[2022] KEHC 10722 (KLR)

Britam General Insurance Co. Kenya Limited v Raveco Hauliers Limited (Civil Appeal 22 of 2021) [2022] KEHC 10722 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10722 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 22 of 2021

OA Sewe, J

May 5, 2022

Between

Britam General Insurance Co. Kenya Limited

Appellant

and

Raveco Hauliers Limited

Respondent

((Being an Appeal from the Judgment of the Chief Magistrates’ Court at Mombasa (Hon. A. Lesootia, PM) delivered at Mombasa on the 24th February, 2021 in Mombasa CMCC No. 1468 of 2019))

Judgment

1. This appeal arises from the Judgment delivered by Hon. A. Lesootia, PM, on 24th February 2021 in Mombasa Chief Magistrates Civil Case No. 1468 of 2016: Raveco Hauliers Limited v Britam General Insurance Co. Kenya Limited. The appellant had been sued in that case by the respondent on the basis of a third party insurance cover issued by the appellant in respect of the respondents Motor Vehicle Registration No. KBT 100H/ZE 0052 MAN, being Policy No. COMP.MSA/MCOM/POL/2059133.

2. The respondent’s cause of action was that on or about 2nd April 2016, its Motor Vehicle Registration No. KBT 100H/ZE 0052 was involved in an accient at Cannan area near Voi, as a result of which the said motor vehicle was seriously damaged. It then notified the appellant of the loss and damage but that the defendant refused and/or failed to indemnify it. The respondent accordingly filed the lower court suit on 28th August 2019 claiming the following reliefs:(a)The sum of Kshs. 5,266,762. 50 being the repair charges expended by the respondent on the insured motor vehicle;(b)Loss of user at the rate of Kshs. 300,000/= per month with effect from 2nd April 2016 to the date of payment of the repair charges by the appellant;(c)Kshs. 6,162,307. 24 with interest, being the loan repayment amount;(d)Kshs. 52,000/= being towing charges;(e)Kshs. 15,000/= being monthly storage charges for Motor Vehicle Registration No. KBT 100H/ZE 0052 MAN from the end of March 2016 to the date of payment of the repair costs by the appellant;(f)Aggravated damages for distress caused to the plaintiff and disruption and loss of business at the rate of Kshs. 300,000/= per month;(g)Aggravated damages for distress caused to the plaintiff and disruption and loss of business;(h)Punitive damages for the defendant’s malicious conduct and failure to comply with contractual and statutory terms including insurance Regulatory Authorities’ directives;(i)Costs of the suit;(j)Interest on [a], [b], [c], [d], [e]. [f], [g] and [h] at court rates from 2nd April 2016 till payment in full.(k)Any further relief the Court may deem just.

3. The appellant denied the claim as presented before the lower court vide its Defence dated 27th September 2019. In particular, the appellant denied that it was the insurer of the subject motor vehicle at the material time. It therefore denied the allegations of breach of contract and all the particulars set out in Paragraph 8 of the Plaint. In the alternative, the appellant averred that, in its proposal form, the respondent had declared that the value of the motor vehicle was Kshs. 3,000,000/= and that it was in consequence thereof that it issued the respondent with a policy cover for Kshs. 3,000,000/= and no more. Accordingly, the appellant had pleaded that the said policy did not cover the following:(a)Loss of use of the motor vehicle;(b)Interest in respect of any loan obtained by the respondent in connection with the said motor vehicle;(c)Storage charges in respect of the said motor vehicle;(d)Loss of business in respect of the said motor vehicle;(e)Damages, whether aggravated, punitive or otherwise.

4. Thus, the appellant’s prayer before the lower court was for the dismissal of the respondent’s suit with costs.

5. The record of the lower court shows that the suit was, on the 8th October 2019, allocated to Hon. Lesootia, PM by Hon. Makori, Chief Magistrate. The matter was subsequently heard and a determination rendered on 24th February 2021. The lower court found for the respondent and made the following awards:(a)Kshs. 3,000,000/= being the sum insured;(b)Kshs. 52,000/= for the towing charges;(c)Loss of user at a monthly rate of Kshs. 300,000/= with effect from 2nd April 2016 until payment in full;(d)Costs of the suit and interest from the date of judgment.

