https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/385

Yego v Britam Insurance Company Limited (Civil Suit E100 of 2025) [2026] KEMC 385 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEMC 385 (KLR) Republic of Kenya In the Nakuru Law Courts Civil Suit E100 of 2025 PA Ndege, SPM July 29, 2026 Between Peter K Yego Plaintiff and Britam Insurance Company Limited Defendant Ruling 1.Before this court is a preliminary objection by the defendant dated 4 March 2025 that seeks the suit in question to be dismissed on the following grounds.a.That the suit herein seeks enforcement of a judgement relating to a material damage claim vide Nakuru CMCC NO 292 OF 2015 Peter K. Yego and Gilbert Githinji Gichochi vs Nasib Investment Ltd, the primary suit.b.That The suit herein does not lie within the provisions set out under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act CAP 405 as read with section 5c.That the instant suit is fatally defective and incurably bad, dead on arrival and for striking out with costs to the plaintiff. 2.The parties filed submissions on this where the Defendant argued mainly on the second ground where he argued that the Plaintiff’s claim against the Defendant was a material damage claim which did not fall within what an insurer should pay to a decree holder in a judgement against the insured who is the judgement debtor under section 10(1) as read with section 5 of the Insurance (Motor Vehicle Third Party Risks) Act. 3.The Defendant argued that claims under section 10 (1) as read with section 5 of the Act should be on physical injury or death and not on material damage. To support their case, they relied on the case of Lelei v Direct Line Assurance Company Ltd [2024] KEHC 12795 (KLR). 4.The Plaintiff vehemently opposed these, saying what the Defendant has raised did not qualify as a preliminary objection. He relied on the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696. He also relied on the case of Directline Assurance Company Limited v Mwangi [2024] KEHC 9887 (KLR) where the court gave a fourfold test for liability to accrue under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act. 5.The court is now tasked with determining whether the issues raised by the Defendant fit to be termed as Preliminary Objection. The leading precedent on preliminary objections is the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A. 696 where the court stated as follows: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 the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. 6.The section under interpretation is section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act that states:If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. 7.The same is read together with section 5 that states:Insures such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the vehicle on a road: 8.In interpreting this section, in Directline Assurance Company Limited v Mwangi [2024] KEHC 9887 (KLR), the court said as follows:I understand the import of the above provision of the law to be that for liability to accrue under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405, there is a 4-fold test to be met. Firstly, that the motor vehicle in question was insured by the Appellant; Secondly, that the Respondent has a judgment in his favour against the insured; Thirdly, that statutory notice was issued to the insurer within 30 days of filing the suit where judgment has been obtained and finally the Respondent was a person covered by the insurance policy.25. In my view, the purpose of the above provisions and the Insurance (Motor Vehicle Third Party Risks) Act Cap. 405 was to ensure that a third party who suffered injury or loss due to acts or omission on the part of an insured motor vehicle would be assured of compensation for their injury, loss or inconvenience in circumstances where the owner or driver of the insured motor vehicle has no means to settle the claim. 9.The court referred to a fourfold test which places upon the plaintiff a burden to prove that his or her claim is meritous. This would thus mean that for the defendant to claim otherwise he need to disprove the same. This renders the matter not to fit the definition of a Preliminary Objection as earlier defined. That said, the court finds the issues raised by the defendant not to be Preliminary Objections. The preliminary objection and the grounds as raised on 04/03/2025 are thus hereby dismissed with costs to the plaintiff. The suit is thus properly before this court and shall proceed to full hearing as required. DATE, SIGNED AND DELIVERED AT NAKURU ON THIS…29th DAY OF July 2026HON. ALOYCE PETER NDEGESENIOR PRINCIPAL MAGISTRATEIn the presence of;Plaintiff’s Counsel: OkiroDefendant’s Counsel: n/aPlaintiff: n/aOkiro: This matter be mentioned before the Chief Magistrate Ct 1 for reallocation/ further directions.