APA Insurance Ltd v Rai Cement Ltd (Civil Appeal E017 of 2025) [2026] KEHC 7354 (KLR) (29 May 2026) (Judgment)

APA Insurance Ltd v Rai Cement Ltd (Civil Appeal E017 of 2025) [2026] KEHC 7354 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 7354 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E017 of 2025 DK Kemei, J May 29, 2026 Between Apa Insurance Ltd Appellant and Rai Cement Limited Respondent (Being an Appeal from the Ruling and Order of Honourable Benjamin Limo, (PM) delivered on the 4th February 2025 in Siaya CMCC No. E005 of 2021) Judgment 1.The appeal herein arises from the judgement of Hon B. LIMO (CM) in Siaya CMCC No. E005 of 2021 delivered on 4TH February,2025 wherein he dismissed the Appellant’s application dated 10/6/2024 seeking orders of review or setting aside of orders dated 16/4/2024 and for hearing of the suit on merits. 2.The Appellant, being aggrieved and dissatisfied with the entire ruling appealed against the same by filing a Memorandum of Appeal dated 28/2/2025 wherein it raised the following grounds: - The earned trial Magistrate erred in fact and in law and grossly misdirected himself in dismissing the Appellant’s suit and Application without according the Appellant a chance to be heard on merit. The learned trial Magistrate erred in law and in fact in dismissing the Appellant’s suit for non-attendance yet the Appellant has always been willing and ready to prosecute her claim to conclusion. The learned trial Magistrate erred in law and in fact when he upheld the Respondent’s Preliminary Objection on the doctrine of res judicata yet the issues raised in the Applicant’s Application were yet to be heard and determined on merit. The learned trial Magistrate further erred when he failed to hold that a suit can only be deemed to be barred by the doctrine of res judicata when it was heard and determined on the substantive merits of the case as opposed to the suit being dismissed on preliminary technical points. The learned trial Magistrate erred when he failed to hold that the doctrine of res judicata bars a future suit or Application only when the case is resolved based on the facts and evidence of the case. The learned trial Magistrate could have only further erred in fact and in law in disregarding the Appellant’s pleadings and written submissions and the Appellant has now been condemned unheard. Reasons wherefore the Appellant prays that the appeal be allowed with costs and that the ruling delivered by Honourable Benjamin Limo on 4th February, 2025 in Siaya CMCC NO. E005 of 2021 be quashed, set aside and/ or varied. 3This being the first appellate court, its duty is re-evaluating the evidence and come to its own independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account the fact that it neither saw nor heard the witness as they testified. See the case of Selle & Another Vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Peter Vs. Sunday Post Ltd. [1968] EA 424. 4.The record of the trial court indicates that the Appellant had filed a Plaint dated 8/2/2021 wherein it sought for a declaration that the Plaintiff is not bound to or liable to make payments or indemnify the Defendant under the said Insurance Policy cover in respect of any claim for death, bodily injury, damage to property or any claim by third parties arising out of the road traffic accident which occurred on 10/11/2018 at Uranga area along Siaya-Nyandorera road involving the Defendant’s motor vehicle registration number KCE 923 pulling trailer number ZF 8078. Apparently, an interlocutory judgement was entered by the trial court against the Appellant and that an application dated 23/4/2024 for setting the said interlocutory judgement was filed by the Appellant which was dismissed by the trial court and that another application dated 10/6/2024 seeking for review, setting aside or variation of orders dated 16/4/2024 wherein the Appellant’s suit was dismissed for want of prosecution. In the latest application dated 10/6/2024, the Appellant had pleaded with the trial court to reinstate the dismissed suit as the interlocutory judgement had been entered due to mistakes of the Appellant’s counsel who had misdiarized the hearing date and that the mistakes of counsel should not be visited upon the client. The Respondent thereafter filed a Notice of Preliminary Objection dated 19/7/2024 wherein it claimed that the application was res judicata on the ground that the application was similar to the application dated 23/4/2024 that was substantially dealt with and dismissed. The trial court considered all the issues and came up with the impugned ruling dated 4/2/2025. 5.The appeal was canvassed by way of written submissions. 6.The Appellant raised three issues for determination inter alia; whether undue regard to a procedural technicality barred the Appellant from accessing substantial justice; whether the Application dated 10th June 2024 was res judicata the Application dated 23rd April 2024; whether dismissing the Plaintiff’s Application amounted to condemning a man unheard in contravention of the natural law principle of audi alterem partem. 