https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8978

Njenga & another (Suing as the Legal Representatives of the Estate of the Late Isaac Njenga Mbote - Deceased) v APA Insurance Co. Ltd (Civil Appeal E072 of 2025) [2026] KEHC 8978 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8978 (KLR) Republic of Kenya In the High Court at Naivasha Civil Appeal E072 of 2025 CW Githua, J June 19, 2026 Between Alice Njoki Njenga 1st Appellant Joseph Mbote Njenga 2nd Appellant Suing as the Legal Representatives of the Estate of the Late Isaac Njenga Mbote - Deceased and APA Insurance Co. Ltd Respondent (Being an appeal against the Judgement of Hon. W. O. Rading (PM) dated 26th June 2025 in Naivasha Chief Magistrate’s Court Civil Case No. E506 of 2023) Judgment 1.The genesis of this appeal is a declaratory suit instituted in the lower court by the appellants, Alice Njoki Njenga and Joseph Mbote Njenga against the respondent, APA Insurance Company Limited seeking a declaration that the respondent was liable to satisfy the decretal sum amounting to Kshs. 3,706,206 awarded in their favour by the trial court against the respondent’s insured, Alice Waithira Gichuhi & John Mwangi in Naivasha CMCC No. 272 of 2021 (the primary suit). 2.After a full trial, the learned trial mmagistrate delivered his judgement on 26th June 2025 and dismissed the appellants suit on grounds that it was not properly before the court as the appellants had filed a previous declaratory suit against the respondent being Naivasha CMCC No. E591 of 2021 which had been dismissed for non- attendance. 3.The appellants were aggrieved by the trial court’s decision. They proffered this appeal vide a memorandum of appeal dated 24th July 2025. They implored this court to set aside the trial court’s decision and to issue an order declaring that the respondent was bound to settle the decretal sum in the primary suit as well as the costs and interest in CMCC E506 of 2023.In the alternative, the appellants asked the Court to remit the declaratory suit to the Chief Magistrate’s Court for hearing and determination by a different Magistrate other than Hon. W. O. Rading (SRM). 4.In support of their appeal, the appellants relied on nine (9) grounds. In summary, they alleged that the learned trial magistrate misdirected himself by dismissing the declaratory suit on grounds that it was not properly before the court. They also claimed that the learned trial magistrate erred in fact and law by: finding that the appellant’s previous suit was dismissed under Order 12 Rule 3 (2) of the Civil Procedure Rules 2010 (the Rules) and that they did not have a remedy of instituting a fresh suit. 5.Further, the appellants faulted the trial court for failing to appreciate the import of Article 50 and Article 48 of the Constitution of Kenya 2010 which guarantees to all persons the right to a fair hearing and access to justice which the trial court allegedly violated by dismissing the suit as well as Article 159 (2) (d) which enjoins courts to dispense substantive as opposed to procedural justice. According to the appellants, the learned trial magistrate failed to determine the suit on its merits and instead based his decision on issues not raised by the parties. 6.The appeal was prosecuted by way of written submissions which both parties duly filed. The appellants filed their written submissions dated 8th January 2026 through their advocates on record Ms. Kiamah Kibathi & Co. Advocates LLP, while those of the respondent dated 27th January 2026 were filed through their advocates Ms. Ochieng’ K & Associates Advocates. 7.Briefly, the appellants in their submissions re-iterated their grounds of appeal and relying on the Court of Appeal decision in Kenya Commercial Bank Ltd V Benjoh Amalgamated Ltd [2017] KECA 98 (KLR), they emphasized that the doctrine of res judicata was inapplicable to their suit as the previous declaratory suit had not been determined on merit but was dismissed for non- attendance by their counsel; that in dismissing the suit, the learned trial magistrate elevated procedure over substance contrary to the provisions of Article 159 (2) (d) of the Constitution. 