Britam General Insurance Company Limited v Peter Njoroge & 2 others

2. The application is based on various grounds and the applicant asserts that it had insured the respondents motor vehicle KCT 866U which was involved in a road traffic accident on 20/02/2021. That the applicant instructed counsel to represent the first respondent in claims arising from the said accident. That upon investigations the applicant realized that at the time of the accident the 1st respondent was using the motor vehicle to ferry six passengers which exceeded the authorized limit and was used for hire and reward contrary to the policy terms and conditions. 3. The investigations and verification of the 2nd respondents claim by the applicant took longer than expected and the time limited for filing the suit lapsed under Section 10(4) of Cap 405 Laws of Kenya. The applicant filed this application seeking leave to file the suit out of time and the stay of execution of the Judgement and decree in the suit. 4. The respondent upon being served with the application filed a notice of preliminary objection based on the grounds that: 1. The suit is statute barred contrary to Section 10(4) of the Insurance (Motor Vehicle Third Party Act Cap 405) 2. That the applicant’s claim is based on contract and not a tort as envisaged under Section 4(2) 27 and 28 of the Limitation of Actins Act Cap 22 and therefore not available for extension of time. 3. That the suit is frivolous vexatious and an abuse of the court process. The parties agreed to argue the application by way of written submission. Applicants Submissions 5. He has raised the issue whether the Preliminary Objection constitutes a pure point of law capable of disposal without assessing the facts and evidence. The applicant submits that in Nutin Properties Ltd v Singh Kalsi & Another 1995 eKLR Court of Appeal, it was held that: “ A preliminary objection raised a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sough is the exercise of judicial discretion.” 6. He further relies on Corporate Insurance Company Limited v Benjamin Mwangi Harun (2017) eKLR the Judge quoted the case of Mukisa Biscuits Manufacturing Company Ltd v Westend Distributors Co. Ltd (1969) EA where it was held that a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings on which if argued as a preliminary point may dispose of the suit. examples are objection to jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the suit to arbitration.” “ A preliminary objection is in the nature of demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of Judicial discretion.” 7. He submits that the court has to ascertain whether what is raised in a pure point of law. He submits that what is raised is not a pure point of law. The applicants submit that the second issue is whether the suit is stature barred and contrary to Section 10(4) of the Insurance (Motor Vehicle Third Party) Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4240/eng@2026-02-05 2

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The applicant admits that the application is out of time and the delay has been explained. That the court should take into account the nature of the process against which the extension is sought. That the court has discretion to allow the application and the court should satisfy itself that there are reasonable basis to justify the orders sought. That all what he has to show is that he has a good reason for the delay. 8. The applicant further urges the court to determine whether the applicant’s claim is based on contract and not tort. That the suit is founded on contract as the 1st respondent bleached the Insurance Contract between himself and the applicant. He submits that the claim is based on contract and falls with the ambit of Section 10 of the Insurance (Motor Vehicles Third Party Risk) Act and not Section 27 of Cap 22 which does not give court jurisdiction to extend time for filing suits involving contracts or any other causes of action other than those in tort. 9. He relies on the case of Jubilee Insurance Company of Kenya v Nelson Njenga Munene & Others (2018) eKLR where the court held that provisions under Cap 22 are not applicable where the applicant is faced with limitation under Section 10 Cap 105. He submits that the court has jurisdiction to hear and determine the applicant before it and granted the orders sought by virtue of Section 10 (Supra). That the orders sought are discretionary which this court can grant. Respondent’s Submissions 10. He submits that what the court has to determine is whether the preliminary objection is well founded. He submits that a preliminary objection must first raise a point of law based on ascertained fact and not on evidence. That when successfully argued, it will dispose off the matter. That a preliminary objection is in the nature of legal objection not based on the merits or facts of the case but must be on pure points of law. 11. He relies on the definition given in the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Limited (Supra). That gist of objection is that the suit is fatally defective as it is time barred under Section 10(4) of the Insurance (Motor Vehicle Third Party Risks) Act (supra) and the claim is based on contract not a tort as envisaged under Section 4(2), 27 & 28 of the Limitation of Action Act and therefore not available for extension of time. 12. He submits that the suit is time barred under Section 10(4) Insurance (Motor Vehicle Third Party Risks) as the applicant failed to institute a disclaimer suit in time. That where there is a clear procedure for redress in the Constitution and the Statute it should be strictly followed he relies on Speaker of the National Assembly v James Njenga Karume (1992) eKLR, Court of Appeal. That the applicant lost his right to rely on the statute. The respondent submits that Section 4(2), 27 and 28 of the Limitation of Action Act (Supra) the claim is not based on contract but on tort and therefore not liable for extension. He relies on Willis Onditi Odhiambo v Gateway Insurance Co. Limited CA N 37/2013 eKLR, Court of Appeal where the Court of Appeal held that the Limitation Act applies to extend time in claims based on torts of negligence nuisance or breach of duty in respect to personal injury. Mary Osundwa -vs Sugar Company (2002) eKLR for the same proposition. CIC General Insurance Limited v Njuhia & Another (2023) KLR suit which the applicant was barred by exfiuxion of time. Under Section 10(4) of the Insurance (Motor Vehicle Third Party Risks) Ack Cap 405 (supra) the applicant was supposed to have obtained a declaration that it was entitled to avoid its obligation under the contract of Insurance. The applicant filed this suit seeking leave to appeal out of time. He submits that the application has merits. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4240/eng@2026-02-05 3