6. The rest of the respondent’s prayers were found to be without merit and were accordingly dismissed.

7. Being aggrieved by the decision of the lower court, the appellant filed this appeal on 2nd March 2021 on the following grounds:(a)that the learned Principal Magistrate erred in law and in fact in holding that there was a valid contract of insurance between the appellant and the respondent, contrary to the evidence placed before him;(b)that the learned Principal Magistrate erred in holding that the appellant is liable for the acts and omissions of Masumali Meghji Insurance Brokers Ltd, contrary to the evidence before him;(c)That the learned Principal Magistrate erred in law in making an award which has been quantified to a sum of Kshs. 20,752,000/= plus costs and interest; which award exceeded his pecuniary jurisdiction of Kshs. 10,000,000/=; and consequently the same is erroneous, null and void;(d)That the learned Principal Magistrate erred in law and in fact in making an award for loss of user at a monthly rate of Kshs. 300,000/= with effect from 2nd April 2016 until payment in full yet this was consequential loss that was not recoverable in a standard form policy of insurance issued by the appellant to the respondent; and when no proper documentary evidence by way of income tax returns, balance sheet, etc, showing the the actual monthly earnings of the respondent’s said Motor Vehicle Registration No. KBT 100H/ZE 0052 was tendered in evidence to prove the same;(e)That the learned Principal Magistrate erred in law and in fact whilst making an award for loss of use at Kshs. 300,000/= per month with effect from 2nd April 2016 when there was clear evidence before thim that the respondent had, as he is bound to do in law, mitigated its loss by buying a new truck Registration No. KCG 100U from Auto Continental Limited on 6th May 2016;(f)That the learned Principal Magistrate erred in failing to hold that by reason of the purchase by the respondent of a new truck to replace the suit motor vehicle, he did not suffer any loss of use and consequently the respondent was not entitled to any award in respect of loss of use;(g)That the learned Principal Magistrate erred whilst making an award for loss of use of Kshs. 300,000/= per month with effect from 2nd April 2016 since he did not consider or adequately consider the evidence tendered before him that, in addition to the truck Registration No. KBT 100H/ZE 0052, which was involved in the accident on 2nd April 2016, the respondent owned 2 other trucks, which were in operation in addition to the new truck which it purchased on 6th May 2016;(h)That the learned Principal Magistrate erred in law and in fact in making an award of Kshs. 52,000/= for payment of towing charges yet this was consequential loss that was not recoverable under the subject standard policy form policy of insurance issued by the appellant;(i)That the learned Principal Magistrate erred in failing to consider or properly consider the written submissions filed by counsel for the appellant; and,(j)That the learned Principal Magistrate erred in failing to consider or properly consider all the evidence before him and/or make any or any proper findings on the evidence before him.

8. The appellant, consequently, prayed that the appeal be allowed with costs and that the judgment of the learned Principal Magistrate dated 24th February 2021 be set aside or varied to the extent as to this Court appears proper; and that an appropriate order for costs be made in respect of this appeal and in respect of the proceedings in the lower court.

9. The appeal was canvassed by way of written submissions which were subsequently highlighted on 25th October 2021, pursuant to the directions given herein on 2nd July 2021. Thus, Mr. Adede for the appellant relied on his written submissions dated 29th July 2021, in which he framed issues on the basis of their 10 grounds of appeal and fashioned his submissions along those lines. In respect of the first ground of appeal, namely, whether the learned Principal Magistrate had the jurisdiction to make an award of Kshs. 21,330,571. 47, Mr. Adede made reference to Section 7(1) of the Magistrates Courts Act which sets out the limits of the pecuniary jurisdiction of a principal magistrate at Kshs. 10,000,000/=.

10. [10] Mr. Adede likewise cited Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR; Kenya Ports Authority v Modern Holding [EA] Ltd [2017] eKLR and Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, among other authorities, to support his argument that jurisdiction is primordial in every suit and must be ascertained before a court of law can purport to entertain and/or determine a matter. Counsel urged the Court to take notice of the fact that, at the time the suit was filed before the lower court, the liquidated aspect of the prayers sought amounted to Kshs 36,081,069. 74. He therefore submitted that the learned Principal Magistrate fell into grave error in assuming jurisdiction in the matter and proceeding to hear and determine the suit as he did; and therefore that the proceedings before the lower court are nothing but a nullity. The case of Phoenix of E.A. Assurance Company Ltd v S.M. Thiga T/A Newspaper Service [2019] eKLR was cited by Mr. Adede to buttress his argument.

