implied. See (a) Sango Bay Estates -vs- Dresdner Bank AG. No.[1970] EA 307;
(b) Eastern Shipping Company Limited -vs- Quah Beng Kee [1924] AC 177; (c)
Birmingham And District Land Company -vs- London And North Railway
Company Vol.34 CHD 261 and (d) Speller & Co -vs- The Bristol Steam
Navigation Company Vol. 13 QBD 96. The defendant’s right to seek indemnity
arises from the Contract dated 29th October 2004 between the Thirty Party and
the Defendant.
Counsel for the defendant then contended that: (a) The basis for
indemnification of the defendant by the third party is the contract between
the Third Party and the Defendant; (b) The circumstances under the said
contract for indemnification exist and; (c) The Defences that have been raised
by the Third party as to why he cannot indemnify the Defendant cannot be
sustained.
Counsel prayed for a finding that the Third party is liable to indemnify the
Defendant for whatever amounts this Court decrees the Defendant to pay the
plaintiff plus the costs of the suit.
For its part counsel for the Third Party Mr. Dan Wegulo agreed that the basis of
the third party proceedings commenced by the defendant against the third
party is based on the contractual obligation of the third party to indemnify the
Defendant for loss of cargo claimed in the suit.
Counsel submitted that the Third Party is not liable to indemnify the Defendant
for the loss of cargo because the loss was occasioned by a violent robbery
which does not give rise to liability and which the Third Party could not have
averted despite exercising reasonable care. Alternatively counsel submitted
that in the event that the Third Party is found to be liable, its liability should
not exceed USD 55,000. The Defendant barred by the doctrine of estoppels
from demanding from the Third Party indemnity exceeding the said amount.
The Third Party’s TPW1 Mr. Geoffrey Baitwa the Managing Director evidence is
that the Third Party in pursuance of the agreement between the parties
received from the Defendant Container No. MSKU 433207-7 whose cargo it
loaded on truck registration No KBF 384D on the 01.04.2010 for transportation
to Mombasa. TPW1 was informed that the truck was attacked by armed
people just before Nairobi, Kenya who put the driver of the truck together with
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