Gitonga v Occidental Insurance Company Limited (Commercial Claim E16338 of 2024) [2025] SCC 60 (KLR) (9 September 2025) (Ruling) Neutral citation: [2025] SCC 60 (KLR) REPUBLIC OF KENYA IN THE MILIMANI SMALL CLAIMS COURT COMMERCIAL CLAIM E16338 OF 2024 TO OMONO, ADJ SEPTEMBER 9, 2025 BETWEEN MUTWIRI RONNY GITONGA ............................................................. CLAIMANT AND OCCIDENTAL INSURANCE COMPANY LIMITED ..................... RESPONDENT RULING 1. This ruling determines the Respondent/Applicant’s Notice of Preliminary Objection dated 25th August 2025. 2. The Respondent pleaded that this Honourable Court has no jurisdiction to entertain this suit against the Defendant/Insurer as it is statute-barred, premature, and discloses no reasonable cause of action. 3. It was also pleaded by the Respondent/Applicant that this claim is founded solely upon the statutory duty created under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act which can only be set in motion after a judgment has been obtained against the insured person. 4. On 26th August 2025, this court directed that the instant Preliminary Objection be canvassed by way of written submissions. The Respondent/Applicant chose to rely on the Preliminary Objection. The Claimant/Respondent did not file any written submissions. Analysis and Determination 5. This court has duly considered the contents of the instant Preliminary Objection. The issues for determination are whether the instant Preliminary Objection is merited. 6. A reading of the instant Preliminary Objection shows that the Respondent/Applicant was likening this claim to a declaratory suit filed under section 10 of the Insurance (Motor vehicles Third Party Risks) Act by an insured seeking their insurer to settle a decretal sum arising from a judgment against the insurer’s insured. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/60/eng@2025-09-09 1
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7. The Claimant/Respondent pleaded in his Statement of Claim dated 10th October 2024 that his motor vehicle registration number KBT 722 Z insured by the Respondent/Applicant under policy 13007010214362022 was involved in a road accident on 28th November 2023 with motor vehicle registration number KCS 942 H leading to damage to the Claimant/Respondent’s car. 8. Arising from that accident, the Claimant/Respondent repaired his motor vehicle at a cost of Kshs. 56,548/= which he now seeks to recover from the Respondent/Applicant. 9. The foregoing clearly shows that the claim herein is a claim by an insured seeking compensation from their insurer for damage to the insured’s motor vehicle. 10. Therefore, this claim, cannot be by any stretch of imagination, a claim under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. 11. This is purely a claim arising from a contract for supply of services as contemplated under section 10 (1) (a) of the Small Claims Court Act where an insured is seeking compensation from his insurer.(See Sanlam General Insurance Co. Ltd v M’Mbura (Civil Appeal E054 & E098 of 2024 (Consolidated)) [2025] KEHC 340 (KLR)) Determination 12. The upshot of the foregoing is that the Preliminary Objection dated 25th August 2025 is bereft of merit, hence the same sufiers the fate of dismissal. 13. There will be no order as to costs since the Preliminary Objection was undefended. 14. It is so ordered. READ, SIGNED AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 09TH DAY OF SEPTEMBER 2025 T. O. OMONO ADJUDICATOR In the presence of: https://new.kenyalaw.org/akn/ke/judgment/scc/2025/60/eng@2025-09-09 2
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