David Mwombe Ambani v The Statutory Manager Xplico Insurance Company Limited & 1 other

a. A declaration that the Defendant, being the Statutory Manager of Xplico Insurance Company Limited, is bound to satisfy judgments arising from a road traffic accident involving motor vehicle registration number KBS 916 Toyota Corolla and motorcycle registration number KMFZ 434Z Boxer; b. A stay of execution of the decrees issued in Kakamega SCCC No. E 087 of 2023 and Kakamega SCCC No. E149 of 2023 pending satisfaction of the said decrees by the Defendant. 4. The Interested parties are decree holders in the aforesaid subordinate court suits. Issues of Determination 5. The court identifies the following issues for determination i. Whether the Preliminary Objection meets the legal threshold; ii. Whether the interested parties are properly joined in the suit; iii. Whether the suit against the Interested parties ought to be struck out; iv. Whether this Court has jurisdiction to hear and determine the matter; v. What orders ought to issue; Analysis and Determination KK. HCC E001 OF 2024 - RULING 2

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I. Whether the Preliminary Objection meets the legal threshold 6. In the Locus Classicus case of Mukisa Biscuit Manufacturing Co. Ltd V West End Distributord Ltd, Law the court stated: “So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.” 7. The same position was reaffirmed in Oraro v Mbaja Where the court held: “Anything that purports to be a preliminary objection must not deal with disputed facts and must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.” 8. Further, in Lemit Ole Koros & Another V attorney general & 3 others,the court observed; “Where facts are contested, then automatically the issue falls outside the ambit of a preliminary objection.” 9. The interested parties’ objection is founded on the doctrine of privity of contract and the alleged absence of a cause of action against them. These are legal issues discernible from the pleadings and do not require evidentiary interrogation. 10. The court therefore finds that the preliminary objection satisfies the threshold set out in Mukisa Biscuit. KK. HCC E001 OF 2024 - RULING 3

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ii. Whether the Interested parties are properly joined in the suit 11. The Plaintiff’s suit is principally a declaratory suit brought pursuant to section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 Laws of Kenya. 12. Section 10 of the Insurance Act (Motor Vehicle Third Party Risks) Act creates statutory obligation upon Insurance to satisfy judgments obtained against insured persons in respect of third party risks. 13. In Kenindia Assurance Company Ltd. V Patrick Onyango Maina, the Court of Appeal held that declaratory suits are specifically intended to determine whether an Insurance is obligated to satisfy judgments obtained against its Insured. 14. Similarly in Blue Shield Insurance Co. Ltd. V Joseph Mboya Oguttu, the court observed that declaratory proceedings under Section 10 of the Act are intended to protect third party decree holders while at the same time resolving disputes between the Insurance and Insured parties. 15. The Interested parties herein are decree holders whose judgments the plaintiff seeks to stay and whose satisfaction forms the very substratum of the declaratory suit. 16. Order 1 Rule 10(2) of the Civil Procedure Rules empowers the court to add parties whose presence before the court may be KK. HCC E001 OF 2024 - RULING 4

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necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. 17. The Court of Appeal in Departed Asians Property Custodian Board V Jaffer Brothers Ltd held that a party is properly joined if their presence is necessary for the effectual and complete determination of all questions in controversy. iii. Whether the Interested parties are necessary parties and if not should the suit against them be struck out. 18. The Interested parties contend that they are strangers to the Insurance contract and therefore they are improperly enjoined in the suit. 19. They cited the case of Agricultural Finance V Lengetia Ltd & Another where the Court of Appeal held “As a general rule a contract affects only the parties to it, and cannot be enforced by or against a person who is not a party.” 20. They also relied on case of in Savings & Loan Kenya Ltd V Kanyenje Karangaita Gakombe & Another where the Court reiterated that the rights and obligations under a contract cannot ordinarily bind Third Parties. 21. The Interested Partied sued the Plaintiff for compensation for injuries sustained when they were involved in a road traffic accident with a motor vehicle owned by the Plaintiff but not the Defendant, thus to me they are remotely connected to the Defendant. KK. HCC E001 OF 2024 - RULING 5

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22. The Insurance contract was between the Plaintiff and the Defendant. The Interested Parties have no business with the terms of the contract. I do agree they are strangers as they have submitted. The terms of the contract cannot bind them. 23. The question as to whether the suit against the interested parties ought to be struck out, Order 2 Rule 15 of the Civil Procedure Rules grants the court discretion to strike out pleadings that disclose no reasonable cause of action, are frivolous or vexatious or amount to abuse of the court process. 24. The jurisdiction to strike out is often exercised sparingly. See the case of DT Dobie & Company( Kenya) Ltd V Muchina and in the clearest of all cases see the case of Yaya Towers Ltd V Trade Bank Ltd (In Liquidation). 25. Having found that the Interested Parties are strangers to the contract between the plaintiff and the Defendant, clearly the Plaintiff has no cause of action against the Interested parties, and I therefore strike out their names as Interested Parties in this suit. The Plaintiff is at Liberty to proceed with his case against the Defendant. 26. The Preliminary Objection dated 27th May 2025 is hereby upheld. Cost of the Preliminary Objection awarded to the Interested Parties. 27. Right of Appeal 30 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 2ND DAY OF JUNE, 2026 KK. HCC E001 OF 2024 - RULING 6

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S. N. MBUNGI JUDGE In the Presence of C/A: Velma & Zildah. Applicant present online. Mr. Keter for the Applicant visible on the platform but not audible. Court Assistant to upload the Ruling on the CTS forthwith. KK. HCC E001 OF 2024 - RULING 7

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