7.It was submitted that the trial magistrate erred in dismissing the Appellant’s suit and Application without according the Appellant a chance to be heard on merit and in dismissing the Appellant’s suit for non-attendance yet the Appellant has always been willing and ready to prosecute her claim to conclusion as can be garnered from the record. That the can of worms militated even further when the trial magistrate dismissed the Application for reinstatement, holding that the Plaintiff’s supporting affidavit was not properly sworn and proceeding to strike it out, thereby dismissing the entire suit. 8.That the right to fair Hearing is robustly protected by Article 50 of the Constitution, with sub-article (1) providing that every person has the right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court. This “resolution” as required by Article 50(1) is a final, complete and thorough determination of the merit issues in a given case between parties, and Article 50(1) cannot be said to have been fulfilled if the case (or issue) is thrown out in limine, in what can only be said to be throwing the baby out with the bathwater. Consequently, the very stronghold of Article 50(1) as a pillar of justice in our constitutional setup is such that non-compliance with it would render such acts or omissions helplessly invalid. It was submitted that the Ruling and Order of the Honourable Benjamin Limo, Chief Magistrate delivered on the 4th February 2025 in Siaya CMCC No. E005 of 2021 is invalid by virtue of Article 2(4) of the Constitution of Kenya which states that, “any act or omission in contravention of this Constitution is invalid”. This court was urged to so find. 9.Further, the import and purport of section 1A, 1B, 3A and 63(e) of the Civil Procedure Act are to inter alia facilitate the just determination of proceedings on their merits and not to allow procedural technicalities, innocent mistakes and/or inconveniences to bog down the process and deny justice to the parties before court. In a free and democratic society, juridical power is strengthened, not weakened when a party is allowed to canvass and agitate his/her respective position. 10.That the aforesaid mistake notwithstanding, the Appellants urged the subordinate court that in considering the merits of the said application, to be guided by the provisions of Order 51 Rule 10(2) of the Civil Procedure Rules, 2010 which stipulate that: No application shall be defeated on a technicality or for want of form that does not affect substance of the application. 11.Perhaps it is in light of this backdrop and on similar concerns of justice that the court in Makena v Nalwa [2025] a KEHC 1583 (KLR) held that to use procedural technicalities to defeat a suit is akin to denying a party justice. To this, the court fiercely came out to state as follows:‘’This is unacceptable as it goes against the very purpose of the overriding objectives of the Civil Procedure Act and Rules, as well as Article 159(2)(d) of the Constitution, which mandates that justice be administered without undue regard to procedural technicalities.In my humble view, to dismiss the respondent’s suit under the given circumstances that I have outlined would be a grave injustice in this constitutional era, effectively denying the respondent his right to access justice, as guaranteed under Article 48 of the Constitution. It would also infringe upon his right to a fair hearing which is guaranteed under Article 50(1) of the Constitution. Courts are called upon to administer justice and not to perpetuate injustice, and I am not about to do so in this case.’’ 12.It was submitted that whereas the supporting affidavit in the Plaintiff’s application dated 23rd April 2024 lacked a Commissioner’s stamp and signature, to ensure the purpose of justice was met, the subordinate court was well within its powers and authority to invoke section 63(e) of the Civil Procedure Act, and to issue an interlocutory order directing the Plaintiff to regularize its impugned supporting affidavit by correcting its form. Such would have been both just and convenient as opposed to the unrelenting, vicious and draconian position taken of striking out the said affidavit and as a consequence, dismissing the entire suit and muffling the the Plaintiff’s voice, thus obstructing his hallowed pathway to justice in the process and severely prejudicing him.In Standard Chartered Bank Ltd v Lucton (K) Ltd HCC 462 of 1997 (unreported), Ringera J had the occasion to progressively state as follows in matters of a similar nature where one party insisted that Rules were mandatory and that therefore there was no discretion as far as strict adherence thereto was concerned:‘’The Constitution of Kenya requires courts, in the exercise of judicial authority derived from the people, to administer justice impartially, without regard to status or procedural technicalities. All persons are equal before the law, and so, I must consider the potential prejudice to either party if this suit were to be dismissed on such grounds.Furthermore, prematurely terminating a suit and ousting the respondent party from the seat of justice should usually be a measure of last resort and in exceptional circumstances, not the ones described in this case. The court acknowledges the fact that removing a party from the seat of justice should....’’ 13.Even though recent jurisprudence have argued that Article 159(2)(d) should not be used as a panacea for all ills, it was submitted that the said article found its way into our Constitution by foresight of the founding fathers for such a time as this, where to insist and to be rigid on compliance with technicalities would surely wreck a party’s aspirations to justice. Article 159(2)(d) must boldly come in and cure the default in filing an affidavit that contained a slight and honest mistake. The court in Makena v Nalwa[2025] KEHC 1583 (KLR) was categorical that:“The court is of the view that Article 159(2)(d) of the Constitution of Kenya 2010 provides that justice shall be administered without undue regard to technicalities even though the default in failing to file the accompanying documents is attributed to the Defendant’s counsel’s neglect in reading and applying the rules of court applicable to the situation.Despite the noted negligence the court is under a duty to make orders that will advance the justice which is paramount in a matter like this. To do so, it is important that the court appraises the arguments advanced by the respective parties on both sides in order to weed out mischief and malice, if there so be, on either party’s part, and determine the application on merit.” 