8.The appellants further argued that the trial court wrongly interpreted Order 12 Rule 6 (2) of the Rules which provides that where a suit is dismissed under Order 12 of the Rules, the plaintiff may institute a fresh suit subject to the law of limitation; that the declaratory suit was therefore filed in accordance with the law and should have been heard on its merits as the use of the word “May” in Order 12 Rule 6(2) denoted discretion and preserved a party’s right to either seek reinstatement of the dismissed suit or file a fresh suit. 9.Additionally, the appellants contended that the trial court’s failure to determine the issues before it on merit assisted the respondent to avoid liability to satisfy the decree thereby unjustly enriching the respondent to their detriment as innocent decree holders; that having served the respondent with a statutory notice as required by the law, the respondent was liable to satisfy the decretal sum in the primary suit. 10.The respondent on its part argued that the initial declaratory suit was dismissed on 12th October 2022 for non-attendance; that the appellants proceeded to institute a fresh suit being Naivasha CMCC No. E506 of 2023 in contravention of the provisions of Order 12 Rule 6 (2) of the Rules; that the only remedy that was available to the appellants was to seek reinstatement of the dismissed suit and in the circumstances, the impugned suit was properly dismissed for being res judicata. 11.Further, the respondent submitted that even if this court were to find that the declaratory suit was not properly dismissed, the suit was in any event a non-starter as the appellants failed to serve it with a statutory notice within the timelines stipulated under Section 10 (2) of the Insurance (Motor Vehicle Third Party Risks) Act. 12.It was the respondent’s case that the appellants served it with a statutory notice about twenty-three (23) days after filing of the primary suit which contravened Section 10 (2) of the Insurance (Motor Vehicle Third Party Risks) Act which required service of a statutory notice either before or within 14 days of commencement of the primary suit; that therefore, the respondent was not liable to settle the decretal sum. Reliance for this proposition was placed on the case of Kenya Alliance Insurance Co. Ltd vs Thomas Ochieng Apopo [2020 ] KEHC 3109 (KLR). 13.This being a first appeal to the High Court, it is an appeal on both facts and the law. The duty of the first appellate court is now very well settled. It has been articulated in a plethora of authorities and to summarize, it enjoins the court to thoroughly re-evaluate the evidence presented before the trial court to arrive at its own independent conclusions regarding the soundness or otherwise of the impugned decision. See: Selle & Another V Associated Motor Boat Company Ltd [1968] EA 123; Sumarla & Another V Allied Industrial Ltd (2007) 2 KLRl; among others. 14.I have carefully considered the grounds of appeal and the rival written submissions filed on behalf of the parties. I have also considered the evidence on record and the judgement of the learned trial mmagistrate. 15.From a perusal of the record and the parties submissions, the undisputed facts are that the appellants, after obtaining judgment in their favour in the primary suit filed Naivasha CMCC No. E591 of 2021 against the respondent seeking a declaration that the respondent was liable to settle the decretal sum arising from the primary suit; the suit was however dismissed on 12th October 2022 for non-attendance. The appellants subsequently filed a second declaratory suit seeking similar orders which is the subject of this appeal. 16.The trial court’s record shows that the suit proceeded to full hearing. Contrary to the appellant’s assertions, the record shows that the learned trial magistrate did not consider whether or not the second suit was res judicata and did not make a conclusive finding that the suit was in fact res judicata. At paragraph 3 of page 5 of the judgment, the trial Magistrate stated as follows; -“ 3.Notwithstanding the conflicting positions taken by the superior courts, I am inclined to pose the question as to whether this declaratory suit is properly before this court in the first place?” 17.After posing the above question, the learned trial magistrate proceeded to consider the circumstances in which the previous suit was dismissed. He made a finding that the previous suit was dismissed under Order 12 Rule 3 (2) and relying on the persuasive authority of Peter Mumira vs Attorney General Constitutional Petition E007 of 2020, he concluded that the appellants remedy was not to institute a fresh suit but to seek reinstatement of the dismissed suit. Based on this finding, the learned trial magistrate held that the suit was not properly him and proceeded to dismiss it with an order that each party bears its own costs. 18.In view of the foregoing, the question before this Court is whether the learned trial Magistrate erred when he dismissed the appellants suit for the reasons summarised above. 19.The law applicable to hearing of suits and consequences of non-attendance is set out in Order 12 of the Civil Procedure Rules. Order 12 Rule 1 deals with a scenario where neither party attends the court. It states that : -“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, neither party attends, the court may dismiss the suit.” 20.Order 12 Rule 3 deals with what happens if only the defendant attends the court. It provides that : -“1)1) If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.