https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12475

**REPUBLIC OF KENYA** **IN THE HIGH OF KENYA AT MERU** **CIVIL APPEAL NO. E221 OF 2023** **KENINDIA ASSURANCE COMPANY LIMITED..................…….APPELLANT** **VERSUS** **JULIUS NGUNGA…………...………………………..…………RESPONDENT** **JUDGMENT** 1. This Appeal arises from the Ruling of the Learned Senior Resident Magistrate Hon. R. Ongira delivered on 4/12/2023 in Tigania PMCC No. 24 of 2022, wherein the Court dismissed the Appellants application dated 2/11/2023. 2. Aggrieved by the said Ruling, the Appellant set forth the following grounds in the Memorandum of appeal dated 14th December, 2023; 1. **The trial Magistrate erred in law and fact in dismissing the Appellant’s application for leave to amend its defence by considering the viability of the Appellant’s cause of action at an interlocutory stage.** 2. **The trial Magistrate erred in law and fact in conflating the cause of action available to the Appellant under the law of contract to sue for damages for breach of contract with the statutory cause of action available to the Appellant under Section 10 (4) of the** **Insurance (Motor Vehicles Third Party Risks) Act to repudiate an Insurance policy.** * 1. **The trial Magistrate erred in law by *suo moto* framing and determining issues not raised by the parties to the application and by not giving parties an opportunity to address her on issues raised *suo moto.*** 2. **The Learned trial Magistrate erred and misdirected herself in law in failing to appreciate the import of Section 10 (4) of the Insurance (Motor Vehicles Third Party Risks) Act, to the detriment of the Appellant.** **Submissions on Appeal** 1. The Appellant, through the Firm of Nduati & Co. Advocates, filed submissions dated 29/10/2025. Counsel cited **Joseph Ochieng & 2 Others Trading as Aquiline Agencies –vs- First National Bank of Chicago (1995) KECA 31 (KLR)** for the proposition that, **Unless there is sufficient reason, for example, that the amendment is frivolous or vexatious, or that it will prejudice the opposite party, or that it amounts to abuse of the process of the Court, leave to amend should be freely given.”** According to Counsel, the Appellant’s cause of action, in its amended defence, was for breach of contract and not to enforce the statutory right available to it under the Insurance (Motor Vehicle Third Party Risk) Act. Counsel faulted the trial Court for basing its decision on the issue of the applicability of **Section 10(4) of the Insurance (Motor Vehicle Third Party Risk) Act**, which was neither raised by the Respondent, as a response to the Appellant’s application, nor pleaded by the Appellant, and cited **Galaxy Paints Co. Ltd –vs- Falcon Guards Ltd (2000) 2 EA 385, Political Parties Dispute Tribunal & Another –vs- Musalia Mudavadi & 6 Others Ex parte Petronila Were (2014) eKLR and Njuguna –vs- Minister for Agriculture (2000) 1 EA 184.** Counsel urged the Court to set aside the impugning Ruling and allow the Appellant to amend its statement of defence and Counterclaim. 1. The Respondent did not file any submissions. **Analysis and Determination.** 1. This being a first appeal, the Court is obligated to reconsider and re-evaluate the evidence adduced in the trial Court and draw its own conclusions. 2. In **Selle & Another –vs- Associated Motor Boat Co. Ltd (1968) EA,** the Court held as follows: **“This Court is not bound necessarily to accept the findings of fact by the Court below. An appeal to this Court is by** **way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”** 1. I have considered the Appeal herein, the trial Court’s Ruling which is the subject of this appeal as well as the submissions on record. 2. From the grounds of appeal, the issue for determination is whether the trial Court’s decision was grounded in law. 3. The crux of this Appeal is the trial Court’s dismissal of the Appellant’s application dated 2/11/2023, seeking *inter alia* a declaration that the Respondent breached his contractual duties under the Insurance Policy and should pay damages in the sum of Kshs 2,023,693 with interests thereon from the date of filing of the Counterclaim. The import of the proposed amendments was to introduce an entirely new cause of action and effectively avoid settling the decretal sum. 4. **Order 8 Rule 5 (1) of the Civil Procedure Rules** provides that, **“For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the Court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.”