[2024] KEHC 16084 (KLR)

Takaful Insurance of Africa Company Limited v Saumu (Miscellaneous Application E942 of 2024) [2024] KEHC 16084 (KLR) (Civ) (19 December 2024) (Ruling)

Neutral citation: [2024] KEHC 16084 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Miscellaneous Application E942 of 2024

TW Ouya, J

December 19, 2024

Between

Takaful Insurance Of Africa Company Limited

Applicant

and

Ijusa Mildred Saumu

Respondent

Ruling

Background 1. At the onset, Takaful Insurance of Africa Company Limited (hereafter the Applicant) filed the Notice of Motion dated 7. 10. 2024 (the Motion) which is supported by the grounds set out on its body and the facts stated in the affidavit of the Applicant’s Legal Officer Dolphine Moindi, and seeking the substantive order for leave to file a declaratory suit against Ijusa Mildred Saumu (hereafter the Respondent) after the limitation period; and a further order for a stay of proceedings in Kikuyu MCCC No. E263 of 2024, pending the hearing and determination of the intended declaratory suit.

2. The Respondent resisted the Motion by filing the notice of preliminary objection dated 14. 10. 2024 containing the following grounds:1. That there is no suit properly before this Honourable Court for determination.2. That the Miscellaneous application has been commenced through unprocedural means as it is not anchored on Section 19 of the Civil Procedure Act or Order 3 Rule 1 of the Civil Procedure Rules 2010 and thus it is fatally defective and incapable of obtaining the orders sought.3. That the Miscellaneous application is fatally defective, incompetent and bad in law and should be struck out with costs to the Respondent.4. That the Miscellaneous application offends Cap. 22 Limitation of Actions Act Section 27 as the section does not give jurisdiction to the Court to extend time for filing suits in cases involving contracts. (sic)

Submissions On The Preliminary Objection 3. When the parties attended court for hearing, directions were given for the preliminary objection to be heard first, and the parties were to file and exchange written submissions thereon. It is apparent that at the time of writing this ruling, only the Applicant had complied with the above directions. The Respondent on his part did not avail any written submissions for this court’s reference.

4. To oppose the preliminary objection, counsel for the Applicant anchored his submissions on the renowned decision in Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696 on what constitutes a preliminary objection. Counsel proceeded to submit that the preliminary objection is unmerited as the same does not contain pure points of law but raises grounds which would require further scrutiny by the court. In submitting so, counsel borrowed from the decision in David Karobia Kiiru v Charles Nderitu Gitoi & Family Bank Ltd [2018] KEELC 2240 (KLR) where the court buttressed the legal position that a preliminary objection should raise pure points of law and should not contain facts that would require further investigations by the court.

5. Counsel argued that the order seeking leave to file the declaratory suit out of time does not touch on any substantive issues neither does it seek permanent orders or a determination of the parties’ rights. That in the circumstances, the matter was properly instituted by way of a Miscellaneous Application, a position which was echoed in the case of Rono & 9 others v Kenya Forest Service & 4 others [2023] KEELC 535 (KLR) and the case of Hassan v Republic [2024] KEHC 13273 (KLR).

6. Counsel further argued that the preliminary objection is misleading to the court since it purports to argue that the Motion is seeking leave to file suit out of time and that such timelines have lapsed. Counsel submitted that on the contrary, the Motion seeks an order for leave to file a declaratory suit on the basis of an insurance policy agreement which is well within the limitation period, by dint of Section 4(1) of the Limitation of Actions Act which stipulates that claims arising out of a contract must be filed within six (6) years. That in any event, the Respondent has not demonstrated the manner in which he stands to suffer prejudice if the orders sought are granted. On those grounds, counsel urged this court to dismiss the Respondent’s preliminary objection with costs.

Analysis And Determination 7. The court has considered the grounds captured in the preliminary objection and the submissions on record plus authorities cited therein.

8. To begin with, the court in the renowned case of Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696 earlier cited, defined what constitutes a preliminary objection in the manner hereunder:“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 in any fact that has to be ascertained or if what is sought is the exercise of judicial discretion.”

9. The above definition was advanced by the Supreme Court in Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR when it rendered itself thus:“It is quite clear that a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law.”

10. Upon study of the grounds raised in the preliminary objection, the court observed that the same rides on two (2) key issues; the first being whether the matter is competently before this court, the same having been commenced by way of a Miscellaneous Application.

11. On the one part, the Respondent argued that the present matter as instituted by the Applicant does not conform to Section 19 of the Civil Procedure Act (CPA) and Order 3, Rule 1 of the Civil Procedure Rules (CPR). On the other part, it is the Applicant’s argument that the matter was properly instituted, since the same does not seek any permanent orders or a determination of the rights of the parties herein.

12. Section 19 (supra) provides as follows:Every suit shall be instituted in such manner as may be prescribed by rules.

13. Order 3, Rule 1 (supra) on its part generally expresses that suits shall be instituted by way of a plaint or in any other manner as may be prescribed.

