[2022] KEHC 11401 (KLR)
The court determined that it lacks jurisdiction to extend the time within which to file a declaratory suit under section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act. The applicant's Originating Summons, which sought such an extension, was therefore misconceived and incompetent. The court relied on...
Source-derived case information.
- Citation
- [2022] KEHC 11401 (KLR)
- Parties
- Applicant: Madison Insurance Company Ltd; Respondent: Eita Muthambi Ndonye
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E005 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; originating summons struck out with costs to respondent
- Judges
- GMA Dulu
- Legal Topics
- Jurisdiction of Court, Preliminary Objection, Extension of Time, Insurance Litigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Madison Insurance Company Ltd
Applicant
Eita Muthambi Ndonye
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the court has jurisdiction to extend time for filing a declaratory suit under section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act.
- 2 Whether the Originating Summons seeking extension of time is competent and properly before the court.
Ratio Decidendi
The court determined that it lacks jurisdiction to extend the time within which to file a declaratory suit under section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act. The applicant's Originating Summons, which sought such an extension, was therefore misconceived and incompetent. The court relied on persuasive authority from a previous High Court decision, which held that the statute does not provide for extension of time for commencement of declaratory proceedings. As the applicant did not file any submissions to counter the preliminary objection, the objection was upheld and the Originating Summons was struck out with costs to the respondent.
Court Disposition
preliminary objection upheld; originating summons struck out with costs to respondent
Orders
- The preliminary objection is upheld.
- The Originating Summons is struck out as misconceived and incompetent.
Full Case Text
Judgment text and source record
22 paragraphs
Madison Insurance Company Ltd v Ndonye (Miscellaneous Civil Application E005 of 2021) [2022] KEHC 11401 (KLR) (9 June 2022) (Ruling)
Neutral citation: [2022] KEHC 11401 (KLR)
Republic of Kenya
In the High Court at Makueni
Miscellaneous Civil Application E005 of 2021
GMA Dulu, J
June 9, 2022
Between
Madison Insurance Company Ltd
Applicant
and
Eita Muthambi Ndonye
Respondent
Ruling
1. In response to an Originating Summons filed by Madison Insurance Company Ltd dated January 22, 2021 and filed in on February 3, 2021, the respondent filed a replying affidavit as well a Notice of Preliminary Objection. This ruling relates to the preliminary objection.
2. The said preliminary objection dated April 21, 2021 and filed through counsel M/s Musembi Ndolo & Company for the respondent Eita Muthambi Ndonye, is in the following terms –1)The court lacks jurisdiction.2)The intended suit is premature, incompetent, bad in law and rather an abuse of court process.
3. The preliminary object was by consent of counsel canvassed by way of filing written submissions. I note however, that only submissions by Musembi Ndolo advocate for the respondent were filed. The applicant’s counsel Mwangangi Nzisa & Associates did not file any submissions.
4. The thrust of the submissions by counsel for the respondent is that, in terms of section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act (cap 405) this court lacks jurisdiction to extend time within which to file declaratory suit.
5. Counsel has relied on a High Court decision, that is APA Insurance Company Ltd vs Vincent Nthuku (2018) eKLR wherein G Odunga J stated inter alia, that –“21. It is clear that section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act does not provide for extension of the period for commencement of proceedings seeking declaratory orders.”
6. Considering the reasoning of the above persuasive court decision, and bearing in mind that prayer 1 of the Originating Summons, herein seeks an extension of time to file a declaratory suit, and since the applicant has not filed any written submissions, I uphold the preliminary objection herein and strike out the Originating Summons, as it is misconceived and cannot stand.
7. Consequently, and for the above reasons, I uphold the preliminary objection filed, and, strike out the Originating Summons herein, with costs to the respondent.
Delivered, signed & dated this 9th day of June, 2022, in open court at Makueni...............................GEORGE DULUJUDGE