 15.] (1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party)— (a) that he is entitled to contribution or indemnity; or (b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintifi; or (c) that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintifi and the defendant and should properly be determined not only as between the plaintifi and the defendant but as between the plaintifi and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that efiect, and such leave shall be applied for by summons in chambers ex parte supported by afidavit. 5. There are several options available in determining an application to join a third party. The court may strike out the third party notice, it may direct allow joinder of the third party and direct that the issue of liability be tried at the trial or it could direct that the issue of liability be tried after the trial of the suit. (See Josphat Njuguna Kariuki vs Simon Karichu Irungu [2004] KEHC 2063 (KLR) 6. In this case, the applicant has urged this court to grant leave for the joinder of the proposed 3rd parties to the suit. She does not specify her nexus to the intended 1st or 2nd third party. This court cannot establish with certainty that the 1st intended 3rd party is the applicant’s insurer in the absence of an insurance policy document or other evidence. 7. The issues herein fall on all fours with the issues raised in APA Insurance Limited v Genesis Highway Junior School & 3 others (Civil Appeal E058 of 2023) [2024] KEHC 12357 (KLR) (14 October 2024) (Judgment) where the court, on appeal, allowed a preliminary objection raised by APA Insurance Limited opposing the issuance of Third-Party Notice against it. 8. Guided by the foregoing authority, this court finds that even assuming that the applicant had proved that the 1st intended 3rd party was her insurer, the application for leave to issue a third-party notice https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/184/eng@2026-06-24 2

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against it would not succeed. The courts have held that an insurer cannot be joined in a claim for tort as a cause of action as that would convolute the determination of the suit between the plaintifi and the defendant. Further, a claim against an insurance company arises after liability and quantum has been determined by the court. To do otherwise would be to act in violation of Section 10 (1) of the Insurance (Motor Vehicles Third Party Risks) Act which provides; 10. Duty of insurer to satisfy judgments against persons insured (1) If, after a policy of insurance has been efiected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. 9. Regarding the 2nd proposed 3rd party, the applicant has similarly not indicated how he is connected to the present suit. Going by the averments made in the afidavit sworn in support of the application it is presumed that the 2nd proposed 3rd party is the insurer’s agent. The applicant has not demonstrated how the 2nd proposed third party is obliged to contribute or indemnify her against the claim by the plaintifi. 10. In the end, this court finds no merit in the application dated 1st September 2025. The same is struck out. 11. Costs shall be in the cause. DATED, SIGNED AND DELIVERED AT MURANG’A THIS 24TH DAY OF JUNE 2026. HON. GRACE WAITHĨRA SENIOR RESIDENT MAGISTRATE Ruling Read On The Virtual Platform In The Presence Of; C/a Jeremiah No Appearance For The Plaintifi Mr. Kivuti For The Defendant/applicant https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/184/eng@2026-06-24 3

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