https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10320

Mugo & another v Britam General Insurance Company (K) Ltd (Civil Appeal E001 of 2024) [2026] KEHC 10320 (KLR) (8 July 2026) (Ruling) Neutral citation: [2026] KEHC 10320 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E001 of 2024 MW Mutuku, J July 8, 2026 Between David Mwaniki Mugo 1st Appellant Mary Njeri Kagori 2nd Appellant and Britam General Insurance Company (K) Ltd Respondent (Being an appeal from against the Ruling and Order of Honourable Brenda Ofisi on 8th December 2023 in Limuru Chief Magistrate’s Civil Case No. 167 of 2022) Ruling 1.Before this court is an appeal against the Ruling and Orders delivered on 8th December 2023. The appellant filed a memorandum of appeal dated 1st January 2024 seeking the following orders:a)That the court sets aside and reverses the Ruling dated 8th December by the trial magistrate.ii)That the court grants the appellant an order reinstating the suit.b)That the appellant be awarded the costs of this appeal. 2.The memorandum is anchored on the following grounds:-i)That the learned magistrate erred in law and fact by dismissing the case on a point of law in her ruling dated 8th December 2023. ii) That the learned magistrate failed to exercise her discretion judicially in granting the respondent Preliminary Objection and dismissing the appellant’s case.iii)That the learned magistrate erred in law and fact by relying on precedents which are not suitable for the facts of the case.iv)That the Learned Trial Magistrate erred in law and fact by confusing the status of the appellants insured.v)That the Learned magistrate erred in fact and law by failing to appreciate the arguments tendered by the appellants to the effect that the claim by the appellants was based on breach of a contract.vi)That the Learned Trial Magistrate erred in law and fact by failing to appreciate the weight of legal issues raised by the appellant in their claim.vii)That the Learned Trial Magistrate applied the wrong principles of law dismissing the case without considering (sic).viii)That the Learned Trial Magistrate erred in law and fact by failing to consider the existing legal precedent governing cases between the insured and the insurer.ix)That the Learned Trial Magistrate failed to provide legal grounding for the decision of the court. Back ground. 3.The impugned ruling arose as a result of a Preliminary Objection raised by the respondents herein. The Preliminary Objection dated 12th May 2022 was to the effect that the appellants case being of claim material damage claim, the court does not have jurisdiction as there are no provisions under the Insurance( Motor Vehicles Third Party Risks Act, Cap 405, Laws of Kenya for the appellants to proceed against the insurance company. 4.The Preliminary Objection was canvassed by way of written submissions, and a ruling delivered in favour of the respondent, which in effect struck out the appellant’s suit with no orders as to costs. 5.In her ruling, while allowing the Preliminary Objection, the learned trial Magistrate noted that the statutory duty of an Insurer is to satisfy judgment in respect of any such liability as requited o be covered by a policy under Section 5(b) of the Insurance Motor vehicle Third Party Risks Act Cap 405 Laws of Kenya. She went on to state that the plaintiff herein had sued the insurer vide a declaratory suit yet they had already made payments to offset the decretal amount in the primary suit. 6.The Learned trial magistrate went on to find that this is a case of breach of contract. 7.The appeal instant was canvassed by way submissions, which I have considered. 8.This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions [see Peters -vs- Sunday Post Limited [1958] E.A 424] 9.In SELLE and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A 123 it was stated as follows:-“…………………….this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 10.Likewise in Gitobu Imyanyara & 2 Others -vs- Attorney General [2016] eKLR, the court of Appeal stated thus;-“An appeal to this court is by way of a 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.” 11.Therefore the appropriate standard of review in cases of appeal can be summarized in the following three principles:-(1)On first appeal the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions.(2)In reconsidering and re-evaluating the evidence of the first appeal court must bear in mind and give due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.(3)It is not open to the first appellate court to review the findings of a trial court simply on the basis that it would have reached a different conclusion had it been hearing the matter for the first time. Evidence. 12.The appellant instituted the primary suit against the respondent vide a plaint dated 5th April 2022. In paragraph 5 of the plaint, the appellant averred that the respondent issued to the plaintiff an Insurance cover for third Party Liability caused or arising out of the use of Motor Vehicle KBY 962X, which the plaintiff was the registered owner. That the respondents delivered a certificate of Insurance in respect of the said policy. 13.During the pendency of the cover, the appellant’s motor vehicle was involved in a Road Traffic Accident, with another motor vehicle, and the appellants found to blame for the accident. Subsequently, judgment was entered against the respondents vide Limuru Chief Magistrate’s suit Number 218 of 2021. 