** 5. The general principles on amendment of pleadings are provided in Halsbury’s Law of England 4th Edition Reissue Vol. 36 (1) para 76, as follows; “**The Court may at any stage of the proceedings allow the Plaintiff to amend the indorsement on his writ or any party to amend his pleadings. The purpose of amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings, and for this purpose the Court may at any stage order the amendment of any document, either on the application of any party to the proceedings or of its own motion, on such terms as to** **costs or otherwise as may be just and in such manner, if any, as the Court may direct. The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the** **trial if on analysis it is intended for the first time to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side, and there is no injustice if the other side can be compensated by an order as to costs.”** 1. In **Coffee Board of Kenya –vs- Thika Coffee Mills Limited & 2 Others (2014) KECA 409 (KLR),** the Court of Appeal cited **Mulla, The Code of Civil Procedure, 18th Ed, Vol. 2** at pages 1751 – 1752, on the guide to amendments of pleadings as follows: **“a. Amendments that are necessary should be allowed for the determination of the real controversy in the suit. b. The proposed amendments should not alter or be a substitute for the cause of action based on which the original list was raised. c. Inconsistent and contradictory allegations in negation of the admitted position of facts or mutually destructive allegations of facts wouldn’t be allowed to be incorporated by means of amendments.** **d. Proposed amendments should not cause prejudice to the other side that cannot be compensated by way of costs. e. No amendment should be allowed that amounts to or results in defeating a legal right of the** **opposite party on account of lapse of time. f. No party should suffer on account of technicalities of law, and an amendment should be allowed to minimize the litigation between the parties. g. Delay in filing the application should properly be compensated for by costs. h. Error or mistake that is not fraudulent should not be made a ground for rejecting the application for amendment to pleadings.”** 1. Similarly in **Golden Carra Investments Limited –vs- Principal Secretary, Ministry of Transport Infrastructure and Urban Development (State Department of Housing and Urban Development) (2023) KEHC 19530 (KLR),** the Court (E. C. Mwita J, as he then was), was instructive that; **“A careful reading of the intended amendments shows that they have, if permitted, the potential of aiding the Applicant to seek to set aside part of the arbitral award, thus changing the character and tenor or the application dated 30th August 2022. That is, the Applicant will in effect, have surreptitiously have been allowed to apply to set aside the award** **outside the time allowed by statute (Section 35 (3) of the Arbitation Act). The Court must, in the circumstances of this case, see the** **application as it is and reject the attempt to circumvent the law through the intended amendments.”** 1. It is contended that the trial Court erred in determining the applicability of **Section 10(4) of the Insurance (Motor Vehicle Third Party Risk) Act,** which according to the Appellant was neither pleaded nor raised by the Respondent. 2. I am guided by the holding in **Odds Jobs –vs- Mubia (1970) E.A 476,** that, **“A Court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the Court for decision.”** 3. With respect, the Appellant pleaded at paragraphs 12 and 20 of the Amended defence and Counterclaim the provisions of **Section 10 of the Insurance (Motor Vehicle Third Party Risk)Act, and therefore, the claim that the trial Court determined unpleaded issues does not hold.** 4. This matter has already been fully determined, and the decretal sum duly settled by the Appellant. In the circumstances, therefore, allowing the proposed amendments would, in effect, amount to introduction of an entirely new cause of action, fundamentally altering the nature and character of the initial claim, and unnecessarily prolonging this otherwise concluded litigation. Moreover, such a course would occasion grave prejudice and injustice to the decree holder, who would be compelled to relitigate a fresh claim founded materially upon different legal principles from those contemplated at the commencement of the suit. 5. If the Appellant indeed sought to avert liability for the settlement of the decretal sum and/or indemnity, the proper course would have been to institute declaratory proceedings against the Respondent within the statutory period of three months, as circumscribed under **Section 10(4) of the Insurance (Motor Vehicle Third Party Risk) Act.** It is impermissible for the Appellant to circumvent the requirement by seeking, at this late stage, to amend its defence and Counterclaim. 6. I find that the trial Court properly exercised its discretion in disallowing the amendments sought by the Appellant. 7. The upshot from the foregoing analysis is that the appeal is in want of merit and it is hereby dismissed with costs to the Respondent. **DATED AND DELIVERED AT MERU THIS 21ST DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **21/7/2026** **In the presence of:-** Ms. Muya holding brief for Mr. Njoroge Mureu for the Appellant. Mr. Wario Minish for the Respondent (absent).