(2)If the defendant admits any part of the claim, the court shall give judgment against the defendant upon such admission and shall dismiss the suit so far as it relates to the remainder except for good cause to be recorded by the court.(3)If the defendant has counterclaimed, he may prove his counterclaim so far as the burden of proof lies on him.” 21.Order 12 Rule 6 deals with the effect of dismissal of suits and is in the following terms:(1)1) Subject to subrule (2) and to any law of limitation of actions, where a suit is dismissed under this Order the plaintiff may bring a fresh suit or may apply to the court to reinstate the suit.(2)When a suit has been dismissed under rule 3 no fresh suit may be brought in respect of the same cause of action. [Emphasis Added] 22.Order 12 Rule 7 makes provision for setting aside judgment or dismissal orders and provides as follows: -“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.” 23.In my considered view, the learned trial magistrate’s finding that the first declaratory suit was dismissed for non-attendance under Order 12 Rule 3 was erroneous since it was contrary to the evidence on record. Whereas it is not disputed that the suit was dismissed for non-attendance, a copy of the order of the trial court in Naivasha CMCC No. E591 of 2021 issued on 19th October 2022 which was part of the evidence adduced by the respondent in the suit clearly shows that the suit was dismissed for non-attendance by both parties and not for non attendance by the plaintiff. 24.It is important to make a distinction between dismissal of suits under Order 12 Rule 1 and under Order 12 Rule 3 because different remedies accrue depending on the Rule under which the suit was dismissed. Order 12 Rule 6 makes it clear that if a suit is dismissed under Order 12 Rule 1, the plaintiff has several remedies which includes filing a fresh suit subject to the law of limitation. However, if a suit is dismissed under Order 12 Rule 3, the remedies available are limited to setting aside and reinstatement of the dismissed suit. Whereas a plaintiff whose suit is dismissed under Order 12 Rule 3 would obviously have an additional remedy of filing an appeal against the dismissal order, Order 12 Rule 6 (2) specifically bars the plaintiff from filing a fresh suit. 25.I agree with the interpretation given to Order 12 Rule 6 in Josephine Lunde Matheka v Gladys Muli [2018] KEHC 2130 (KLR) where the Court stated as follows;“ 19.That provision was formerly Order XVI rule 6 of the Civil Procedure Rules. The Court of Appeal in Murtaza Hussein Bandali T/A Shimoni Enterprises vs. P. A. Wills [1991] KLR 469; [1988-92] held that there is inherent power to restore a case for hearing after it has been dismissed under the said provision. Whereas the general rule in those circumstances is provided in Order 12 Rule 6( 1) that the plaintiff in a suit dismissed under the Order, may, subject to the law of limitation, bring a fresh suit, where however the suit is dismissed under rule 3 thereof, it is expressly provided that no fresh suit may be brought in respect of the same cause of action.” 26.As stated earlier, there was evidence before the trial court that the initial declaratory suit had been dismissed under Order 12 Rule 1 which evidence appears to have escaped the attention of the learned trial magistrate. Since the suit was dismissed on account of the non attendance of both parties under Order 12 Rule 1, the appellants had several options available to them which included the filing of a fresh suit. The learned trial magistrate therefore erred in dismissing the suit instead of determining it on its merits. 27.Having found as I have above, I have come to the conclusion that this appeal is merited and it is consequently allowed. The judgement of the learned trial magistrate is accordingly set aside. 28.Regarding the prayers sought by the appellants, since the learned trial Magistrate did not address his mind to the main question that was placed before him, namely, whether the respondent was liable to satisfy the decretal sum awarded to the appellants in the primary suit, as this is a matter that requires presentation of evidence, it cannot be competently handled by this court in the exercise of its appellate jurisdiction. In the premises, I order that the suit be remitted back to the Chief Magistrate’s Court at Naivasha for hearing and determination before another competent court other than the one presided over by Hon. W. O. Rading (PM). 29.Costs follow the event and are at the discretion of the court. As the appellants have succeeded in their appeal, they are awarded costs of the appeal. 30.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIVASHA THIS 19TH DAY OF JUNE 2026C. W. GITHUAJUDGEIn the Presence of :Mr. Ojanji for the appellantMs. Muguku holding brief for Mr. Ochieng for the respondentMs. Hannah Mbugua, Court Assistant