Kikuvi v Kenyatta National Hospital & another

d. Any other relief that the court may deem t to grant. 4. The suit was transferred to this court on 19th March 2024 and the respondents led their respective defences denying liability. On 27th January 2026, the 2nd Respondent led the instant Notice of Motion seeking to strike out the entire claim against it on the grounds that it discloses no reasonable cause of action against the 2nd Respondent. 5. The grounds of the Application as set out in the Notice of Motion dated 27th January 2026 can be summarized as follows: - 6. 7. a. The 2nd Respondent entered into a contractual relationship with the 1st Respondent through a WIBA Policy number 010/111/000015/2019/04. b. Under the WIBA Policy, the 2nd Respondent would indemnify the 1st Respondent up to the limit of Kshs. 5,000,000 per employee for any death, injury or disease occurring at work. c. The 2nd Respondent has indemnied the 1st Respondent to the full amount of Kshs. 5,000,000/- agreed upon under the WIBA policy and the Claimant admits receipt of the Kshs. 5,000,000/- in paragraph 14 of the Plainti. d. The 1st Respondent does not deny that the 2nd Respondent indemnied it to the full amount of Kshs. 5,000,000/- as agreed in the WIBA Policy. e. The 1st Respondent in paragraph 4 of the 1st Respondent's Statement of Defence, admits that the WIBA Insurance Cover it took out with the 2nd Respondent was subject to the contractual limit. f. The 1st Respondent has no claim against the 2nd Respondent, as evidenced by the 1st Respondent's Statement of Defence. g. The 2nd Respondent has fully discharged its contractual obligations under the WIBA Policy and no other claim is pending against it. h. Accordingly, there is no reasonable cause of action against the 2nd Respondent in the case. The Claimant through his Replying Adavit contended that:a. The Respondent did not issue a policy that is compliant with the WIBA Act. b. The 2nd Defendant failed to issue an insurance policy in line with the WIBA Act. c. The decision to cap the amount under the contract is illegal and therefore it is bound to pay the whole compensation of Kshs. 27,394,272/- and not just the Kshs. 5,000,000/-. The 1st respondent did not participate in the hearing of the 2nd respondent’s motion. Analysis 8. Having considered the instant Notice of Motion, the Replying Adavit, the submissions, and the Amended Statement of Claim, the main issue for determination is whether the Amended Statement of Claim dated 27th January 2026 discloses any reasonable cause of action against the 2nd Respondent/ Applicant. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2776/eng@2026-10-08 2

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9. Striking out of suits by Court is governed by the provisions of Order 2 Rule 15 of the Civil Procedure Rules, 2010. Specically, Rule 15(1)(a) & (2) provides as follows: “ (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that: (a) (2) 10. it discloses no reasonable cause of action or defence in law; or No evidence shall be admissible on an application under sub rule (1)(a) but the application shall state concisely the grounds on which it is made." Lord Diplock, in Letang vs. Cooper [1964] 2 All ER 929 at 934 rendered the following denition:“ A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person." 11. A reasonable cause of action was dened in the Court of Appeal in DT Dobie & Company (Kenya) Limited v Muchina & another (Civil Appeal 37 of 1978) [1980] KECA 3 (KLR) (18 March 1980) (Judgment) as follows: “ I think a reasonable cause of action means a cause of action with some chance of success when (as required by paragraph (2) of the rule) only the allegations in the plaint are considered." per Lord Pearson in Drummond-Jackson V.B.M.A. (1970) 1 W.L.R. 688 at p. 696. 12. A reasonable cause of action would therefore arise against a respondent where the claimant establishes a factual situation which entitles them to a remedy against the said respondent, and only when the statement of claim is considered. It follows that, where no remedy has been sought or can lie against a party in a suit, a reasonable cause of action cannot lie against that party and he/she ought to be struck out of the said suit. 13. The 2nd respondent contends that the Amended Statement of Claim discloses no reasonable cause of action against it for the following reasons: a. Liability to compensate an employee under the WIBA Act lies on the employer. b. The Applicant/Respondent fully indemnied the 1st Respondent as agreed under the Contract of Insurance. c. There is no contractual or any other relationship between the Claimant and the 2nd Respondent/Applicant that can entitle the Claimant to bring any claim against the 2nd Respondent/Applicant. d. There is no other claim against the 2nd Respondent/Applicant from the 1st Respondent. 14. The Claimant was of a contrary view and maintained that the 2nd respondent is bound to pay full compensation equivalent to the deceased’s earnings for 8 years as assessed by the Director under WIBA. 15. Having considered the facts of the case, it is clear that the Claimant was an employee of the 1st Respondent and not the 2nd respondent. Section 10 of the Work Injury Benefits Act, provides as follows: “ 10. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2776/eng@2026-10-08 3

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16. (1) An employee who is involved in an accident resulting in the employee's disablement or death is subject to the provisions of this Act, and entitled to the benets provided for under this Act. (2) An employer is liable to pay compensation in accordance with the provisions of this Act to an employee injured while at work.” The above provision is clear that the employer is liable to compensate employees in the event of injury while in the course of employment. In Jaramogi Oginga Odinga University & another v Corporate Insurance Company Limited (Cause E049 of 2025) [2025] KEELRC 2970 (KLR) (30 October 2025) (Judgment) the court stated as follows while striking out an insurer from similar proceedings: “ The foregoing provisions of WIBA leave little doubt as to where liability to compensate an employee for injuries sustained in the course of employment lies." 17. In the instant case, the 2nd respondent was not the Claimant's employer, and as such not liable to compensate the deceased’s estate for his work-related death, and no remedy can be sought or enforced against it based on provisions of Section 10 of the WIBA Act. Consequently, I nd that the Amended Statement of Claim dated 27th January 2026 does not disclose any reasonable cause of action against the 2nd respondent. 18. The claimant urged the court to consider section 7 of the WIBA which imposes a mandatory statutory duty on every employer to take out an insurance policy in respect of any liability that the employer may incur under the Act to any of his employees. However, that obligation does not in any way transfer liability from the employer to the insurer, but it only eases the burden on the part of the employer to the extent agreed in the insurance contract between the employer and the insurer. 19. Besides, the terms of the insurance contract between the respondents herein is not the dispute before this court and therefore, I will not make any comments on the extent of the 2nd respondent’s liability to the 1st respondent under the said contract, as case the matter may nd its way to another forum for adjudication. Conclusion 20. I have found that the Amended Statement of Claim does not disclose a reasonable cause of action against the 2nd Respondent and consequently, I strike out the entire claim against the 2nd Respondent with costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 8TH DAY OF OCTOBER, 2026. ONESMUS MAKAU JUDGE Appearance: Macharia for Claimant Gitari for 1st Respondent Kendi for 2nd Respondent https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2776/eng@2026-10-08 4

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