14. Upon reviewing the record, it is not disputed that the Applicant herein commenced the proceedings presently before the court by way of the instant Miscellaneous Application through the instant Motion. From a further review of the record and more particularly the Motion referenced hereinabove, it is apparent that the orders being sought are for leave to file a declaratory suit and for a stay of proceedings.

15. From a consideration of the foregoing coupled with the interpretation of Section 19 (supra), it follows that where a party desires to move the court seeking an order or orders for which the CPR or any other relevant statutes do not expressly provide a procedure, such party may approach the court by way of a miscellaneous application, as is the case here.

16. Furthermore, it is apparent from a glance at the Motion that the orders sought therein are not intended to enforce or any rights as against any other party or person. It is equally apparent that the Applicant is not instituting a civil action per se, at this juncture. Consequently, the current proceedings; in the court’s view; are miscellaneous proceedings distinct from what would constitute a ‘suit’ within the ordinary meaning of the CPA and other relevant statutes or authorities. In reasoning so, the court is persuaded by the case of Rono & 9 others v Kenya Forest Service & 4 others [2023] KEELC 535 (KLR) where the following was held:“My understanding is that when a person wishes to move the court seeking an order (s) that the civil procedure rules or any other statutes do not expressly provide a procedure for, then that person would have to approach the court by way of a miscellaneous application. In most instances, such applications are not intended to enforce rights as against other parties.In the case of Joseph Kibowen Chemjor Vs William C Kisera [2013] eKLR, the Learned Judge observed as follows;There are times when all that a person wants is an order of court where the rights of the parties are not going to be determined. There is no “action” being enforced or being tried. In many such instances, it is the discretion of the court being sought or a procedural issue sought to be endorsed. The court in such a case is not being asked to determine any rights of the parties. Now, the Civil Procedure Rules do not specifically provide for the procedure to be followed where there is no “action”. In such instances, I think it is permissible for such person to file a miscellaneous application because the court is not asked to determine any issues between the parties. (emphasis is mine). This is common and permissible where all that the party wants is a mere order from the court which does not settle any rights or obligations of the parties. This for instance can cover applications for leave to institute suit out of time or for leave to commence judicial review proceedings.”

17. In view of all the foregoing factors, the court sees no reason to find that the present Miscellaneous Application is incompetent. As such, grounds 1), 2) and 3) of the preliminary objection automatically fail.

18. The second preliminary issue which was raised in ground 4) of the preliminary objection, touches on whether the Motion offends Section 27 of the Limitation of Actions Act, Cap. 22 Laws of Kenya (the Act) and which would determine whether this court has jurisdiction to extend the time required for filing claims arising out of a contractual relationship.

19. The Act sets out the respective timelines for instituting various suits or claims. Section 4(1) in particular, sets out the statutory timelines for bringing claims relating to contracts thus:“The following actions may not be brought after the end of six years from the date on which the cause of action accrued—a.actions founded on contract;”

20. Pursuant to the afore-cited provisions, actions founded on contract may not be brought after the end of six (6) years from the date when the cause of action accrued.

21. Section 27 of the Act upon which ground 4) of the preliminary objection is anchored, stipulates that:Section 4 (2) does not afford a defence to an action founded on tort where—1. (a)the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and(b)the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and(d)the requirements of subsection (2) are fulfilled in relation to the cause of action.2. ……………………3. …………………..

22. Turning to the record, the court observed that the Applicant annexed a draft copy of the plaint to be filed in the intended declaratory suit. Without delving into the merits thereof at this stage, it is apparent that the Applicant will be seeking a declaratory order to the effect that it is not liable and duty bound to settle any claims on behalf of the Respondent and arising out of an accident which occurred on 2. 01. 2022 pursuant to the Policy of Insurance No. P/HOB/2019/101/119762 (the insurance policy) for the period between 07. 01. 2021 and 6. 01. 2022 and in respect of the motor vehicle registration number KBP 134P.

23. From a consideration of the above draft pleadings as well as the material on record, it is apparent that the intended claim derives from a contractual relationship subsisting between the parties herein at all material times, by way of the insurance policy. Be that as it may, the Applicant refutes the objection raised by the Respondent implying that the intended declaratory suit is time barred, with the Applicant clarifying that the second order sought in the Motion is purely for leave to file the intended declaratory suit; and not an order seeking leave to file the suit out of time.

24. Upon reviewing the record but without delving into the merits of the dispute, the court is of the view that while the order for leave sought in the Motion appears to be ambiguously worded, it is apparent that upon taking into account the timelines during which the cause of action is said to have arisen, there is no credible material to indicate that the order for leave sought in the Motion has been overtaken by the statutory timelines for filing a claim arising out of a contract, in order to render the Motion statute barred.

25. It therefore follows that the objection being raised that the claim is statute barred and offends Section 27 of the Act, cannot be sustained. As a result, ground 4) of the preliminary objection equally fails.

Disposition 26. The upshot therefore is that the preliminary objection dated 14. 10. 2024 cannot succeed and the same is hereby dismissed, with costs to the Applicant.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19th DAY OF DECEMBER, 2024ROA 14 days.HON. T. W. OUYAJUDGEFor Applicant …………….WaguiFor Respondent ….………IrunguCourt Assistant: Martin