Oyuga v Madison General Insurance Company Ltd (Civil Case E565 of 2025) [2026] SCC 100 (KLR)

5. The circumstances that can give rise to an abuse of court process are indeed inexhaustive as was held in Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR). Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action as in the present case squarely fits into the definition of abuse of court process. The doctrine of res judicata operates as a bar multiplicity of suits and guarantees finality to litigation. It makes conclusive a final judgement between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit. I therefore find that the claim herein filed is res judicata as the matter directly and substantially in issue was conclusively heard and determined in Milimani Civil Case No. E112 of 2025 Carolyne Oyuga Vs Madison General Insuarance Co. Ltd between the same parties. 6. What then is a declaratory suit? 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, the court reasoned that the Small Claims Court lacks jurisdiction to hear declaratory suits. 7. It is trite law that jurisdiction is everything. Anything done without jurisdiction is a nullity, and such a finding operates retrospectively. In the famous case of Owners of the Motor Vessel “Lillian S” vs. Caltex Oil (Kenya) Ltd [1989] eKLR, the court held: “ Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 8. The Court of Appeal in the case of Phoenix of E.A Assurance Co. Ltd Vs S.M Thiga t/a Newspaper services {2019} eKLR expressed itself thus: “ Jurisdictionisprimordialineverysuit.Ithastobetherewhen thesuitis filed in the first place. If a suit is filed without jurisdiction, the only remedy is to withdraw it and file a compliant one in the court seized of jurisdiction. A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied. Without jurisdiction, the Court cannot confer jurisdiction to itself. The subordinate court could not therefore entertain the suit and allow only that part of the claim that was within its pecuniary jurisdiction.” 9. 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 and does not contemplate declaratory suits as matters that this court can hear. I place further reliance on Kenya Orient Insurance Limited v Otieno (Civil Appeal E166 of 2023) [2024] KEHC 7637 (KLR) (25 June 2024) (Judgment) wherein the court held as much. 10. Moreover, 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 Parties (Constitutional Petition 379 of 2017) [2022] KEHC 17072 (KLR), reasoning that there can be https://new.kenyalaw.org/akn/ke/judgment/scc/2026/100/eng@2026-04-21 2

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no legislation by reference. Legislation must and should be express and clear. This court can therefore not infer declaratory suits to be provided for under section 12 of the Small Claims Court Act when they are not expressly provided for. 11. Therefore, since this court lacks jurisdiction to hear the claim which is additionally outrightly an abuse of court process, the instant application is rendered incompetent. The claim herein is therefore struck ofi with costs to the Respondent/Applicant. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE 21st DAY OF APRIL 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; Mr Momanyi… for Claimant/Respondent; Ms Nyambane… for Respondent/Applicant C/A Sabina https://new.kenyalaw.org/akn/ke/judgment/scc/2026/100/eng@2026-04-21 3

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