Dickens Mwiti Riungu v Trident Insurance Co Limited

5. Being dissatisfied with the judgment of the court, the Appellant filed this appeal through the Memorandum of Appeal dated 11/10/2024 on grounds that; a. The trial court erred and misdirected itself in law by finding that the court had no jurisdiction. b. The trial court erred and misdirected itself in law by finding that the claim is not provided under the Small Claims Act. c. The trial court erred and misdirected itself in law by finding that by striking out the suit. d. That the trial court’s judgment was therefore untenable in law and should be nullified by the Appellate Court. 6. The Appellant prayed that the judgment of the trial court be set aside, varied and/ or reviewed. He also prayed for costs of the appeal. 7. The appeal was canvassed by way of written submissions. The Appellant in his submissions dated 26/02/2025 argued on the issue of whether the Small Claims Court has jurisdiction to hear declaratory suits. It is submitted that section 13 (5) of the Small Claims Act does not bar declaratory suits from being filed in the court. 8. Further, it was submitted that section 12 (1) (d) of the Act provides that the court has jurisdiction to determine any claim relating to compensation for personal injuries. The Small Claims Court therefore has jurisdiction over declaratory suits as the orders in the suit ensures that the Claimant is compensated for the personal injuries suffered. 9. The Appellant relied on the case of Corporate Insurance Company Limited v Elias Okinyi Ofire, CACA No. 12 of 1998, where the Court of Appeal found that subordinate courts have jurisdiction to hear declaratory suits. The Appellant submitted that the Small Claims Court being a subordinate court has jurisdiction to hear declaratory suits. 10. In its submissions dated 09/05/2025, the Respondent submitted that this court has consistently found that the Small Claims Court has got no jurisdiction to entertain declaratory suits. The Respondent relied inter-alia on the case of Kenya Orient Insurance Limited v Otieno [2024] KEHC 7637 (KLR). The Respondent prayed that the appeal be dismissed with costs. Analysis 11. The role of the first appellate court to re-examine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) EA 123 as follows: “ … Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …” 12. I have considered the Record of Appeal and submissions by the parties. The issues for determination are: a. Whether the Small Claims Court had jurisdiction to make a determination on declaratory suits. b. What orders on costs should be made by this court https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19598/eng@2025-11-13 2

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13. On the first issue of jurisdiction, in the case of Owners of the Motor Vessel ‘Lilian S’ v Caltex Oil (Kenya) Ltd (1989) eKLR, it was held that jurisdiction of the court is everything. Both parties rely on section 12 of the Small Claims Act in support of their rival positions. 14. Section 12 (1) of the Small Claims Court Act provides for jurisdiction of the Small Claim Court as follows: “ Subject to this Act, the Rules and any other law, the Court has jurisdiction to determine any civil claim relating to: a. a contract for sale and supply of goods or services; b. a contract relating to money held and received; c. liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property; d. compensation for personal injuries; and e. set-off and counterclaim under any contract.” 15. I am alive to the conflicted school of thoughts on the jurisdiction of the Small Claims Court in declaratory suits. On one hand, the position as held in the case of Kenya Orient Insurance Limited v Otieno (supra) where this court has held that section 12 of the Small Claims Act does not expressly confer jurisdiction on the Small Claims Court to handle declaratory suits. 16. On the other hand, the position held in the case of Jubilee Allianz General Insurance Kenya Limited v Wanjiru [2025] KEHC 11672 (KLR), where it was held that declaratory suits being pegged on insurance contracts falls under section 12 (1) (a) of the Small Claims Act as insurance is a service. Further, the court in the Jubilee case (supra) made reference to the Corporate Insurance case (supra) in finding that Small Claims Court was a Subordinate Court which has jurisdiction over declaratory suits. 17. This court is inclined to agree with the school of thought that Small Claims Court have got no jurisdiction over declaratory suits. The primary suit which is a claim for compensation for the personal injuries falls under section 12 (d) of the Act. The declaratory suit seeks to enforce the judgment against the insurer who was not a party to the primary suit. The contract of insurance services was between the Respondent in the primary suit and the Respondent in the declaratory suit. 18. Though the proponents of the school of thought that a declaratory suit involves contract of insurance services, I am of the view that even though that was the position, the contact of insurance services is between the insurance company and the insured. Declaratory suits cannot fall under section 12 (a) of the Act, as the Claimant is not privy to the insurance contract. The Claimant has got no locus standi to enforce a contract that he is not a party to. 19. However, the Claimant can enforce the Judgment under section 10 (1) of the Insurance Motor Vehicle (Third Party Risks) Act. I do associate myself with the finding in the Kenya Orient case (supra) that compelling a judgment debtor to settle a decree does not fall under the provisions of section 12 of the Act. Therefore, this court holds the position that Small Claims Court have got no jurisdiction over declaratory suits. 20. On costs, the same follows the event. The appeal having failed, costs are awarded to the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19598/eng@2025-11-13 3

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Determination 21. Following the foregone discourse, the upshot is that the following orders do hereby issue; a. That the appeal lacks merits and is hereby dismissed. b. Costs awarded to the Respondent It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 13TH DAY OF NOVEMBER, 2025. ……………………… HON. F. WANGARI JUDGE In the presence of; Ms. Wanjiku Advocate for the Appellant. N/A by the Respondent. Ms. Salwa, Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19598/eng@2025-11-13 4

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