14.The appellants claim against the respondents in his plaint dated 5th April 2022 is for a declaration that the defendant is and has at all material times been under an obligation to make payments under the aforesaid policy of Insurance in respect of the judgment in Limuru Civil Suit Number 218 of 2021. Issues for Determination. 15.Upon a careful consideration of the Preliminary objection submissions and list of authorities filed by the parties, the following issue arises for determination: Whether the Respondents’ Notice of Preliminary Objection dated 12th May 2022, is merited. Analysis and Findings. 16.In determining whether the Preliminary Objection dated 12th May 2022 meets the established legal threshold, it is crucial to first appreciate the definition and what constitutes of a Preliminary Objection in law. 17.In resolving this issue, I am guided by the well-established principles enunciated by the Court of Appeal in the seminal case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. In this decision, the court succinctly held that:“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 18.Additionally, in the decision of the Justice prof J.B. Ojwang J (as he then was) he succinctly addressed the issue of preliminary objection in the case of Oraro v Mbaja [2005] eKLR:““... It is identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.” 19.From the foregoing, it is evident that for a Preliminary Objection to be sustained, it must satisfy the following strict legal criteria:-i.It must raise a pure point of law;ii.It must be premised on the assumption that all facts pleaded by the opposing party are correct;iii.It cannot be sustained if the determination of facts is required or if the matter. 20.In the instant matter, The Preliminary Objection was to the effect that the appellants case being on claim material damage claim, the court does not have jurisdiction as there are no provisions under the Insurance( Motor Vehicles Third Party Risks Act, Cap 405, Laws of Kenya for the plaintiffs to proceed against the insurance company. 21.In delivering her ruling, the learned trail magistrate correctly appreciated the fact that appellant herein had sued the insurer vide a declaratory suit yet they had already made payments to offset the decretal amount in the primary suit. She further went on to find that this is a case of breach of contract. 22.In Omondi -vs- National Bank of Kenya Ltd & Others {2001} KLR 579; [2001] 1 EA 177, it was observed that a Court in determining a Preliminary Objection can look the pleadings and other relevant documents, but it must abide by the principle that it must raise pure points of law. It was held: -“…In determining (Preliminary Objections) the Court is perfectly at liberty to look at the pleadings and other relevant matter in its records and it is not necessary to file affidavit evidence on those matters…What is forbidden is for counsel to take, and the Court to purport to determine, a point of preliminary objection on contested facts or in the exercise of judicial discretion and therefore the contention that the suit is an abuse of the process of the Court for the reason that the defendant’s costs in an earlier suit have not been paid is not a true point of preliminary objection because to stay or not to stay a suit for such reason is not done ex debito justitiae (as of right) but as a matter of judicial discretion. 23.Having considered the pleadings and the submissions filed by the parties herein, I find the Preliminary Objection raised by the Respondents, the same is not based on a pure point of law. The issues raised call for adduction of evidence. Consequently, it is imperative to emphasize that a Preliminary Objection must be anchored on a well-settled and unequivocal point of law. Its application to undisputed facts must lead to only one inevitable conclusion—that the facts presented are legally incompatible with the point of law raised. 24.In the case of Mwirigi v Judicial Service Commission & 2 others [2026] KEHC 4668 (KLR) , the court held that:- 23.A preliminary objection is not an omnibus means for summarily defeating a case brought to court but rather it is a narrow instrument for determining pure points of law that, if upheld, dispose of the matter without the need for fact-finding. The Supreme Court restated the Mukisa Biscuit principle in Joho & another v Shahbal & 2 others (Petition 10 of 2013) [2014] KESC 34 (KLR) by stating:“...a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. 25.The preliminary objection as raised by the respondent in the lower court is omnibus in nature lacks clarity. The trial magistrate seemed to appreciate in her findings that this being a case based on breach of contract, bears factual aspects calling for proof, or seeks parties to adduce evidence for its authentication and is not as such a matter of legal principle. 26.In the premises, this Court finds that the Notice of Preliminary Objection dated 16th October 2022 lacks merit and is hereby dismissed with costs. Orders.i)The appeal is hereby allowed.ii)The appellant’s suit, Limuru Chief Magistrate’s court civil case no. E167 of 2022 is reinstated for hearing.iii)The respondent shall bear the cost of this appeal DELIVERED, DATED AND SIGNED VIRTUALLY THIS 8TH DAY OF JULY, 2026.MARTHA MUTUKU.JUDGE.Ruling virtually delivered in the presence of:N/A for the Appellant.Miss Njenga, Learned Counsel for the Respondent.Mr. Kibet –Court Assistant.