14.The purposes of justice dictate that the courts exist to serve substantive justice for all parties to a dispute before it. Both parties deserve justice and their legitimate expectation is that they will each be allowed a proper opportunity to advance their respective cases upon the merits of the matter. This is the fundamental principle of natural justice, which was articulated in the case of Wachira Karani vs. Bildad Wachira Civil Suit No. 101 of 2011[2016] eKLR). Hence, the trial magistrate must be faulted for upholding the Respondent’s Preliminary Objection on the doctrine of res judicata yet the issues raised in the Applicant’s application were yet to be heard and determined on merit. 15.The doctrine of res judicata, is found in section 7 of the Civil Procedure Act which provides that:No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue; in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title; in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. 16.Learned counsel for the Respondent, vide submissions dated 3/2/2025 submitted that the dismissal of the Appellant’s suit for non-attendance was a judgement. That the dismissal of the application over a defective affidavit constituted a final determination of the said application so that a subsequent one would be faced by the res judicata doctrine. 17.Learned counsel cited the case of Dock Workers Union Vs Kenya Ports Authority [2021] eKLR where the court upheld a preliminary objection that was grounded on res judicata. Also in Kimugul Self Help Group Vs Karia & Another [2025] eKLR the court held that a subsequent application was res judicata after an earlier one had been dismissed. 18.It was also submitted that the application of Article 159(2)(d) of the constitution on technicalities should not be used as a panacea as the same was not intended to whitewash every procedural default in the orderly administration of justice. Reliance was placed in the cases of Nicholas Kiptoo Arap Salat Vs IEBD & 7 Others [2014] eKLR, Lemanken Aramat Vs Harun Metamei Lempaka & 2 Others [2014] eKLR. 19.It was further submitted that the failure to commission the affidavit was a procedural irregularity and thus res judicata applied to the applications that were dealt with by the trial court and thus the Appellant could not go back to the court as the court had become functus officio in the matter. Counsel urged this court to dismiss the appeal with costs. 20.I have considered the record of appeal and the rival submissions. I find the issue for determination is whether the appeal has merit. 21.It is noted that the Appellant’s earlier application dated 23rd April 2024 sought to reinstate the suit for expeditious hearing and determination on its merits. The Plaintiff’s advocates rendered the excuse that they had mis-diarized the hearing date and sought the indulgence of the court. However, the said application constituted one simple mistake – it bore no signature nor stamp by a certified Commissioner for Oaths – a mistake that opposing counsel capitalized on, leading to the striking out of the affidavit in support of the application dated 23rd April 2024, and consequently dismissing the application. Hence, the first application was summarily dismissed and its merits were not delved into. That Plaintiff then, in an attempt to regularize its previous mistake, made a second application to the subordinate court dated 10th June 2024, seeking to review/vary and/or set aside its dismissal orders dated 7th June 2024 and subsequently to re-instate the suit for expeditious hearing and determination on its merits to meet the ends of justice. 22.The Supreme Court in a decision rendered on 6th August, 2021 in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others:[2021] eKLR, rendered itself on the threshold for proving the applicability of the doctrine. The Court stated as follows at paragraph 86:‘’We restate the elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. For res judicata to be invoked in a civil matter the following elements must be demonstrated:a)There is a former Judgment or order which was final;b)The Judgment or order was on merit;c)The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd)There must be between the first and the second action identical parties, subject matter and cause of action.In Standard Chartered Bank Ltd v Lucton (K) Ltd HCC 462 of 1997 (unreported), Ringera J had the occasion to progressively state as follows in matters of a similar nature where one party insisted that Rules were mandatory and that therefore there was no discretion as far as strict adherence thereto was concerned:‘’The Constitution of Kenya requires courts, in the exercise of judicial authority derived from the people, to administer justice impartially, without regard to status or procedural technicalities. All persons are equal before the law, and so, I must consider the potential prejudice to either party if this suit were to be dismissed on such grounds.Furthermore, prematurely terminating a suit and ousting the respondent party from the seat of justice should usually be a measure of last resort and in exceptional circumstances, not the ones described in this case. The court acknowledges the fact that removing a party from the seat of justice should....’’It is noted that there was an attempt by the Plaintiff to regularize the situation by coming up with another application accompanied by a proper affidavit. In the case of Ahdalla Ali Bajaber v Mangale Dzombo Ngoka & Another[2012] eKLR Murithi J stated that: “In accordance with the accepted practice of the courts, the mistake of counsel should not be visited upon the innocent parties whom they represent.” 