Kamau v Monarch Insurance Company Ltd (Civil Case E055 of 2026) [2026] SCC 98 (KLR) (14 April 2026) (Ruling) Neutral citation: [2026] SCC 98 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MOMBASA CIVIL CASE E055 OF 2026 TN MWANGEKA, RM APRIL 14, 2026 BETWEEN NAFTALI NJOGU KAMAU ..................................................................... CLAIMANT AND MONARCH INSURANCE COMPANY LIMITED ......................... RESPONDENT RULING 1. This ruling relates to a Preliminary Objection filed by the Respondent dated 11th March 2026 challenging the jurisdiction of this court to hear this claim on account of it being a declaratory suit. 2. The Claimant submits that while Section 12(1) of the Small Claims Court Act does not expressly list declaratory suits among the matters within the Court’s jurisdiction, this is not dispositive. Rule 25(1) of the Small Claims Court Rules, 2019, read together with Section 38(f) of the Civil Procedure Act, expressly authorizes this Court to enforce its own orders and decrees in accordance with the Civil Procedure Rules. This necessarily includes execution through declaratory suits because execution must be conducted in the court that issued the decree, unless the decree is transferred and declaratory suits for execution are not independent suits; they are an incident of execution. To hold otherwise would create an absurdity where the court is divested of the very power to realize the fruits of its own judgments. Reliance was placed on Jubilee Allianz General Insurance Kenya Limited v Benson Muhavi Butiya, Mombasa HCCA No. E613 of 2023 to buttress the claimant’s position. 3. The respondent on the other hand contends that this court has no jurisdiction to hear declaratory suits by virtue of section 12 of the Small Claims Court Act which outlines the nature of the claims that this court has jurisdiction over. Reliance was placed on Kenya Orient Insurance Limited v Otieno (Civil Appeal E166 of 2023) [2024] KEHC 7637 (KLR) (25 June 2024) (Judgment). 4. The Supreme Court in the case of Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013, [2014] eKLR endorsed the principles set out in the Mukisa Biscuit case https://new.kenyalaw.org/akn/ke/judgment/scc/2026/98/eng@2026-04-14 1
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regarding preliminary objection defining them as those that consist 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. 5. The instant Preliminary Objection as filed fits within the definition in the Mukisa Biscuits case as what is contended is the jurisdiction of the court to determine the suit. I will thus proceed to determine the same, considering the pleadings and rival submissions as filed by the parties herein. 6. I have considered the record herein and indeed the only issue for determination is whether this court has the jurisdiction to entertain a declaratory suit. It is trite law that jurisdiction is the foundation upon which any judicial authority rests. This principle has been firmly established in a long line of authorities, most notably in the celebrated decision of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, which stands as the locus classicus on the question of jurisdiction. 7. Jurisdiction can only be conferred upon a court by the constitution and statue. In this case the relevant constitutional provision establishing the Small Claims Court is Article 169 (1)(d) of the Constitution of Kenya, 2010 and for all intents and purposes, it is a subordinate court. Further, the Small Claims Court Act at Section 12, provides for the jurisdiction of the Court as follows; Nature of claims and pecuniary jurisdiction 1. subject to this Act, the rules and any other law, the court has jurisdiction to determine any civil claim relating to— a. a contract for sale and supply of goods or services; b. a contract relating to money held and received; c. liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property; d. compensation for personal injuries; and e. set-ofi and counterclaim under any contract. 2. Without prejudice to the generality of subsection (1), the court may exercise any other civil jurisdiction as may be conferred under any other written law. 3. The pecuniary jurisdiction of the court shall be limited to one million shillings. 4. Without prejudice to subsection (3), the Chief Justice may determine by notice in the Gazette such other pecuniary jurisdiction of the court as the Chief Justice thinks fit. 8. In Kenya Orient Insurance Limited v Otieno (Civil Appeal E166 of 2023) [2024] KEHC 7637 (KLR) (25 June 2024) (Judgment) the court defined a declaratory suit as one that seeks to compel a judgement debtor’s insurer to settle the decree passed against the insured. Further, that the Small Claims Court lacks jurisdiction to hear declaratory suits. The facts therein are similar to the instant case. 9. In Gathaiya v Attorney General & 2 others; & 176 Interested Parties (Petition E008 & E010 of 2024 (Consolidated)) [2026] KEHC 290 (KLR) the court while dealing with Rule 25(1) of the Small Claims Court Act Rules found the said provision to be ultra vires in its incorporation of the Civil Procedure Rules by way of reference. The court relied on the case of Katiba Institute & another v Attorney General & another; Independent Policing and Oversight Authority & 3 others (Interested https://new.kenyalaw.org/akn/ke/judgment/scc/2026/98/eng@2026-04-14 2
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Parties (Constitutional Petition 379 of 2017) [2022] KEHC 17072 (KLR), reasoning that there can be no legislation by reference. Legislation must and should be express and clear 10. Therefore, as outlined earlier in this ruling, declaratory suits are not contemplated under section 12 of the Small Claims Court Act and cannot so be inferred. 11. Ultimately, the Preliminary Objection dated 11th March 2026 succeeds, the claim herein is struck out, as this court lacks jurisdiction to hear the same, with no orders as to costs. DATED SIGNED AND READ VIRTUALLY AT THIKA THE………14TH …. DAY OF………APRIL… 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; ……Ms. Kihoro… for Claimant; ……Mr. Isoe…… for Respondent C/A Sabina SIGNED BY/FOR: THE JUDICIARY OF KENYA HON. THERESA N. MWANGEKA MOMBASA SMALL CLAIMS COURT SMALL CLAIMS COURT DATE: 2026-04-14 10:55:57 https://new.kenyalaw.org/akn/ke/judgment/scc/2026/98/eng@2026-04-14 3
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