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Small ClaimsPartially AllowedNot stated in judgment· [2026] SCC 97 (KLR)

Weldon v Geminia Insurance Company Ltd (Civil Case E045 of 2026) [2026] SCC 97 (KLR)

Small Claims Court
16 April 2026
TMTheresa N. Mwangeka
946 words in judgment
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The bottom line

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Kenya's Small Claims Court has struck out a declaratory suit, confirming it cannot hear such claims because they aren't listed in the Small Claims Court Act.

What this practically means

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Executive summary

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This Small Claims Court ruling at Mombasa, delivered by Resident Magistrate/Adjudicator Theresa N. Mwangeka on 16 April 2026, determined a preliminary objection dated 19 March 2026 in which the Respondent challenged the Court's jurisdiction to hear a declaratory suit. The Claimant argued that although section 12(1) of the Small Claims Court Act does not expressly list declaratory suits, Rule 25(1) of the Small Claims Court Rules read with section 38(f) of the Civil Procedure Act authorises the Court to enforce its own decrees, including through declaratory suits, which are an incident of execution; the Claimant relied on Jubilee Allianz. The Respondent relied on Kenya Orient Insurance Limited v Otieno, contending the Court lacks jurisdiction over declaratory suits. The Court held that the objection was a proper preliminary objection under the Mukisa Biscuit definition as endorsed by the Supreme Court in Hassan Ali Joho, and that jurisdiction is conferred only by constitution and statute. While section 12(2) permits other civil jurisdiction conferred by written law, the Court found declaratory suits are not contemplated under section 12 and cannot be inferred, particularly since Gathaiya (following Katiba Institute) found Rule 25(1) ultra vires for incorporating the Civil Procedure Rules by reference. The preliminary objection succeeded and the claim was struck out with no orders as to costs.

Key legal issues

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01

Whether the Small Claims Court has jurisdiction over declaratory suits

Holding

The court lacks jurisdiction; declaratory suits are not within section 12 of the Small Claims Court Act and cannot be inferred from Rule 25(1) which was found ultra vires in Gathaiya

Reasoning

Section 12(1) exhaustively lists the civil claims the Court may determine, and declaratory suits are not among them. Reliance on Rule 25(1) of the Small Claims Court Rules and Section 38(f) of the Civil Procedure Act fails because the Gathaiya decision found Rule 25(1) ultra vires for incorporating the Civil Procedure Rules by reference, there being no legislation by reference.

p. 3
02

Whether the objection qualified as a proper preliminary objection

Holding

Yes; the objection on jurisdiction fits the Mukisa Biscuit definition as a point of law

Reasoning

The court adopted the Mukisa Biscuit definition endorsed by the Supreme Court in Hassan Ali Joho, holding that what is contended is the jurisdiction of the court, a pure point of law capable of disposing of the suit without trial.

p. 2

Legal principles established

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  • The Small Claims Court has no jurisdiction to entertain declaratory suits as they are not listed in section 12 of the Small Claims Court Act
  • Jurisdiction can only be conferred upon a court by the constitution and statute

Court orders

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  1. 1.The Preliminary Objection dated 19th March 2026 succeeds
  2. 2.The claim is struck out
  3. 3.No orders as to costs

Authorities

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Legislation

  • Small Claims Court ActSection 12
  • Small Claims Court Rules, 2019Rule 25(1)
  • Civil Procedure ActSection 38(f)
  • Constitution of Kenya, 2010Article 169(1)(d)

Cases cited (7)

  • Jubilee Allianz General Insurance Kenya Limited v. Benson Muhavi Butiya
    Mombasa HCCA No. E613 of 2023
  • Kenya Orient Insurance Limited v Otieno
    (Civil Appeal E166 of 2023) [2024] KEHC 7637 (KLR)
  • Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others
    Petition No. 10 of 2013, [2014] eKLR
  • Mukisa Biscuit case
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
  • Gathaiya v Attorney General & 2 others; & 176 Interested Parties
    (Petition E008 & E010 of 2024 (Consolidated)) [2026] KEHC 290 (KLR)
  • Katiba Institute & another v Attorney General & another; Independent Policing and Oversight Authority & 3 others (Interested Parties
    (Constitutional Petition 379 of 2017) [2022] KEHC 17072 (KLR)
Jurisdiction invoked
Article 169(1)(d) of the Constitution of Kenya, 2010 and Section 12 of the Small Claims Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Weldon v Geminia Insurance Company Ltd (Civil Case E045 of 2026) [2026] SCC 97 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/97/eng@2026-04-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.