Anderson Kaburu Rucha v Geoffrey Nzeva Kiamba & 2 others

4. In isolating the particulars of negligence in the suit against the then Defendants/Respondents, the Plaintiff pleaded inter alia that the Defendants drove motor vehicle Registration Number KBD 185P at an excessively high speed in the circumstances, failed to exercise effective control over the said motor vehicle, Failed to heed the presence of the plaintiff’s motor vehicle, driving a defective motor vehicle and violating the provisions of the Traffic Act and Highway Code. On special damages. The Respondent pleaded the value of the car at Kshs. 280,000 being value less salvage value of Kshs. 100,000, towing charges Kshs 11,000 and Investigation fees Kshs. 22,950. 5. The Respondents raised a preliminary objection by way of a Notice of Motion dated 20th December, 2023, arguing that the second suit was res judicata. The trial court upheld the objection and struck out the suit, prompting this appeal. 6. Through a Memorandum of Appeal dated 9th August 2024, the Appellant preferred the following grounds of appeal: i. The learned magistrate erred in law and fact by failing to discern that the Appellant’s suit in the lower court was a claim for special damages for the benefit of the Appellant but for the benefit of his insurance company, The Kenyan Alliance Insurance Company Limited, which was Suing through the Appellant for the purpose of recovering its outlay under the insurance Principle of subrogation. ii. The Learned Magistrate erred gravely misapprehended the insurance principle of subrogation, where the insurance company steps into the shoes of it’s insured to seek compensation from the negligent Third party after indemnifying the insured, as was clearly pleaded in the Plaint filed in Ruiru PMCC E344 of 2023. iii. The learned magistrate erred and misdirected and misdirected himself in finding that the principles of Res judicata was applicable in the suit before the lower court 7. The Appellant prayed that the appeal be allowed, the ruling of 17th July 2024 be set aside, the Respondents’ application dated 20th December 2023 be dismissed, and the suit reinstated for hearing before a different magistrate. 8. The matter was canvassed by way of written submissions by the opposing parties through their counsel. 9. The appellants/applicants submit that the suit at SPMCC NO. E406 OF 2021 was instituted by the plaintiff (Appellant) claiming compensation for medical expenses (as special damages) and a claim for general damages for injuries he sustained as a result of an accident caused by the motor vehicle owned and driven by the Respondents. 10. Subsequently at the lower court in Ruiru PMCC NO. E344 of 2023, the Appellant’s insurer (The Kenyan Alliance Insurance Company) through its insured, Andrew Kaburu Rucha under the principle of subrogation filed suit to recover the outlay expended in repairing the Appellant’s motor vehicle, having indemnified the Appellant of his loss after the accident. 11. In this respect of this the Appellant relied on the decision in Nairobi Civil Case No 1453 of 2005 Thomas Muoka Muthoka & Another v Ernest Jacob Kisaka where it was held that: “ The insurance company is not made a party to the claim in the suit. It is normal practice for the insurance company to engage advocates to represent their insured. A subrogation claim within a trial would arise in cases of material loss claim whereby the insurance company seeks to have a refund from a defendant for damages caused to their insured/plaintiff’s material loss. A claim of subrogation does not mention the insurance company as a party. The party https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6154/eng@2026-04-30 2

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is the plaintiff who must come to give evidence to court, supported by a witness from the insurance company to prove payments that had been duly paid to the said plaintiff.” 12. On the merit of this Appeal the Appellant’s argued that the ruling of the lower court misapprehended the Appellant’s suit and that it would be unjust, unfair and highly prejudicial to bar the insurance company from recovering its outlay. They rely on the Supreme Court case of John Florence Maritime Services Ltd v Cabinet Secretary for Transport [2015] eKLR where the court stated: “ Though the doctrine of res judicata lent itself to promote the orderly administration of justice, it was not to be at the cost of trial injustice. 13. Although the Respondent filed submissions on the CTS, same did not open and after several attempts, Counsel was contacted via email to refile or provide a physical copy but that did not happen by the time of writing this judgment. In that event, the court proceeded to determine the matter on merit based on the memorandum of appeal, the record and the Appellant’s submissions. 14. This is a first appeal, and the duty of this court has been laid down in variousAbok James Odera T/A A.J Odera & Associates v Jon Patrick Machira T/A Machira & Company Advocates the court stated that: decisions of this court and the court of appeal. The court of Appeal in the case of “ ...being a first appeal from the High Court we are reminded of our primary role as first appellate court, namely to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 15. Bearing the duty of this court in mind and having considered the record, the parties’ submissions and the decisions referred to therein, the following issues arise for determination: i. Whether the present suit is res judicata in light of the previous proceedings between the parties. ii. Whether the trial Court misapprehended the doctrine of subrogation was properly invoked by the Appellant. i. Whether the present suit is res judicata in light of the previous proceedings between the parties? 16. The issue for determination is whether, on the basis of the pleadings, submissions, and the record before the Court and without calling for further evidence on oath, the present suit is res judicata and if so, what orders the Court ought to issue. In Attorney General & Another ET vs [2012] e KLR it was held: “ The courts must always be vigilant to guard litigants evading the doctrine of resjudicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi vs NBK & Others [2001] EA 177 the court held that “parties cannot evade the doctrine of resjudicata by merely adding other parties or causes of action in a subsequent suit.” In that case the court quoted Kuloba J, ( as he then was) in the case of Njanju v Wambugu and another Nairobi HCC No. 2340 of 1991 (unreported) where he stated : If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6154/eng@2026-04-30 3