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Analysis and Determination 13. I have considered the preliminary objection and the submissions. The issue for determination is whether the preliminary objection has merits. I note that the parties have well-articulated in their submissions as to what constitutes a preliminary objection as held in the case of Mukisa Biscuits Company Limited v Westend Distributors Limited (Supra) it is well settled that a preliminary objection is based on a point of law and which when argued successfully may dispose of the suit. It is argued on points of law without any need to ascertain any facts. There is no dispute that the declaimer was statute barred. 14. Leave to file suit out of time. Section 4(2) and 27(A) of the Limitation of Actions Act provides that: “ 4(2) An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.” 27(1) Section 4(2) does not afford a defence to an action founded on tort where: 15. a. The action is for damages for negligence, nuisance or breach of duty whether duty exists by virtue of a contract or written law independently of contract or written law and b. The damages claimed by the plaintiff for the negligence nuisance or breach of duty consists of or include damages in respect of personal injuries or any person and c. The court has whether before or after commencement of action granted leave for the purposes of this Section and d. The requirements of subsection (2) are fulfilled in relation to the cause of action.” The applicant is seeking leave to file a declaratory suit out of time. Upon discovery that the motor vehicle was being used contrary to the terms of the insurance policy. The court of Appeal in the case of Willis Onditi Odhiambo v Gateway Insurance Company Ltd (2014) KECA 186 KLR stated that: “ Under Section 27 as can be glanced from he above provision cited above, time to file suit can only be extended where the action is founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed should be in respect of personal injuries to the plaintiff as a result of the tort.” 16. Section 27(1) (Supra) lays down the circumstances upon which the court would have jurisdiction to extend time. That action must be founded on tort and must relate to torts of negligence, nuisance or breach of duty and the damages claimed are in respect of personal injuries t the plaintiff as a result of the tort. It is clear that the Section does not give jurisdiction to the court to extend time for filing suits in cases involving contract or any other cause of action other than in tort. 17. In this case, the applicant is seeking extension of time to file suit based on breach of the Policy of Insurance. The suit by the 2nd respondent was filed within time and Judgment was entered and decree issued. The relationship between the applicant and the first respondent is based on contract. Section 10(4) of the Insurance (Motor Vehicle Third Party) Act Cap 405 Law of Kenya which deals duty of Insurance company to satisfy Judgments against persons insured, the insurer is expected to commence an action to avoid the contract if it has obtained a declaration that a part from any provision contained in the Policy he is entitled to avoid it on the ground that it was obtained by none disclosure of material fact or by a representation of fact which was false in some material particulars or if he has avoided on the ground that he was entitled so to do so apart from any provision contained in it. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4240/eng@2026-02-05 4

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18. The claim which the 2nd respondent filed was based on tort and therefore Section 4(2), 27 & 28 of the Limitation of Actions Act applies in these proceedings if the applicant was seeking to extend time to file the disclaimer suit. The applicant admitted that the suit is time barred. The applicant has further argued that he claims against the 1st respondent is based on contract and is not covered under Section 10 Insurance (Motor Vehicle Third Party Risks) Act. The same position is that the provision under Cap 22 where the applicant is faced with Limitations under Section 10 Cap 405. 19. The applicant is seeking the exercise of discretion by the court to extend time. A preliminary objection cannot be raised if any facts are to be ascertained or if what is sought is the exercise of judicial discretion. See Charles Newbold in Mukisa Biscuits Co. Ltd v Westend Distributors Ltd. It is trite that court possesses wide discretionary powers to extend time for filing suit. It is also clear that Section 4(2), 27 & 28 of Limitation of Actions Act gives a window for a party to seek extension of time. 20. It is my view that all that the party would be required to do is to demonstrate that he has a good reason for failing to file application within time. It has been held that it is draconian to dismiss a suit without giving a party an opportunity to be heard. I find that I should exercise discretion to allow the applicant to argue the application. I find that the preliminary objection is without merits and is dismissed. Costs in the cause. DATED, SIGNED AND DELIVERED AT KITUI THIS 5TH DAY OF FEBRUARY 2026 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4240/eng@2026-02-05 5

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