Gbm (minor Suing Through His Next Friend and Guardian Rn) v Madison Insurance Company Limited

The application was heard and a ruling striking out the suit was delivered on 20th June, 2024. 6. 7. The appellant being dissatisfied by the said ruling filed this appeal dated 30th June, 2024 on the following grounds; i. That the learned Magistrate erred in law and fact by failing to consider the appellant submissions adequately or at all on the applicability of the provisions of Section 10(4) of the insurance motor vehicle third party risks Act Cap 405 Laws of Kenya. ii. That the learned Magistrate erred in law and fact in failing to be bound by the principle of stare decisis on legal questions pertaining to striking out pleadings and effects of non-compliance with the Mandatory Provisions of Section 10(4) of Insurance Motor Vehicle Third Party Risks Act Cap 405 Laws of Kenya. iii. That the learned Magistrate erred in law and fact in failing to hold that the Declaratory Orders obtained by the respondent in Naivasha HCCA No. E077 of 2021 could not afford it a defence not be a basis of striking out the appellant suit. iv. That the learned Magistrate erred in law and fact in that the misdirected himself on matters of both law and fact as to occasion a miscarriage of justice against the appellant. The appeal was canvassed by way of written submissions. Appellant’s submissions 8. These were filed by B.G. Wainaina & Co. Advocates and are dated 18th March, 2024. Counsel gave a brief background of the facts. He submitted that the respondent’s suit was not filed in line with the provisions of Section 10(4) of the Insurance (Motor Vehicles Third Party Risk) Act Cap 405. 9. Counsel further argued that the Judgment in Naivasha HCCA No. E077 of 2021 was a Judgment personum and so did not affect the appellant. He faulted the trial court for not applying the relevant decisions submitted by him. The rest of the submissions are as set out in Naivasha CMCC No. E072 of 2024 and E084 of 2024 which fall in the same series. Respondent’s Submissions 10. These were filed by Kinyanjui Njuguna & Co. Advocates and are dated 5th May, 2025. Counsel gave a brief background of the facts. He then submitted that the Judgment rendered in Naivasha HCCA No. E077 of 2021 was in favour of the respondent and it has not been set aside, varied, reviewed and/ or appealed against. 11. On whether the said Judgment is binding on parties and the trial court he answered in the affirmative. He submitted that it was for that reason that they filed the application to have the declaratory suit struck out. 12. He further submitted that the trial court could not over rule the orders of the Hon. Judge in Naivasha HCCA No. E077 of 2021. Further that the said orders have never been set aside. 13. The rest of the submissions are the same as those filed in Niavasha HCCA No. E072 of 2024 and No. E084 of 2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11248/eng@2025-07-29 2

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Analysis and Determination 14. This being a first appeal this Court has a duty to re – evaluate and assess the evidence before it and arrive at its own independent decisions. This was the holding in Selle & another vs Associated Motor Board Company & others [1968] EA 123. 15. I have carefully considered the record of appeal, the submissions by both parties, the cited decisions and the Law. I find the main issue for determination to be whether the trial court erred in dismissing the Notice of Motion dated 7th September, 2023. 16. It is not disputed that the motor vehicle registration No. KBG 326L was insured by the respondent and it was involved in a road accident on 4th October, 2015 as a result of which a series of primary and declaratory suits were filed. 17. The appellant’s suit is in the said series. It is also not disputed that the disclaimer suit Naivasha No. E658 of 2021 and Naivasha HCCA No. E077 of 2021 fell in that series. 18. The disclaimer suit was filed by the respondent herein where it sought to be dissolved from the claims by third parties in respect of motor vehicle KBG 326L. It is further not disputed that the High Court in HCCA No. E077 of 2021 in its Judgment set aside the Lower Court Judgment in Naivasha CMCC No. 661 of 2017 and granted the following prayers; a. A declaration is hereby issued that the plaintiff is entitled to repudiate the policy No. CTY/ xxx/xxx/2015 for breach of the insurance cover. b. A declaration is hereby issued that the plaintiff is not liable to make any payment under insurance policy No. CTY/xxx/xxx/2015 in respect to any claim against the defendant in the unlawful use of the motor vehicle registration No. KBG 326L. c. Each party shall bear their own costs. 19. From the Judgment in Naivasha HCCA No. E077 of 2021, it’s clear that the appellant herein was the 2nd respondent and fully participated in the said appeal. The issues in respect of Section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act being raised here and in the trial Court were raised in the said appeal. In the Judgment by Rayola Francis J at paragraph 45 – 53 the Hon. Judge addressed the issues relating to Sections 5b & 10(4) of the Act in detail. This finding is captured at paragraph 53 of the said Judgment. 20. This Court cannot therefore delve into that since the Court that dealt with it is of equal status with this Court. Similarly, the trial Court would not be expected to address the issues on Section 10(4) of the Act since it is bound by decisions of the High Court. 21. The matter having already been dealt with by the High Court on Appeal the lower court become functus officio. The only court that would re –evaluate that decision is the Court of Appeal. It cannot again be challenged before this court through this appeal or before the trial court as the appellant attempted to do. 22. A reading of the 2nd declaration in HCCA No. E077 of 2021 does not put it in the category of personum as submitted by the appellant. It applies to all claims in respect of the Insurance policy No. CTY/xxx/ xxx/2015 in respect to motor vehicle Registration No. KBG 326L. 23. I therefore find no error in the ruling by the trial court since the Judgment in Naivasha HCCA No. E077 of 2021 has not been overturned. The ruling is upheld. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11248/eng@2025-07-29 3

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24. The upshot is that the appeal lacks merit and is hereby dismissed. Each party to bear its own costs. 25. Orders accordingly. DELIVERED, VIRTUALLY DATED AND SIGNED THIS 29TH DAY OF JULY, 2025 IN OPEN COURT AT NAKURU. H.I. ONG’UDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11248/eng@2025-07-29 4

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