Royal Hisham Kenya Limited v Sanlam General Insurance Ltd & another (Civil Appeal E057 of 2023) [2025] KECA 118 (KLR)
The bottom line
#The Court of Appeal refused to strike out an insurer's contract-interpretation suit, confirming that disputed insurance claims must be decided on evidence, not cut short at the pleadings stage.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in her conclusions as to the nature of the 1st respondent's claim and its relationship to the provisions of section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act
- 2.Whether the learned Judge erred by not appreciating the nature of the appellant's application (to strike out) and the facts of the case
Key legal issues
#Nature of the 1st respondent's claim vis-à-vis section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act
The claim, as pleaded, was for interpretation and declaration as to the nature of the insurance contract, not for repudiation or avoidance under section 10(4); the mandatory timelines and notice requirements of section 10(4) were therefore not engaged at the striking-out stage.
The Court agreed with the High Court that the parties disagreed on the nature of the dispute: the appellant argued the suit was a disguised repudiation, while the 1st respondent pleaded a contract-interpretation claim under the Law of Contract Act. The Court held the plaint did not explicitly disclose a section 10 cause of action and that determining the nature of the contract required evidence and cross-examination, making it a triable issue unsuitable for summary striking out.
Whether the appellant's striking-out application was properly constituted and whether the appeal could succeed on its procedural infirmities
The procedural infractions of the Motion (compound prayers contrary to Order 2 rule 15(2)) became immaterial once the application failed; nothing turned on them.
Since the Motion to strike out had already failed on the substantive first issue, the form in which it was presented and the propriety of its compound prayers were of no consequence to the appeal.
Standard for striking out pleadings
Striking out is a draconian jurisdiction available only in plain cases; where oral evidence is necessary, the case is not plain and pleadings should not be struck out.
Relying on the pivotal decision in Co-Operative Merchant Bank Ltd v George Fredrick Wekesa, the Court reaffirmed that a court may only strike out pleadings that disclose no semblance of a cause of action and are incurable by amendment; disputes requiring oral evidence cannot be resolved summarily.
Legal principles established
#- An insurer's suit for a declaration as to the nature or scope of an insurance contract is not necessarily a repudiation claim governed by the strict timelines and notice requirements of section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act where the plaint does not explicitly plead such a cause of action.
- Striking out a pleading is a draconian jurisdiction exercisable only in plain, obvious cases and where the pleading is incurable by amendment; where the nature of the contract is disputed, evidence must be called.
Court orders
#- 1.The appeal is dismissed with costs to the 1st respondent
- 2.The ruling and orders of the High Court of Kenya at Mombasa (Olga Sewe, J.) dated October 25, 2022 are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa HCCC No. E006 of 2021 (ruling in interlocutory appeal)
- Jurisdiction invoked
- First appellate/appellate jurisdiction of the Court of Appeal under the Court of Appeal Act and Article 164 of the Constitution (appeal against High Court interlocutory ruling)
Relief refused
#Setting aside of the High Court ruling dismissing the appellant's application to strike out the 1st respondent's plaint
The learned Judge correctly found the claim was not pinned to section 10(4) of the Act as the plaint did not disclose such a cause of action, and triable issues existed requiring evidence; striking out is a draconian remedy reserved for plain cases
Costs
The appeal is dismissed with costs to the 1st respondent (the High Court had ordered the costs of the striking-out application to be in the cause).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In our considered view, the learned Judge cannot be faulted for concluding that the 1st respondent’s suit could not be pinned down to the strictures of section 10 of the Insurance (Motor Vehicles Third Party Risks) Act when the 1st respondent did not explicitly disclose such a cause of action in the Plaint
Striking out a pleading is a draconian act, which may only be resorted to, in plain cases
we find that the appeal fails and is hereby dismissed with costs to the 1st respondent. Consequently, the ruling and orders of the High Court of Kenya at Mombasa (Olga Sewe, J.) dated October 25, 2022 is hereby upheld. Orders accordingly.
Issues in the judgment
#The judgment describes inconsistent registration numbers for the subject motor vehicle in the Originating Summons, which the Court itself noted; the correct subject vehicle is KCF 647S.
The judgment gives conflicting dates for the filing of the Originating Summons (dated 2nd June 2018, but later referred to as 'filed in July 2018').
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Royal Hisham Kenya Limited v Sanlam General Insurance Ltd & another (Civil Appeal E057 of 2023) [2025] KECA 118 (KLR)", Case Analysis (2025). Civil Appeal (Mombasa), Memorandum of Appeal dated 24th April 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/118/eng@2025-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.