https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9183

Intra Africa Assurance Co Ltd v Ibrahim (Civil Case E011 of 2025) [2026] KEHC 9183 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEHC 9183 (KLR) Republic of Kenya In the High Court at Eldoret Civil Case E011 of 2025 RN Nyakundi, J June 26, 2026 Between Intra Africa Assurance Co Ltd Plaintiff and Nasteh Ali Ibrahim Defendant Ruling 1.Before this Court is plaint dated 19th March 2025 seeking the following orders:a.This is a disclaimer suit arising from a breach of contract brought by Intra Africa Assurance Company Limited against Nasteh Ali Ibrahim, the Defendant herein, for their negligent acts and/or omissions.b.The Plaintiff is a limited liability company duly incorporated in Kenya under the Companies Act, cap 480 Laws of Kenya and licensed to carry out insurance business. Its address of service for purposes of this suit is care of M/S Munyaga Githaiga Advocates LLP, The Eldoret Daima Towers, P.O BOX 2041-30100, Eldoret. Email: info@mgkadvocatesllp.co.ke, Tel: 0723003656.c.The Defendant is a male adult of sound residing and working for gain in Mombasa within the Republic of Kenya. Service of summons upon him shall be effected through the Plaintiff’s advocates’ office.d.At all material times relevant to this suit the Plaintiff and the Defendant entered into a motor private comprehensive policy agreement in respect of Motor Vehicle registration number KDP 776X under the policy No. 24/05/AL/070/PC/37686.e.The Plaintiff avers that the insurance policy cover between the Plaintiff and the Defendant was effective as from 29th April 2024 to 28th April 2025.f.The Plaintiff further avers that it was an express term of the insurance policy cover that the Plaintiff would indemnify the Defendant for any loss or damages to his Motor Vehicle including death, bodily injuries, loss or damage to property of third parties arising out of the use of the use of Motor Vehicle registration number KDP 776X.g.That on or about 30th October, 2024 the said motor vehicle registration number KDP 159X was involved in an accident which occasioned Tyson Tatayo and Rodrigue Uwimana multiple injuries.h.The Plaintiff avers that under the terms of the insurance policy, the Defendant was required to report the accident as soon as reasonably possible but failed to do so.i.The Plaintiff only became aware of the accident upon being served with a statement of claim dated 11th November 2024.j.The action or inaction (conduct) of the Defendant herein amounts to a breach of the express terms of the contract by the Defendant specifically breach of clause 4 of page 8 of the policy documents. Particulars of breach of the insurance policy cover by the defendant:a.Deliberately failing to inform the Plaintiff that an accident occurred on the 30th October 2024 involving motor registration number KDP 776X.b.Deliberately violating the terms of the said policy.c.Breach of the insurance principle of utmost good faith.k.That further to paragraph 10 above, the Plaintiff avers that Tyson Tatayo and Rodrigue Uwimana have filed civil suits respectively being Eldoret SCCC E767 of 2024 and Eldoret SCCC E766 of 2024 seeking compensation as a result of the accident that occurred.l.The Plaintiff’s action is for an order of declaration that it is not entitled to honour or pay any sums arising by way of a claim against the defendant in the present suit or any other suit erroneously believed to be covered under the aforesaid insurance policy and or in favour of the named Plaintiff.m.There is no pending suit and there have been no pending proceedings between the Plaintiff and the Defendant relating to the subject matter of this suit and the cause of action herein relates to the Plaintiff named in this Plaint.n.This honourable Court has jurisdiction to try and determine this suit.o.Reasons wherefore the Plaintiff prays for judgment against the defendant for:a.A declaration that the Plaintiff is and has at all material times been entitled to avoid the aforesaid policy of insurance No. 24/05/AL/070/PC/37686 and any claims arising therefrom on the ground that the Defendant has breached the terms of the policy;b.A declaration that the Plaintiff is not liable to make any payments under the aforesaid policy insurance No. 24/05/AL/070/PC/37686;c.Any other and further reliefs that the Court may deem fit to grant; d) Costs of this suit; andd.Interest on (d) above at Court rates 2.In support of the application is the verifying affidavit of Mary Odera who deponed as follows:a.That I am the legal officer of intra Africa Assurance Company Limited, the Plaintiff herein.b.That I am duly authorized by the Plaintiff to swear this affidavit and thus competent to swear this affidavit.c.That I have read and understood the contents of the Plaint drawn on behalf of the Plaintiff by Munyaga Githaiga Advocates LLP.d.That there is no suit pending, and that there have been no previous proceedings, in any Court between the Plaintiff and the Defendant named in this suit over the subject matter of this suit and the cause of action relates to the Plaintiff named in the Plaint. Decision 3.The record shows very clearly that the Defendant was duly served with the suit papers but failed to enter appearance or file a defence. The legal framework is governed by Order 10 of the CPR and the principles which guide the Court discretion to enter judgment are now well settled now in Kenya as deduced from the following cases: James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] KECA 470 (KLR): The Ruling: The Court of Appeal firmly distinguished between regular and irregular default judgments. If a judgment is irregular (due to lack of proper service of summons), it must be set aside ex debito justitiae (as a matter of right and justice). The Court does not consider delay or whether the defendant has a good defense for irregular judgments. Access Case Document: You can read the ruling via Kenya Law repository. Kihara v Mathenge [2025] KEHC 7914: The Ruling: The High Court reinforced that for regular default judgments, the Court exercises its unfettered discretion under Order 10 Rule 11 to either set aside or maintain the judgment. To succeed, the defendant must explain their failure to appear/file a defense, demonstrate they applied to set it aside without inordinate delay, and attach a draft defense showing triable issues. Shah v Mbogo [1967] EA 116: The Ruling: This foundational East African Court of Appeal decision (frequently applied by the High Court of Kenya) established that the discretion of the Court to set aside ex parte judgments is intended to be used to ensure justice is done, without laying down rigid, exhaustive rules. D. S. Majanja J. Case Law (e.g., Civil Case No. E25 [2020] KEHC 3507): The Ruling: The High Court underscored the importance of affidavit of service. The Court will not enter a default judgment upon a mere letter from the plaintiff's advocates; it requires the plaintiff to strictly prove that the defendant was duly and properly served with the summons to enter appearance as required by Order 5 Rules 15 and 21. 4.From this perspective, a request for judgment is usually made after the party fails to enter an appearance or file a defence and if allowed judgment is entered against the Defendant. If the Defendant has been properly served but failed to appear the judgment us procedurally regular under Order 10 Rule 11 of the Civil Procedure Rules. 5.This is what the Court says in James Kanyita Nderitu v Maries Philotas Ghika & Another [2016] eKLR, the Court stated that:In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearances or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 Rule 11 of Civil Procedure Rules, to move the Court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the Court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such as the reason for the failure of the defendant to file his Memorandum of appearance or defence, as the case may be, the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice such party is likely to suffer. 6.In the instant case, the Defendant having been served and failed to enter appearance or file a defence, the request for judgment be and is hereby granted as prayed in the plaint as follows:a.That a declaration be and is hereby issued to the Plaintiff that is and has at all material times been entitled to avoid the aforesaid policy of insurance No. 24/05/AL/070/PC/37686 and any claims arising therefrom on the ground that the Defendant has breached the terms of the policy;b.That a declaration that the Plaintiff is not liable to make any payments under the aforesaid policy of insurance No. 24/05/AL/070/PC/37686;c.Costs of this suit be in the cause. DATED AND SIGNED AT ELDORET THIS 26TH DAY OF JUNE, 2026…………………………………………...R. NYAKUNDIJUDGE