11. On whether there was a valid contract between the appellant and the respondent and the role of Masumali Meghji Insurance Brokers, Mr. Adede took the view that, on the basis of the evidence adduced before the lower court, the cheque in payment of the premiums due on the policy was honoured on 5th April 2016; which was three days after the accident. He accordingly submitted that there was no valid contract of insurance as at 2nd April 2016 when the accident in question happened. In his view, any verbal arrangements between the respondent and the agent could not bind the appellant. He relied on Section 156(2) of the Insurance Act, Chapter 487 of the Laws of Kenya, which provides that:“An intermediary shall not receive any premiums on behalf of an insurer.”

12. Mr. Adede also impugned the judgment of the lower court on the ground that the learned Principal Magistrate erred in making an award of Kshs. 300,000/= for loss of user. In his submission loss of user and loss of business are consequential losses; and are therefore not recoverable under a contract of insurance. He relied on Concord Insurance Company Ltd v David Otieno Alinyo & Another [2005] eKLR in which it was held that consequential loss is not recoverable in a standard form policy of insurance, unless expressly covered by the policy. He further submitted that, in any case, the respondent had three trucks; and therefore there was need to isolate the income that was due for the subject truck.

13. It was further the submission of Mr. Adede that the lower court ought to have taken into account that the respondent purchased another truck on 6th May 2016 in replacement of the damaged truck; and therefore that loss of user, if anything, ought to have been awarded only for one month at the nominal rate of Kshs. 100,000/= as the amount of Kshs. 300,000/= was not proved. He cited Chris Ndolo Mutuku v Associated Motors Limited & Another [2020] eKLR in which a nominal award of Kshs. 100,000/= was given for loss of user and loss of business.

14. In respect of the towing charges of Kshs. 52,000/=, Mr. Adede submitted that, in making that award, the learned Principal Magistrate failed to properly consider the appellant’s written submission at page 145 of the Record of Appeal. He reiterated his assertion that towing charges are in the nature of consequential losses which are not recoverable in a standard form poliy of insurance. He therefore urged the Court to find that the appeal is meritorious and to allow the same with costs to the appellant.

15. On behalf of the respondent, written submissions were filed herein on 4th October 2021 by the firm of M/s C.K. Mwero Advocates. Thus, Mr. Kalimbo, learned counsel for the respondent, urged the Court to note that the appellant opted to call no evidence before the lower court and therefore utterly failed to controvert the respondent’s case. He cited Section 78(2) of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, and the cases of Makube v Nyamuro [1983] eKLR and Interchemie EA Ltd v Nakuru Veterinary Centre Limited [2001] eKLR for the proposition that an appellate court ought not to interfere with any finding of fact by the lower court unless the same was based on no evidence or on misapprehension of the evidence presented; or that the judicial officer had acted on a wrong principle of law in reaching his/her finding.

16. Counsel urged the Court to find that credible and uncontroverted evidence was adduced before the lower court to prove the existence of a valid contract of insurance between the appellant and the respondent by way of a certificate of insurance (at page 20 of the Record of Appeal); certified true copies of the cheques dated 22nd February 2016 and 31st March 2016, respectively, drawn in favour of the appellant before the date of the accident (at pages 21 to 24 of the Record of Appeal) and a copy of the Police Abstract dated 2nd April 2016 (at page 25 of the Record of Appeal) showing that the respondent’s motor vehicle had been insured by the appellant.

17. Mr. Kalimbo accordingly posited that, since no evidence of non-payment of premiums and/or cancellation of the policy for non-payment of premiums was produced by the appellant to challenge the respondent’s suit, the lower court’s finding as to the existence of a valid contract of insurance is unassailable. He urged the Court to bear in mind the admission at paragraph 6 of the appellant’s Defence that the respondent’s proposal covered only Kshs. 3,000,000/=.

18. In respect of the role played by Masumali Meghji Insurance Brokers, Mr. Kalimbo submitted that the respondent availed documentary evidence to prove that Masumali Meghji Insurance Brokers were the appellant’s agent; and therefore that the appellant is bound by their actions on its behalf. He added that an agent cannot be held liable where there is a disclosed principal; and that Section 156 of the Insurance Act, as amended, was declared unconstitutional in Association of Insurance Brokers of Kenya v Cabinet Secretary for National Treasury & Planning & 4 Others [2021] eKLR. In his submission therefore, the lower court arrived at the correct decision on the issue.