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some cosmetic face lift in every occasion he comes to court, then I do not see the use of doctrine of resjudicata…” 17. In Isaiah Ondiba Bitange v & 3 others v Institute of Engineers of Kenya another [2017] KEHC 7565 (KLR) the court articulated what constitutes a cause of action as follows: “ A cause of action was defined by Obi Okoye —Essays on Civil Proceedings,[1] thus — "By a cause of action is meant any facts or series of facts which are complete in themselves to found a claim or relief.”[2] In the case of Drummond Jackson v. British Medical Associations & Ors.,[3] Lord Pearson stated as follows:- “........... the expression “reasonable cause of action”[4] ....No exact paraphrase can be given, but I think “reasonable cause of action” means a cause of action with some chance of success when......... only the allegations in the pleading are considered, if it is found that the alleged cause of action is to fail, the statement of claim should be struck out.” The Supreme Court of Nigeria in the case of Oshoboja v. Amuda & Ors;[5] held that a reasonable cause of action means a cause of action with some chances of success, when only the allegations in the Statement of Claim are considered. Our law is the law of the practitioner rather than the law of the philosopher. Decisions have to draw their inspiration and their strength from the very facts which framed the issues for decisions.” 18. From the pleadings and material placed before this Court, it is evident that the previous suit Ruiru SPMCC No. E406 of 2021 was instituted by the Respondent seeking general damages for pain and suffering and loss of amenities and special damages Kshs. 161,515 arising from a road traffic accident. That claim was prosecuted to conclusion, and damages were awarded. 19. In Ruiru PMCC No. E344 of 2023 the suit that gave rise to this Appeal, however, has been brought under the doctrine of subrogation. The Claimant, being an insurer, purports to step into the shoes of the insured and seeks to recover sums of Kshs. 313,950 allegedly paid out under an insurance policy. 20. A careful comparison of the two causes of action reveals that they are not identical. The earlier suit was a personal injury claim grounded in tort, whereas the latter one leading to this appeal is premised on the equitable doctrine of subrogation. Although both claims arose from the same accident, they sought different remedies and involved different beneficiaries. The insurance company did not have a valid cause of action founded on subrogation in the earlier suit, and, in any event, the law of subrogation does not bar an insurer from pursuing recovery merely because the insured had filed a separate claim for personal injury. 21. The earlier proceedings determined liability only to the extent of awarding damages to the injured party. I find that a claim founded on the principle of subrogation would not be sustainable in the previous suit, as liability had not been conclusively determined. In essence, a subrogation claim must arise after liability has been conclusively determined and compensation duly effected in a manner that creates a recoverable loss against a third party. Absent such a foundation, the claim cannot stand. The claim in Ruiru PMCC No. E344 of 2023 had been instituted by the insurance company in the name of the appellant. The insurer was not involved in the earlier suit and, in any event, could not have participated in those proceedings since the claim was not brought in the name of its insured. 22. In view of the above, I find that the issues in Ruiru SPMCC No. E406 of 2021 were personal to the claimant in that claim and did not relate to the appellant herein or the insurance company in Ruiru PMCC No E344 of 2023. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6154/eng@2026-04-30 4

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23. The second issue is whether the doctrine of subrogation was properly invoked by the Appellant.The issue for determination concerns the doctrine of subrogation, the point at which it crystallizes, and the manner in which an insurer steps into the shoes of the insured. In Kenya Power & Lighting Company Limited v Julius Wambale & Another Court rendered itself as follows: “ The parameters within which the principle of subrogation applies are now well settled. The doctrine applies where there is a contract of insurance and following crystallization of the risk insured, the insurer had compensated its insured for financial loss occasioned thereby usually by a third party. Under this doctrine, the insurer is in law entitled to step into the shoes of the insured and enjoy all the rights, privileges and remedies accruing to the insured including the right to seek indemnity from a third party. The action must however be instituted in the name of the insured with his consent and must relate to the subject of the contract of insurance... It is not disputed that the insurance company has not yet settled the decretal amount on behalf of the applicant who is its insured. It therefore follows that its right under the doctrine.” 24. In Opiss vs. Lion of Kenya Insurance Company Civil Appeal No. 185 of 1991, the Court stated as follows: “ ... The right to subrogate does not create a privity of contract between the insurance company and the third party; it only gives the insurance company the right to take over the rights and privileges of the insured and therefore must be brought in the name of the insured. (emphasis added)” 25. It follows from the foregoing that a claim founded on the doctrine of subrogation is, in substance, one pursued by an insurer seeking to recover amounts it has indemnified its insured following an accident occasioned by a third party. In such a claim, it is essential to establish the existence of the insurance contract, the payment made by the insurer to the insured, and the liability of the third party. Moreover, as a matter of law, the action must be instituted in the name of the insured, albeit for the benefit of the insurer. 26. Having considered the pleadings on record, it is evident that the doctrine of subrogation was expressly and properly pleaded. In that regard, I am satisfied that the insurer, Kenya Alliance Insurance Company Limited, is in law entitled, upon indemnifying its insured, to step into the insured’s shoes and to assume all rights, privileges, and remedies available to the insured, including the right to pursue recovery from a third party and to institute proceedings in the name of the insured, as was done in this matter. 27. Accordingly, I find that the doctrine of subrogation is applicable in the present case, given that there existed a valid contract of insurance, the insured risk had crystallized, and the insurer had duly compensated its insured for the financial loss occasioned by the appellant. 28. Resultantly I make the following orders: i. The ruling in Ruiru Principal Magistrate’s Court case number E344 dated 17th July 2024 is hereby set aside and the matter is reinstated for hearing on merit. ii. The matter is remitted to the trial court for hearing and determination. iii. Costs to abide in the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF APRIL, 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6154/eng@2026-04-30 5

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T.W. OUYA, OGW JUDGE In the presence of: Wambui for the Appellant Ndegwa 1st and 3rd Defendant/Respondent Kevin & Hamza: Court Assistants https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6154/eng@2026-04-30 6

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