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Small ClaimsStruck OutNot stated in the judgment as provided

Gilbert v Momarch Insurance Company Ltd (Commercial Case E143 of 2026) [2026] SCC 104 (KLR)

Small Claims Court
29 April 2026
TMTHERESA N. MWANGEKA
555 words in judgment
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The bottom line

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Kenya's Small Claims Court cannot hear declaratory suits—its jurisdiction is limited by statute, so claims must fit its listed categories.

What this practically means

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Executive summary

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In this Small Claims Court ruling delivered virtually at Mombasa on 29 April 2026, Resident Magistrate and Adjudicator Hon. Theresa N. Mwangeka struck out a declaratory suit for want of jurisdiction. The court framed a single issue: whether it had jurisdiction to entertain a declaratory suit of the kind filed. Applying the locus classicus on jurisdiction, Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, the court held that jurisdiction is conferred only by the Constitution and statute. The Small Claims Court is a subordinate court established under Article 169(1)(d) of the Constitution, and section 12 of the Small Claims Court Act limits its civil jurisdiction to claims on contracts for sale and supply of goods or services, money held and received, tort liability for property loss or movable property, compensation for personal injuries, and set-off or counterclaim, with a pecuniary cap of one million shillings. Relying on Kenya Orient Insurance Limited v Otieno, the court defined a declaratory suit as one compelling a judgment debtor's insurer to settle a decree against the insured, noting the facts resembled the present case. The court concluded that declaratory suits are not contemplated under section 12 and cannot be inferred. The claim was struck out with no orders as to costs. The claimant's counsel appeared; the respondent did not.

Key legal issues

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Jurisdiction of the Small Claims Court over declaratory suits

Holding

The court lacks jurisdiction to entertain declaratory suits, which are not within the claims listed under section 12 of the Small Claims Court Act

Reasoning

Jurisdiction rests solely on the Constitution and statute. The Small Claims Court is a subordinate court established under Article 169(1)(d) whose civil claims jurisdiction is enumerated in section 12 of the Small Claims Court Act, limited to contracts, tort, personal injuries, set-off and counterclaim, with a pecuniary cap. A declaratory suit compelling an insurer to settle a decree is not among these heads, and jurisdiction cannot be inferred by implication.

p. 2

Legal principles established

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  • Jurisdiction is conferred only by the Constitution and statute
  • Declaratory suits fall outside the enumerated jurisdiction of the Small Claims Court under section 12

Court orders

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  1. 1.The claim is struck out with no orders as to costs
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, "Gilbert v Momarch Insurance Company Ltd (Commercial Case E143 of 2026) [2026] SCC 104 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/104/eng@2026-04-29

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