19. On loss of user, again it was the submission of Mr. Kalimbo that the respondent adduced credible evidence before the lower court to show that he suffered great losses and ended up servicing a loan to the tune of Kshs. 6,162,307. 24 in an attempt to mitigate the losses that he had to incur as a direct consequence of the subject accident. He added that although an admission was made in the Defence for Kshs. 3,000,000/= the said amount was not paid or tendered by the appellant and remains unpaid to date. He urged the Court to be guided by the principle of retitutio in integrum and award the respondent loss of user for a period of one year, on the authority of Samuel Kariuki Nyangoti v Johaan Distelberger [2017] eKLR. He otherwise defended the lower court’s decision and submitted that the respondent was entitled to compensation from 2nd April 2016 until payment in full.

20. With regard to the pecuniary jurisdiction of the lower court, Mr. Kalimba was of the view that the suit was properly filed before the Chief Magistrate’s Court, whose pecuniary jurisdiction is Kshs. 20,000,000, per Section 7(1)(a) of the Magistrates Courts Act. He explained that, after the institution of the suit, the Chief Magistrate, Hon. E. Makori, in the exercise of his administrative functions, opted to allocate the matter to Hon. Lesootia; who heard the case to conclusion. According to Mr. Kalimba, the final award only exceeded Kshs. 20,000,000/= because of the continuing injury occasioned by loss of user. He added that the award was otherwise lawful and in sync with Articles 159, 160, 169 and 259 of the Constitution.

21. On towing charges, Mr. Kalimba urged the Court to treat the sum of Kshs. 52,000/= as an item of special damages. He relied on Hahn v Singh, Nairobi CA No 42 of 1983 to support his argument that the said item was not only specifically pleaded as required, but was also proved before the lower court by a receipt issued by Voi Auto Performance. He reiterated the respondent’s stance that the appellant opted to adduce no evidence to controvert the respondent’s case before the lower court. He therefore prayed that the appeal be dismissed with costs.

22. This being a first appeal, it is the duty of this Court to re-evaluate the evidence that was presented before the lower court and make its own conclusions thereon. (see Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123). I have consequently perused the record of the lower court and noted that the respondent called two witnesses, while the appellant opted to adduce no evidence. The first witness for the respondent was Ravinder S Mahal (PW1). He testified on 8th September 2020 and adopted his witness statement dated 27th August 2019. In essence, the evidence of PW1 was that, at all times material to this suit, the respondent was the insured, registered and beneficial owner of Motor Vehicle Registration No. KBY 100H/ZE 0052; and that the said motor vehicle was insured vide a comprehensive insurance Policy No. COMP.MSA/MCOM/POL/2059133 issued by the appellant.

23. It was also the evidence of PW1 that the said policy was in force for one year with effect from 26th October 2015 to 15th October 2015; and that he, as the managing director of the respondent, caused the premiums due, amounting to Kshs. 180,810/=, to be paid to the appellant vide two cheques dated 22nd February 2016 and 31st March 2016. He therefore testified that it was a term of the said insurance contract for the appellant to take all reasonable measures and steps to ensure that the respondent was indemnified in the event of the envisaged perils such as accidents.

24. At paragraph 6 of his witness statement, PW1 stated that, on or about the 2nd April 2016, while the subject motor vehicle was under comprehensive insurance with the defendant, it was involved in a raod traffic accident at Cannan area near Voi; whereupon the motor vehicle was seriously damaged. He added that the respondent promptly complied with the necessary requirements and immediately informed the appellant of the occurrence with the aim of having the appellant take over the respondent’s claim for purposed of indemnity. It was further the evidence of PW1 that the defendant ignored, refused and/or failed to respond to the respondent’s claim. Instead, it chose to cancel the policy through a letter dated 15th July 2016. In spite of pleas by the respondent to have the claim settled, the appellant persisted in its stance that the policy stood cancelled. In the circumstances, the respondent opted to file the suit that is the subject of this appeal.

25. PW1 also explained that the respondent had to pay the towing charges as well the repair charges for the motor vehicle in the sum of Kshs. 5,266,762. 50; and, because it was incurring loss of user at the rate of Kshs. 300,000/= per month, the respondent decided to take a loan of Kshs. 4,960,000/= to purchase a new truck, Registration No. KCG 100U from Auto Continental Limited which was repayable with interest in the total sum of Kshs. 6,162,307. 24 (principal plus interest). PW1 also produced the respondent’s Bundle of Documents in support of the claim, and they were marked the Plaintiff’s Exhibit No. 1-14.

