Crest Foam Uganda Ltd v Jiwani Impex Limited [2016] KEHC 6835 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL & ADMIRALTY DIVISION

CIVIL CASE NO. 13 OF 2014

CREST FOAM UGANDA LTD :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF

VERSUS

JIWANI IMPEX LIMITED  :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT

R U L I N G

The application before the court is an Ex-parte chamber summons dated and filed herein on 13th November 2015.  The application seeks the following orders;-

1. That this Honourable Court be pleased to grant the applicant leave to file this application out of time and to issue and serve a Third Party Notice upon APA INSURANCE LIMITED as per the annexed draft Third Party Notice marked as “A”

2. That costs of this application be provided for.

The application is premised on the grounds set out therein and in the affidavit of MOHAMED YUSUF JIWANI sworn on 13th November 2015.

In brief, the Applicant case is that this action has been brought against the defendant by the plaintiff to recover a sum of Kshs.5,637,477 resulting from loss of plaintiff’s goods while in transit.  The plaintiff broadly alleges in the plaint that the loss of the goods was in breach of contract and the same was occasioned by the defendant’s negligence and/or that of its employees, servant or agents.  The defendant, however, denies breach of contract or that the said loss was caused by negligence on its part or of its employees, servant or agents but in the event of the defendant being held liable to the plaintiff, the defendant shall claim indemnity and/or contribution from APA INSURANCE LIMITED on the basis of Insurance Policies No. P/20/2008/0521/9 (Carrier Legal Liability Cover) and No. P/20/2011/1011/123 (Fidelity Guarantee).  Under the aforesaid policies, the defendant was insured by APA INSURANCE LIMITED against loss or damage of cargo while in transit and loss arising out of theft or dishonesty of its employees in the course of the employment.

I have considered the application.  The law demands that this land of application be filed simultaneously with the filing of defence.  This was not the case in this application and is the reason why leave is being sought for late filing of the application.  Apart from this I have no issue with the merits of the application.  I have considered the application, and on its merit the same is allowed with costs in the cause.  The third party shall be served with the Third party Notice within 7 days of this order.

Orders accordingly.

READ, DELIVERED AND DATED, AT NAIROBI THIS 8TH DAY OF FEBRUARY 2016.

E. K. O. OGOLA

JUDGE

Ruling Read in open court in the presence of:

No Appearance for Plaintiff

No Appearance for Defendant

Teresia Court Clerk