Directline Assurance Company Limited v Nathaan Maaka

5. The Defendant/ Appellant further filed an application dated 07/02/2024 seeking to stay the proceedings in respect to the application dated 18/08/2023 and the main suit on grounds that there was discovery of new facts which would determine the application and the suit, hence the urgent need to amend the Statement of Defence. 6. The trial court proceeded to give directions in respect to the Plaintiff/ Respondent’s application dated 18/08/2023. The court proceeded to render its ruling dated 11/04/2024. The Appellant/ Defendant’s defence was struck out on grounds that the Defendant participated in the primary suit and did not raise the issues of forgery and fraud, hence this was an afterthought, and the Appellant’s attempt to have a second bite of the cherry. 7. Being dissatisfied, the Appellant appealed against the ruling of the court through the Memorandum of Appeal dated 07/05/2024 on grounds inter alia that the learned magistrate erred in both law and fact for striking out a statement of defence which had triable issues, failing to consider the fact that the Defendant in the primary suit was not insured by the Appellant hence the judgment obtained was irregular. It was prayed that the appeal be allowed by setting aside the ruling of the court, and the Appellant/ Defendant be allowed to defend the suit in the lower court. 8. The appeal was canvassed by way of written submissions and both parties complied by filing the rival submissions. The Appellant in its submissions dated 02/12/2024, submitted that the averment that the Defendant in the primary suit was not insured is a triable issue. Further, it was submitted that the Appellant was denied the opportunity to be heard in respect to the application dated 07/02/2024 seeking to amend the defence so as to plead fraud, and the court ought not to have denied them the opportunity to amend its defence. 9. The Respondent in the submissions dated 06/05/2025 submitted that the trial court rightfully found that the defence was a mere denial and did not raise any triable issues and the court was in compliance with the legal principles in striking out of pleadings under Order 2, rule 15 of the Civil Procedure Rules. 10. On the denial of the right to be heard, the Respondent submitted that the Appellant was granted an opportunity to respond to the application dated 18/08/2023, and it even filed the Replying Affidavit and written submissions. The court considered the same before making its determination as per the impugned ruling. It was prayed that the appeal be dismissed with costs. Analysis 11. 12. Having perused through the pleadings on record, the issues for determination are; a. Whether the appeal has merits b. Who bears the costs The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 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 …” 20. I have perused through the Record of Appeal. The Appellant denies service of the Statutory Notice and participating in the primary suit. From the documents filed, the Statutory Notice dated 02/07/2021, has a stamp dated 06/07/2021 and in the name of the Appellant company, which is an indication that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19600/eng@2025-12-05 2

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the Statutory Notice was served upon and received by the Appellant. I find that the Appellants were properly served with the Statutory Notice. (See Gateway Insurance Company Limited v Paul Kamau Waithaka [1993] eKLR) 21. On failure to participate in the primary suit, I do agree with the submissions by the Respondent that the Appellant instructed the advocated on record in this appeal, the declaratory suit and the primary suit. The advocates on record were even notified of the intention to file the declaratory suit through the letter dated 04/05/2023. I find that the Appellant participated in the primary suit contrary to its allegations. 22. On the failure to be granted an opportunity to be heard, the application in issue sought leave to file newly found fact that necessitated the amendment of the Statement of Defence. The Appellant allege that the Defendant in the primary suit was not insured by the Appellant. 23. Considering that the Appellant was served with the Statutory Notice before filing of the primary suit, the Appellant participated in the primary suit and the notice of intention to file the declaratory suit having been issued through the Appellant’s Advocates, it cannot be said that this is a new fact. This is information that was within the knowledge of the Appellant as at the time of filing the primary suit, but the Appellant did nothing about it. 24. Even though the application dated 07/02/2024 was not heard and determined, this is an application that was ripe for dismissal in limine. Furthermore, the Appellant was given an opportunity to be heard in respect to the application dated 18/08/2023, and a determination made, which is subject to this appeal. 25. I do concur with the finding of the trial court that the claim by the Appellant raising the issue of fraud was “an afterthought and litigation in instalment which is frowned upon by all courts…..” The statement of defence is a mere denial and with no triable issues. In Patel vs. E.A Cargo Handling Services Ltd (1974) EA 75 at p.76 Duffus P. held that; “ a triable issue is an issue which raises a prima facie defence and which should go to trial for adjudication.” 20. From the discussion herein above, I find that the appeal lacks merits and is hereby dismissed. 21. On costs, the Appellant’s appeal having been dismissed, I exercise this court’s discretion and have the Appellant meet the Respondent’s costs. Determination 13. 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 05TH DAY OF DECEMBER, 2025 ……………………….. HON. F. WANGARI JUDGE In the presence of; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19600/eng@2025-12-05 3

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N/A by the Appellant N/A by the Respondent Ms. Salwa, Court Assistant NB: Judgment released to the registry for uploading to the CTS. Parties be notified. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19600/eng@2025-12-05 4

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