https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10210

Britam Insurance Ltd v Omolo (Civil Miscellaneous Application E064 of 2026) [2026] KEHC 10210 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10210 (KLR) Republic of Kenya In the High Court at Nakuru Civil Miscellaneous Application E064 of 2026 JK Sergon, J July 13, 2026 Between Britam Insurance Limited Applicant and Patrice Awour Omolo Respondent Ruling 1.Britam Insurance Limited, the applicant herein took out the motion dated 20th February, 2026 whereof it sought for inter alia:i.That civil suits have been filed in Molo Chief Magistrate’s Court being Molo CMCC No. E102 of 2025, Phillip Kiprotich Rono Vs Patrice Awuor Omolo and Molo CMCC E101 of 2025, Victor Kiprono Vs Patrice Awuor Omolo seeking general and special damages resulting from the alleged Road Traffic Accident involving the Applicant’s insured motor vehicle.ii.That the applicant is anxious that if the same proceeds to completion and the subordinate courts delivers a Judgment, the Applicant herein shall be compelled to make good the judgment which it should not. 2.The applicant filed an affidavit sworn by Peter Makau, its legal officer in support of the motion. It would appear the application is exparte in nature. 3.It is the submission of the applicant that it insured Motor vehicle registration No. KCQ 079S vide Insurance Policy No. 59680710046612021. The applicant further averred that the following compensatory suits ie.i.Molo CMCC No. E102 of 2025 Philip Kiprotich Rono Vs Partice Awuor Omolo andii.Molo CMCC No. 101 of 2025 Victor Kiprono Vs Partice Awuor Omolo, were filed to claim for damages arising from the accident which occurred on 22nd July, 2023 involving the insured’s motor vehicle registration No. KCQ 079S. 4.The applicant also averred that there was a delay in transmitting the summons to enter appearance from the insured to the applicant and that the summons to enter appearance was received late by the applicant, at which point, the suit had proceeded and in consequent the statutory provided time for filing disclaimer suits. 5.It is the submissions of the applicant insurer that it had no knowledge as to the proceedings filed in the subordinate court as no service of neither summons nor notices were effected upon it and therefore failure to file a disclaimer suit was an innocent, inadvertent and unintended mistake. 6.The applicant now seeks for leave to file a disclaimer suit out of time. It is pointed out that it was an express term under the Insurance Contracts that the Applicant would not be liable to indemnify the insured respondent from any loss or liability arising from an accident involving the subject motor vehicle, if the claimants were on board the subject motor vehicle as passengers. It is the submission of the applicant that it is neither legally nor contractually liable to indemnify the Respondent or to satisfy any judgment arising from the aforesaid suits. 7.It is clear from the application that the applicant is seeking for two main prayers:First, is for leave to file a disclaimer suit out of time.Secondly, is an order for stay of proceedings in the subordinate court. 8.As regards the first prayer for leave to file a disclaimer suit out of time, it is submission of the applicant that it had no knowledge of proceedings filed in the subordinate court as no service of neither summons nor notices was effected on it and therefore its failure to file a disclaimer suit was innocent, inadvertent and unintentional mistake. 9.It is trite law that disclaimer suits are usually filed under the Limitation of Actions Act Cap – 22 Laws of Kenya. An insurer files a suit to disclaim liability under an Insurance Policy, basically to tell the court that the insurer is not liable to settle the claim because of a breach, fraud non-diclosure etc. 10.If an insurer wants to file a disclaimer suit to declare the policy void, it must file within the time prescribed by statute which is 6 years from the date of breach, non-disclosure etc. 11.It is also important to note that most insurance policies have clauses on timelines and courts have upheld these contractual timelines as long as they are not unconscionable. Insurers often disclaim and the claimant must sue within 12 months or the insurer must sue within 6 years under Cap. 22 Laws of Kenya. However, if an insurer wants to disclaim for late notification, they must act promptly. 12.In the instant case this court is satisfied that the insurer moved with speed to instruct its advocates to enter appearance, file its defence and to seek for leave to file a disclaimer suit out of time as soon as it came to its notice. This court is also satisfied that the reasons or grounds advanced by the applicant for the delay to file a disclaimer suit within time are plausible. This court will therefore exercise its discretion by granting the applicant leave to file a disclaimer suit out of time. It should do so within 10 days from the date of this ruling. 13.As regards the second prayer for stay of proceedings in the subordinate court, this court is of the view that it is not appropriate to grant the prayer at this state. There must be a basis for granting such an order. A substantive action or proceedings must exist. In my view, the prayer was prematurely made. Such an application can be made after the disclaimer suit has been filed and within that suit. 14.For the above reason, I decline to grant the order for stay of proceedings in the subordinate court. 15.The applicant has applied for costs to be in the cause. This court directs costs to abide the outcome of the intended disclaimer suit. DATED, SIGNED AND DELIVERED THIS 13TH DAY OF JULY, 2026 AT NAKURU.J. K. SERGONJUDGEIn presence of:Jamleck C/AMiss Kirui holding brief for Ochang for Applicant