23.The doctrine of res judicata presupposes that the issues directly and substantially in issue must have been raised, heard and finally decided/determined. It is noted that the ruling of the subordinate court dated 4th February 2025 did not delve into the substantial merits of the application or the issues it raised, but rather agreed with the Defendant’s Preliminary Objection seeking to strike out the application in limine and before the same could be heard on its merits. As such, the doctrine of res judicata clearly did not apply in the present instance and hence the trial court was in error. It is clear that the Appellant’s rights were infringed as it was condemned unheard in contravention of the natural law principle of audi alterem partem and that its right of access to justice, right to be heard without delay, and the right to fair trial guaranteed under Article 50 of the Constitution of Kenya 2010 was trampled upon. In John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others[2021] eKLR, the court categorically criticized condemning a party unheard and/or shutting out a party from proceedings. The apex court considered that there are two justiciable elements of fair hearing, (i) an opportunity of hearing must be given; and (ii) that opportunity must be reasonable. In the present instance, the Appellants were never given an opportunity to be heard on merits in the subordinate court.In FM v EKW[2019 eKLR Njuguna J relied on and cited the case of Kenya Pipeline Company Limited Vs. Mafuta Products Limited][2014][ eKLR) and that of Shah Vs Mbogo1967] E.A. 166 in finding that:“... the discretion of the court must always be exercised judiciously with the sole intention of dispensing justice to both or all the parties. Each case must therefore be evaluated on its unique fact and circumstances. Among the factors to be considered is whether the Applicant will suffer any prejudice if denied an opportunity to be heard on merit.”In the case of Moses Kamau Mbutti & another v Felista Njeri & 2 others[2021 KEELC 1111 (KLR), the court held as follows:‘’I hold the view that it would be unjust and indeed a miscarriage of justice to deny a party who has expressed the desire to be heard the opportunity of prosecuting his case. The court in the above cited case of Richard Nchapui Leiyanguys IEBC & 2 others [2014]eKLR proceeded to state as follows: –“The right to a hearing has always been a well-protected right in our constitution and is also the cornerstone of the rule of law. This is why even if the courts have inherent jurisdiction to dismiss suits, this should be done in circumstances that protect the integrity of the court process from abuse that would amount to injustice and at the end of the day there should be proportionality”The same position was also taken in CMC Holdings Ltd vs James Mumo Nzioka[ 2004] eKLR where it was held inter alia:-“The discretion that a court of law has was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. It would in our mind not be a proper use of such discretion if the court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error” 24.In Shah Vs Mbogo & Another [1967] EA 116 the court held as follows:‘’The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.’’It is clear that the Appellant all along wanted to be given an opportunity to be heard but was not out to delay or frustrate the Respondent in any way. The appellant had earnestly looked up to the court to be given a chance to prosecute the suit. I find that the trial court ought to have taken into account that blunders are always committed by parties from time to time and that a party ought to be given an opportunity to ventilate their cases. 25.After an analysis of the entire record of appeal and the submissions presented, it is my considered view that the trial court ought to have exercised discretion in favour of the Appellant herein as good reasons had been furnished for the failure to attend court and prosecute the suit but instead the court went ahead to strike the Appellant’s initial affidavit and the application and failed to give the Appellant an opportunity to rectify the issue of the affidavit. The striking out of the application dated 23/4/2024 was not a determination on merit so as to allow the provisions of section 7 of the Civil Procedure Act to kick in and hence the Appellant’s application dated 10/6/2024 was properly before the trial court. The trial court ought to have considered the latest application but not to strike it again. It is clear that the trial court denied the Appellant an opportunity to ventilate its case. The trial court being a court of justice could as well have allowed the application and proceed to set aside or vary the exparte orders and compel the Appellant to pay throw away costs so that the parties would then be given an equal footing to ventilate their respective claims. Consequently, iam of the view that the finding by the trial court was in error and must be interfered with. 26.In the result, it is my finding that the Appellant’s appeal has merit. The same is allowed. The ruling by the trial court dated 4/2/2025 is hereby set aside and substituted with and order that the Appellant’s application dated 10/6/2024 is allowed in terms of prayers 2 and 3 thereof with the Respondent being paid throw away costs of ten thousand shillings (10, 000/) which must be paid on or before the suit commences for hearing in earnest. Each party shall bear their costs of this appeal. DATED AND DELIVERED AT SIAYA THIS 29TH DAY OF MAY 2026.D. KEMEIJUDGEIn the presence of:Ms. Achieng For Lunis Johnson..............................for AppellantTanga.........................................for RespondentMs. Moureen.............................................Court Assistant