26. It was on account of the foregoing that the respondent prayed for the following reliefs:(a)The sum of Kshs. 5,266,762. 50 being the repair charges expended by the respondent on the insured motor vehicle;(b)Loss of user at the rate of Kshs. 300,000/= per month with effect from 2nd April 2016 to the date of payment of the repair charges by the appellant;(c)Kshs. 6,162,307. 24 with interest, being the loan repayment amount;(d)Kshs. 52,000/= being towing charges;(e)Kshs. 15,000/= being monthly storage charges for Motor Vehicle Registration No. KBT 100H/ZE 0052 from the end of March 2016 to the date of payment of the repair costs by the appellant;(f)Aggravated damages for distress caused to the plaintiff and disruption and loss of business at the rate of Kshs. 300,000/= per month;(g)Aggravated damages for distress caused to the plaintiff and disruption and loss of business;(h)Punitive damages for the defendant’s malicious conduct and failure to comply with contractual and statutory terms including insurance Regulatory Authorities’ directives;(i)Costs of the suit;(j)Interest on [a], [b], [c], [d], [e]. [f], [g] and [h] at court rates from 2nd April 2016 till payment in full.(k)Any further relief the Court may deem just.

27. The respondent’s 2nd witness before the lower court was Peter Mutua (PW2), who was then working for CMC Motors, Mombasa, as the Service Manager. He confirmed that the suit motor vehicle was towed to their garage for inspection for which they charged Kshs. 12,000/=. He produced the inspection report and a receipt for Kshs. 12,000/= as exhibits before the lower court. With that the respondent closed its case. As the appellant had not filed witness statements, its case was deemed as closed and directions given by the lower court for the filing of written submissions before the impugned judgment was delivered on 24th February 2021.

28. In the light of the foregoing, the two main issues that arise for determination are as follows: -(a)Whether there was a valid contract of insurance between the parties herein; and(b)Whether the respondent is indeed entitled to the sums awarded it by the lower court;

29. Howevever, before tackling those two issues, it is imperative to consider a more fundamental issue raised by Mr. Adede for the appellant; namely, whether the learned Principal Magistrate had jurisdiction to hear the suit as filed. His argument was that the learned Principal Magistrate fell into grave error by proceeding to hear and determine the matter yet he did not have the pecuniary jurisdiction to handle the claim in the first place. Mr. Kalimbo on the other hand blamed the anomaly on the administrative orders issued by the Chief Magistrate, Hon. Makori, in allocating the case to Hon. Lesootia. In his submission, Hon. Lesootia only did what was expected of him in an attempt to prevent the respondent from suffering a wrong without a remedy.

30. [30] The position at law on matters jurisdiction was clearly spelt out by the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR, thus:“A court's jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings...Where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power on Parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law."

31. Article 169 (2) of the Constitution provides that parliament shall enact legislation conferring jurisdiction and powers on the courts established under Sub-article (1). The relevant legislation, in this case, is the Magistrates Courts Act No. 26 of 2015 wherein Section 7(1) provides for the pecuniary jurisdiction of the said courts as hereunder:(1)A magistrate's court shall have and exercise such jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter does not exceed —(a)twenty million shillings, where the court is presided over by a chief magistrate;(b)fifteen million shillings, where the court is presided over by a senior principal magistrate;(c)ten million shillings, where the court is presided over by a principal magistrate;(d)seven million shillings, where the court is presided over by a senior resident magistrate; or(e)five million shillings, where the court is presided over by a resident magistrate.

32. It is manifest therefore that when the lower court suit was filed, the sum total of the liquidated prayers alone was in the region of Kshs. 24,081,069. 74; worked out as hereunder:(a)The sum of Kshs. 5,266,762. 50 being the repair charges incurred by the respondent;(b)Kshs. 12,000,000 being loss of user for 40 months from April 2016 to August 2019 at the rate of Kshs. 300,000/= per month;(c)Kshs. 6,162,307. 24 being the loan amount together with interest due thereon;(d)Kshs. 52,000/= being towing charges;(e)Kshs. 600,000/= being towing charges at Kshs. 15,000/= per month from April 2016 to August 2019;

33. It is therefore inexplicable that counsel for the respondent opted to file the matter before the lower court; and it is even more puzzling that the Chief Magistrate allocated the matter to a principal magistrate whose pecuniary jurisdiction is capped at Kshs. 10,000,000/= for hearing and determination. It is manifest therefore that the suit was filed before the Chief Magistrates Court, notwithstanding that the said court lacked the jurisdiction to entertain the claim; and that it was allocated to a principal magistrate whose pecuniary jurisdiction is, in any event, much lower than that of the Chief Magistrate.

