Kenya Orient Insurance Company Limited v Babra Ayieko & 1 other

court can be moved under Section 91 of the Civil Procedure Act and its supervisory jurisdiction under Article 165 (6) of the Constitution. 5. The 1st Respondent had attached the Appellant’s goods and the Appellant paid her Kshs. 217,856 while the 2nd Respondent claimed settlement of Kshs. 30,893 as auctioneer’s costs. The Appellant was therefore entitled to the restitution. 6. The Respondent filed a Replying Affidavit sworn on 27/05/2025 stating that the Small Claims Court delivered a judgment in favour of the 1s Respondent. The trial court denied an application by the Appellant to stay and set aside the interlocutory judgment. 7. An appeal was lodged against the ruling of the trial court. On 15/04/2024 rendered a further ruling (sic) where it set aside only the interlocutory judgment but it did not interfere with or nullify the declaratory judgment issued by the Small Claims Court. 8. I need not go further with the averments of the Respondents in their Replying Affidavit for reasons to be given herein below. 9. The Respondent also filed Notice of Preliminary Objection dated 27/05/2025 on grounds that this court functus officio with respect to the application herein having issued a judgment on 21/03/2024. The Appellant had also filed a similar application for refund of decretal sum before the trial court but the same was dismissed. 10. That the Appellant cannot now forum shop by reintroducing the same claim before this court under the guise of a fresh application as the matter is res judicata. That allowing the application to proceed would violate the principles set out in Sections 1A and 1b of the Civil Procedure Act for just, expeditious and proportionate resolution of disputes. 11. Both the application and the Preliminary Objection were canvassed by way of written submissions which I have considered. Analysis 12. As stated in paragraph 8 above, I did not dwell on other averments in the Replying Affidavit for reasons as follows. The Respondents in the Replying Affidavit stated that this court did not nullify the interlocutory judgment but only set it aside. the also deponed that this court had pronounced itself in a judgment dated 21/03/2024 and later gave a ruling on 15/04/2024. 13. Nothing could be farther from the truth that the above mentioned averments. I have perused through the proceedings before this court. There is no such judgment that was delivered on 21/03/2024. The court did not give a ruling on 15/04/2024 but a judgment on appeal. 14. The Respondent averred that the court did not nullify the interlocutory judgment hence the interlocutory judgment entered by the trial court was still in force and the Respondents are entitled to the decretal amount as received. I make reference to paragraph 11 of the judgment of this court dated 15/04/2024. The court held that the Small Claims Court had no jurisdiction to hear and determine a declaratory suit as it has no place under section 12 of the Small Claims Court Act. 15. Further, in paragraph 13, 14, 15and 16 of the said judgment, this court held that an interlocutory judgment is only entered in liquidated claims. A declaratory suit is unliquidated by nature, hence a judgment cannot be entered on it. The trial court ought to have fixed the matter for formal proof. 16. In paragraph 19, the determination of the court, the court found the interlocutory judgment entered on 22/05/2023 and all consequential orders set aside irregular and the same was set aside. The suit in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4360/eng@2026-02-26 2

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the Small Claims Court, Mombasa Small Claims Court Claim No. E205 of 2023 was struck out for want of jurisdiction. 17. The issue of jurisdiction was settled in the case of “Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR where Justice Nyarangi, JA, as then he was held as follows: “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 18. The Small Claims Court having had no jurisdiction to hear and determine declaratory suits, the court no option but to down its tools. The interlocutory judgment and all consequential orders having been found irregular, the Preliminary Objection seeking to uphold the declaratory judgment fails. 19. In regard to the application dated 12/02/2025, for restitution of the decretal amount paid as a result of the irregular judgment, the application is merited and the same is allowed as prayed. As for costs, each party to bear its own costs as it was no fault of either party that the trial court proceeded to hear and determine a matter that it had no jurisdiction over. 20. Accordingly, this court makes the following orders: a. The Preliminary Objection dated 27/05/2025 lacks merits and is hereby dismissed. b. The Notice of Motion dated 12/02/2025 is merited and is allowed on the following terms; The 1st Respondent to refund Kshs. 217,856/= paid in settlement of the decretal sum in respect to the impugned judgment, in the next 45 days. The 2nd Respondent to refund Kshs. 30,893 paid as the auctioneer’s costs, within the next 45 days. c. The court declines to award interest on the amount stated herein above. d. In default of payment by either party, the Appellant is at liberty to execute. e. Each party to bear its own costs. DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 26TH DAY OF FEBRUARY, 2026 ......................... HON. F. WANGARI JUDGE OF THE HIGH COURT In the presence of: Mr. Kioko Advocate for the Appellant/ Applicant N/A by the Respondents Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4360/eng@2026-02-26 3

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