Gilbert v Momarch Insurance Company Ltd (Commercial Case E143 of 2026) [2026] SCC 104 (KLR) (29 April 2026) (Judgment) Neutral citation: [2026] SCC 104 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MOMBASA COMMERCIAL CASE E143 OF 2026 TN MWANGEKA, RM APRIL 29, 2026 BETWEEN SINAMENYE GILBERT ............................................................................ CLAIMANT AND MOMARCH INSURANCE COMPANY LTD .................................. RESPONDENT JUDGMENT 1. The court has considered the record herein and the issue for determination is whether this court has the jurisdiction to entertain a declaratory suit such as the one filed. 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. 2. 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; 12. 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; https://new.kenyalaw.org/akn/ke/judgment/scc/2026/104/eng@2026-04-29 1
page 1 of 2
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. 3. 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 a declaratory suit is one that seeks to compel a judgement debtor’s insurer to settle the decree passed against the insured. The facts therein are similar to the instant case. 4. 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 no legislation by reference. Legislation must and should be express and clear 5. Therefore, as outlined earlier in this ruling, declaratory suits are not contemplated under section 12 of the Small Claims Court Act and cannot be so inferred. 6. Ultimately, the claim herein is stuck ofi with no orders as to costs. DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE 29TH DAY OF APRIL 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; Mr. Atancha…. for Claimant; N/A…… for Respondent C/A Sabina Signed By/for: HON. THERESA N. MWANGEKA https://new.kenyalaw.org/akn/ke/judgment/scc/2026/104/eng@2026-04-29 2
page 2 of 2