34. Needless to say that jurisdiction is everything; a fact underscored by Hon. Nyarangi, JA, in Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd (supra) thus:“Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction...Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.”

35. Likewise, in Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service (supra), the Court of Appeal held that:“In common English parlance, ‘Jurisdiction’ denotes the authority or power to hear and determine judicial disputes, or to even take cognizance of the same. This definition clearly shows that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination. If a court therefore proceeds to hear a dispute without jurisdiction, then the result will be a nullity ab initio and any determination made by such court will be amenable to being set aside ex debito justitiae...”

36. The same position was taken by the the Court of Appeal in Joseph Muthee Kamau & another v David Mwangi Gichuru & Another [2013] eKLR thus:“…When a suit has been filed in a court without jurisdiction, it is a nullity. Many cases have established that; the most famous being the case of Kagenyi v Musirambo [1968] EA 43. The same would apply to pecuniary jurisdiction in a claim for special damages where the liquidated sum claimed exceeds the court’s pecuniary jurisdiction….”

37. Likewsie, in Pelezia Bakari Salim v Somoire Keen & 2 others [2020] eKLR in which the subordinate court awarded an amount as damages that exceeded its pecuniary jurisdiction, the Court of Appeal held that:“No matter how serious the appellant’s injuries were, the trial magistrate ought to have been alive to the basic law that she could not award any shilling beyond her pecuniary jurisdiction as a Resident Magistrate, even if the suit had been filed in a Chief Magistrates’ Court... Jurisdiction is not a procedural or legal technicality, it is a substantial issue that goes to the very heart of a matter that is before a court, and without jurisdiction a court acts in vain.” (Per Hon. Musinga, JA)

38. Thus, in the interest of expediency and efficiency in the administration of justice, the issue of jurisdiction is one that ought to be taken at the earliest opportunity; because of the grave consequences attendant to proceedings that are undertaken without jurisdiction. Accordingly, in The Owners of Motor Vessel “Lillian S”, it was held that:“...it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it..."

39. Parties and their counsel would thus be heeding the dictates of Articles 159(2)(b) of the Constitution as well as Sections 1A, and 1B of the Civil Procedure Act if the question of jurisdiction is raised as early as possible. It is therefore surprising that counsel for the appellant did not raise the issue before the subordinate court. That notwithstanding, it is trite law that jurisdiction can be raised at any stage, even on appeal, as has been done herein. In Kenya Ports Authority v Modern Holding [EA] Limited [2017] eKLR, the Court of Appeal made it clear that:“We have stressed that jurisdiction is such a fundmental matter that it can be raised at any stage and even on appeal, though it is always prudent to raise it as soon as the occasion arises. It can be raised at any time, in any manner, even for the first time on appeal, or even viva voce and indeed, even by the court itself provided that where the court raises it suo motu parties are to be accorded the opportunity to be heard.”

40. [40] In the result, the appeal succeeds on the point; such that it is superfluous for the Court to engage in a merit consideration of the appeal. In Phoenix of E.A. Assurance Company Ltd (supra), the Court of Appeal pointed out that:“Jurisdiction is primordial in every suit. It has to be there when the suit is filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction...It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferrable to another court; jurisdiction cannot be transferred by consent and ultimately, all orders emanating from that suit are null and void...”

41. Indeed in Macfoy v United Africa Co. Ltd [1961] 3 AllER 1169, it was emphasized that:“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse...”

42. In the result, I find merit in the appeal. The same is hereby allowed and orders granted as hereunder:(a)That the judgment of the subordinate court dated 24th February 2021 be and is hereby set aside and substituted with an order striking out the lower court suit, namely, Mombasa Chief Magistrates Civil Case No. 1468 of 2016: Raveco Hauliers Limited v Britam General Insurance Co. Kenya Limited.(b)Each party to bear own costs of the lower court suit.(c)The appellant be and is hereby awarded costs of this appeal.

43. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 5TH DAY OF MAY 2022. __________________OLGA SEWEJUDGE