Kenya Orient Insurance Company Limited v Antonne Akalongo

3. In the said ruling the trial court found that the appellant’s defence to the suit was otherwise an abuse of the process of the court and consequently allowed the application and struck out the defence by the appellant. 4. The appellant was dissatisfied with that decision and has filed the present appeal based on the following grounds. That by: a. The learned trial magistrate erred in law and in fact by taking into account and failing to take into account things she ought to have taken into account. b. The learned trial magistrate erred in law and in fact conducting a trial through affidavits by attempting to resolve issues that had contradicting evidence hence exceeded her jurisdiction and powers in an application for striking out. c. The learned trial magistrate erred in law and in fact in failing to hold that the defence as drawn disclosed various triable issues hence erred in failing to dismiss the application. d. The learned trial magistrate erred in failing to apply the principles for striking out proceedings hence ended up misdirecting herself. e. The learned trial magistrate violated the principle of stare decisis hence exercised her discretion wrongly. 5. The appellant thus prays that the appeal be allowed with costs with orders that the ruling of the trial court dated 29th January 2025 be set aside and substituted with an order dismissing the respondent’s notice of motion dated 5th October 2024. 6. The appeal was canvassed by way of written submissions. Learned counsels for both parties filed their respective submissions urging their respective positions on the matter. 7. This being a first appeal, the duty of the court is to consider, re-evaluate, and re-analyze the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that: “ An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”. 8. I have considered the trial court’s record, the grounds of appeal as set out in the amended memorandum, the submissions for and against this appeal and cited cases. The issue for determination is whether the learned trial Magistrate erred in allowing the respondent’s application for striking out the appellant’s defence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11298/eng@2026-01-14 2

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9. The power of the court to strike out a pleading is provided for under Order 2 rule 15 of the Civil Procedure Code (CPC) which provides as follows: “ 15(1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— a. It discloses no reasonable cause of action or defence in law; or b. It is scandalous, frivolous or vexatious; or c. It may prejudice, embarrass or delay the fair trial of the action; or d. It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.” 10. The respondent’s application before the trial court was premised on Rule 15(1)(a) and (d) of the CPR that is, that it discloses no reasonable defence in law and it is otherwise an abuse of the process of the court. 11. I have considered the statement of defence dated 16th September 2024 filed by the appellant to the respondent’s suit and I note that the appellant raised several issues. First it denied that it had insured the motor vehicle registration number GKB 152R meaning that it was contending that there was no contract of indemnity between it and the alleged insured Rentco East Africa Limited, against whom the respondent obtained the judgment and which he sought to be enforced against the appellant herein. Further to the denial, the appellant pleaded that in case there was an insurance sticker or certificate indicating that the defendant had insured the said motor vehicle then it was a stranger to the same which must be a forgery or fraudulent. It set out the particulars of the alleged forgery and/or fraud. Second, that it had not been served with a statutory notice as required under the Act and if any notice was served then it was ineffective due to the denial that it had insured the subject motor vehicle. 12. There are several other issues such as the plaint not disclosing any cause of action because there is no nexus between the body of the plaint and the prayer for damages as there are no particulars on how the amount was arrived at, among others. I do not find these other issues to be serious contentions and I am satisfied that the learned trial magistrate ably considered them and correctly held that they were not triable. That leaves the first and second issues above as the ones to consider whether they are triable or not. 13. The learned trial magistrate found that the issues were not triable. 14. On the issue of forgery and or fraudulent acquisition of the insurance sticker and/or certificate of insurance, the learned trial magistrate found that the appellant had not provided any proof or supporting document as evidence against the respondent herein. She found further that the appellant had not filed a list of witnesses and there were no documents filed to support its case of forgery and fraud against the respondent. She found further that the respondent had on her part filed a letter from the Association of Kenya Insurers dated 3rd October 2024 where it was confirmed that the motor insurance certificate number B9334040 was allocated to the appellant. 15. In the case of DT Dobie & Co. (Kenya) Limited v Muchina & Another [1982] KLR 1 stated regarding the principles of striking out pleadings that: ' No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11298/eng@2026-01-14 3

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and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendments, it ought to be allowed to go forward for a Court of justice ought not to act in darkness without the full facts of a case before it'. 16. The Court of Appeal in the same case stated further that a triable issue is not necessarily one that the defendant would ultimately succeed on and need only be bona fide. 17. I think the charge by the appellant that the learned trial magistrate went beyond what she was required to confine herself to in considering the application is not without merit. This was not the point at which the court would consider how strong the defence was. That should be left for trial. The point to consider was whether the defence was bona fide. For instance, it may be true that the AKI had confirmed that the particular insurance certificate was genuine and was issued to the appellant. But then there was the issue of whether the appellant did issue it for the cover for motor vehicle registration Number GKB 152R. That issue needs proper and full interrogation at the hearing. It cannot be dismissed as disclosing no reasonable defence in law and/or being otherwise an abuse of the process of the court as found by the learned trial magistrate. 18. It has been held that one triable issue is sufficient to have a matter proceed for trial and not be summarily dismissed. 19. Having considered this appeal, I am satisfied that the learned trial Magistrate was in error in her finding that there was no triable issue raised and thereby striking out the defence. That finding is set aside and substituted with a finding dismissing the respondent’s application. 20. Consequently, I find that this appeal has merit and the same is allowed with costs to the appellant. 21. The matter is remitted to the magistrate’s court with directions that it proceeds for hearing of the case on the merits before a different magistrate from Hon. Joy Mutimba, SRM. 22. Mention before the Magistrates Court on duty or head of station on 28th January 2026 for reallocation. Orders accordingly. ANDAYI W. F. JUDGE WRITTEN, DATED AND SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 14TH DAY OF JANUARY, 2026. In the presence of: Kioko for the appellant. Juma (Ms) for the Respondent. Ummu: Court assistant ANDAYI W. F. JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11298/eng@2026-01-14 4

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