https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6861

Mua Insurance Company Kenya Limited v Jalkarim Holdings Limited (Commercial Case E001 of 2026) [2026] KEHC 6861 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEHC 6861 (KLR) Republic of Kenya In the High Court at Makueni Commercial Case E001 of 2026 JN Onyiego, J May 19, 2026 Between Mua Insurance Company Kenya Limited Plaintiff and Jalkarim Holdings Limited Defendant Ruling 1.Via a Notice of Motion dated 13-4-2026 brought pursuant to Sections 1 A ,1 B, 3 and 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules, the applicant seeks leave to file a declaratory suit out of time and that the court deems the plaintiff’s declaratory suit as properly filed. 2.The application is supported by the grounds set out on the face of it and further amplified by the content contained in the affidavit in support sworn by Joseph Ngigi Advocate who averred that the applicant was served with plaints in the primary suit on 20-1-2026 and duly entered appearance on behalf of the insured/respondent herein. That he subsequently filed defence on behalf of the respondent on 21-2-2025. 3.He deposed that, at the time of entering appearance, the applicant/plaintiff was not aware of any breach of the terms of the policy on the part of the insured/respondent to the effect that the subject motor vehicle was at the material time carrying unauthorized passengers including the plaintiffs in the lower court case involving one Dickson Ngeno and Mathew Kioko Mutiso contrary to the terms of the policy. That the material non-disclosure was not known to the applicants until 5th may 2025 when they promptly moved the court by filing a declaratory suit well after 3 months as contemplated under Section 10(4) of the Insurance Act (3rd party mv risks). 4.During the hearing, counsel for the applicant sought to rely on the content of the application and the affidavit in support. 5.The only issue for determination is whether the application is merited. 6.The crux of the application is enlargement of time to file a declaratory suit outside time. The underpinning provision in this case is Section 10(4) of the Insurance (Motor vehicle third party risks) Act which prescribes time within which a declaratory suit can be filed. That section provides;“No sum shall be payable by an insurer under the foregoing provisions of this section if in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy he is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or, if he has avoided the policy on that ground, that he was entitled so to do apart from any provision contained in it:Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgment obtained in proceedings commenced before the commencement of that action, unless before or within fourteen days after the commencement of that action he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the non-disclosure or false representation on which he proposes to rely, and any person to whom notice of such action is so given shall be entitled, if he thinks fit, to be made a party thereto. 7.In the instant case, the applicant alleged that they were not made aware at the commencement or during the primary suit proceedings that the claimants had ferried unauthorized passengers. They argued that they came to discover after three months had lapsed. That the material non-disclosure was beyond their control. Indeed, this aspect was not challenged as the application was not opposed. To that extent, am persuaded that there is sufficient ground to enlarge time. 8.In Muchai v Xplico Insurance Co. Ltd (Civil Appeal E020 of 2019) [2023] KEHC 24164 (KLR) (25 October 2023) (Judgment) the court had this to say regarding extension of time to file a declaratory suit out of time;29.“I have perused and considered authorities cited; however, in the instant case, the respondent has indicated that they were not aware of the existence of primary suits until when they were served with judgments. They have also indicated that the vehicle was in breach of the insurance contract and were therefore entitled to repudiate the contract but were kept in the dark until when they were served with judgment; that the primary suits proceeded undefended.30.In my view the trial magistrate rightfully, exercised discretion by granted extension of time to the respondent to file declaratory suits. Further the appellant in my view will not suffer any prejudice as he has opportunity to defend the declaratory suits. From the foregoing, I see no merit in the appeal herein and proceed to dismiss.” 9.Considering the above case law and the grounds cited for the delay for 14 days which is not inordinate, am inclined to hold and find that the application is merited and the same is allowed as prayed. The draft plaint is deemed as duly filed and the same shall be served within 14 days. Mention on 29/6/2026 for further directions. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MAY 2026………………..J. N. ONYIEGOJUDGE