the civil procedure act - Kenya Law Reports

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66[Subsidiary]Practice.[Order 1, rule 15.]Notice to third andsubsequent parties.CAP. 21 Civil Procedure [Rev. 2010defendant may be made to the court at any time before trial by chamber summonsor at the trial of the suit in a summary manner.15. (1) Where a defendant claims as against any other person not alreadya 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 connectedwith the original subject-matter of the suit and substantially thesame as some relief or remedy claimed by the plaintiff; or(c) that any question or issue relating to or connected with the saidsubject-matter is substantially the same question or issue arisingbetween the plaintiff and the defendant and should properly bedetermined not only as between the plaintiff and the defendantbut as between the plaintiff and defendant and the third party orbetween any or either of them,he shall apply to the Court within fourteen days after the close of pleadingsfor leave of the Court to issue a notice (hereinafter called a third party notice)to that effect, and such leave shall be applied for by summons in chambers exparteparty according to the rules relating to the service of a summons.(3) The notice shall state the nature and grounds of the claim, and shall,and shall be in or to the effect of Form No. 1 of Appendix A with such variationsas circumstances require and a copy of the plaint shall be served therewith.(4) Where a third party makes as against any person not already a partyto the action such a claim as is mentioned in subrule (1), the provisions of thisOrder regulating the rights and procedure as between the defendant and thethird party shall apply mutatis mutandis as between the third party and suchperson, and the court may give leave to such third party to issue a third partynotice, and the preceding rules of this Order shall apply mutatis mutandis, andto and include every notice so issued and every person served with such notice.(5) Where a person served with a notice by a third party under subrule(4) makes such a claim as is mentioned in subrule (1) against another personnot already a party to the action, such other person and any subsequent personmade a party to the action shall comply mutatis mutandis with the provisionsof this rule.[Order 1, rule 16.]Notice toGovernment as thirdparty.16. Notwithstanding anything in rule 15, leave to issue a third partynotice for service on the Government shall not be granted unless the Courtit reasonably requires as to the circumstances in which it is alleged that the
Rev. 2010] Civil Procedure CAP. 21 67of the Government concerned.17. If a person not a party to the suit who is served as mentioned in rulein the suit as against the defendant on whose behalf the notice has been given,or his own liability to the defendant, the third party must enter an appearancedoing he shall be deemed to admit the validity of the decree obtained againstsuch defendant, whether obtained by consent or otherwise, and his own liabilityto contribute or indemnify, as the case may be, to the extent claimed in thethird-party notice:Provided that a person so served and failing to enter an appearancean appearance, and for good cause such leave may be given upon such terms,18. In the case of third-party proceedings against the Government, rule17 shall not apply unless the court so orders; and any application for such anorder shall be made by chamber summons served not less than seven daysbefore the return day.[Subsidiary][Order 1, rule 17.]Default ofappearance by thirdparty.[Order 1, rule 18.]Default ofappearance byGovernment as thirdparty.19. Where a third party makes default in entering an appearance inthe suit, or in delivering any pleading, and the defendant giving the noticesuffers judgment by default, such defendant shall be entitled, after causingthe satisfaction of the decree against himself to be entered upon the record, tojudgment against the third party to the extent claimed in the third-party notice;the court may upon the application of the defendant pass such judgment againstProvided that it shall be lawful for the court to set aside or vary anyjudgment passed under this rule upon such terms as may seem just.20. (1) A defendant shall not in any event be entitled to enter judgmentagainst the Government under rule 19 without the leave of the court.(2) Any application for leave to enter judgment against the Governmentunder this rule shall be made by chamber summons served not less than sevendays before the return day.21. (1) Where a third party makes default in entering an appearance inthe suit, and the suit is tried and results in favour of the plaintiff, the court mayeither at or after the trial enter such judgment as the nature of the suit mayrequire for the defendant giving notice against the third party:[Order 1, rule 19.]Judgment againstthird party in default.[Order 1, rule 20.]No judgment againstGovernment withoutleave of the Court.[Order 1, rule 21]Judgment after trialagainst third party indefault.Provided that execution thereof shall not be issued without leave ofthe court, until after satisfaction by such defendant of the decree against him.
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