Madison Insurance Company Ltd v Ndonye [2022] KEHC 11401 (KLR)

Madison Insurance Company Ltd v Ndonye (Miscellaneous Civil Application E005 of 2021) [2022] KEHC 11401 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11401 (KLR)

Republic of Kenya

In the High Court at Makueni

Miscellaneous Civil Application E005 of 2021

GMA Dulu, J

June 9, 2022

Between

Madison Insurance Company Ltd

Applicant

and

Eita Muthambi Ndonye

Respondent

Ruling

1. In response to an Originating Summons filed by Madison Insurance Company Ltd dated January 22, 2021 and filed in on February 3, 2021, the respondent filed a replying affidavit as well a Notice of Preliminary Objection. This ruling relates to the preliminary objection.

2. The said preliminary objection dated April 21, 2021 and filed through counsel M/s Musembi Ndolo & Company for the respondent Eita Muthambi Ndonye, is in the following terms –1)The court lacks jurisdiction.2)The intended suit is premature, incompetent, bad in law and rather an abuse of court process.

3. The preliminary object was by consent of counsel canvassed by way of filing written submissions. I note however, that only submissions by Musembi Ndolo advocate for the respondent were filed. The applicant’s counsel Mwangangi Nzisa & Associates did not file any submissions.

4. The thrust of the submissions by counsel for the respondent is that, in terms of section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act (cap 405) this court lacks jurisdiction to extend time within which to file declaratory suit.

5. Counsel has relied on a High Court decision, that is APA Insurance Company Ltd vs Vincent Nthuku (2018) eKLR wherein G Odunga J stated inter alia, that –“21. It is clear that section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act does not provide for extension of the period for commencement of proceedings seeking declaratory orders.”

6. Considering the reasoning of the above persuasive court decision, and bearing in mind that prayer 1 of the Originating Summons, herein seeks an extension of time to file a declaratory suit, and since the applicant has not filed any written submissions, I uphold the preliminary objection herein and strike out the Originating Summons, as it is misconceived and cannot stand.

7. Consequently, and for the above reasons, I uphold the preliminary objection filed, and, strike out the Originating Summons herein, with costs to the respondent.

Delivered, signed & dated this 9th day of June, 2022, in open court at Makueni...............................GEORGE DULUJUDGE