A. THE ORIGINATING SUMMONS DATED 29TH JANUARY, 2024.
1. The Applicant’s originating summons dated 29th January, 2024 is expressed to be brought under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya and Section 3A of the Civil Procedure Act and all other enabling provisions of law and seeks the following orders:
a. THAT That this Honourable Court do grant leave to the Applicant to file declaratory suits against the Respondents out of time.
b. That all the proceedings in Maseno Civil Suits No.31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77,78, 79 all of 2023 and any other suit/claim arising from the road traffic accident of 17th February, 2023 involving motor vehicles registrations numbers KDA 923P, KCW 059T and UAQ 845J along Busia-Kisumu Road at Ojalla area within Kisumu County be stayed pending the hearing and determination of this suit.
c. That all the proceedings in Maseno Civil Suits No.31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77,78, 79 all of 2023 and any other suit/claim arising from the road traffic accident of 17th February, 2023 involving motor vehicles registrations numbers KDA 923P, KCW 059T and UAQ 845J along Busia-Kisumu Road at Ojalla area within Kisumu County be stayed pending the hearing and determination of the intended declaratory suits.
d. THAT the court be pleased to make any further orders as it deems fit and just in the circumstances.
2. The application is premised on the grounds set out on its face. The Applicant contends that it insured the 1st Respondent in respect of motor vehicle registration number KDA 923P, a school bus, which was involved in a road traffic accident on 17th February, 2023, resulting in claims being filed by the 2nd to 52nd Respondents in the above suits and other claims arising from the said accident.
3. The Applicant asserts that following the institution of the above suits, the Applicant instructed Counsel to represent the 1st Respondent in accordance with the terms of the insurance policy, the 1st Respondent having been insured at the time of the accident.
4. The Applicant further avers that owing to the multiplicity of claims arising from the accident, the Applicant undertook investigations which revealed that the 1st Respondent had, contrary to the terms and conditions of the insurance policy, used the insured motor vehicle to ferry passengers for hire and reward.
5. The Applicant contends that under the insurance contract, motor vehicle registration number KDA 923P was insured as a school bus and was only authorized to transport students. The vehicle was therefore not authorized to carry passengers for hire and reward.
6. The Applicant further contends that the claimants in the above suits were not students but third parties who had hired the 1st Respondent’s vehicle to transport them to a function and that the 1st Respondent knowingly used the vehicle in a manner that was contrary to the terms of the insurance policy.
7. Thus then, the Applicant avers that by permitting the vehicle to be used for hire and reward, the 1st Respondent breached the terms of the insurance policy and thereby gave rise to a basis upon which the Applicant seeks to challenge its liability under the policy.
8. The Applicant states that the investigations and verification of the claims by the Respondents took longer than anticipated and that by the time it confirmed that the 1st Respondent had been using the vehicle contrary to the policy terms, the period prescribed under Section 10(4) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 for instituting declaratory proceedings had lapsed.
9. In the circumstances, the Applicant seeks leave to commence declaratory proceedings out of time and prays that proceedings in the above suits and any other claims arising from the accident of 17th February, 2023 be stayed pending the institution and determination of the intended declaratory proceedings.
B. THE SUPPORTING AFFIDAVIT.
10. The application is supported by the affidavit of Hope Wambugu sworn on 31st January, 2024. The deponent describes herself as a Legal Officer in the employment of the Applicant, who deposes that the Applicant is the insurer of the 1st Respondent’s motor vehicle registration number KDA 923P and is consequently responsible for meeting any liabilities arising under the policy, including arranging and funding the legal representation of the 1st Respondent in claims brought by third parties.
11. The deponent avers that by virtue of her position as Legal Officer, she is conversant with the facts of the matter, coordinates the handling of legal claims on behalf of the Applicant and has authority to swear the affidavit on the Applicant’s behalf.
12. She states that the Applicant insured the 1st Respondent’s vehicle under Policy No. 556/835/1/000769/2022/01 for the period running from 18th January, 2023 to 17th January, 2024 and that during the subsistence of the policy, the insured motor vehicle was involved in an accident that gave rise to the claims forming the subject of the above suits.
13. The deponent avers that upon service of the claims, the Applicant instructed advocates to represent the 1st Respondent in the above suits in accordance with its obligations under the insurance policy.
14. She further states that owing to the large number of claims arising from the accident, the Applicant undertook investigations which established that the insured motor vehicle, although insured as a school bus, was being used to ferry passengers for hire and reward contrary to the terms and conditions of the insurance policy.
15. According to the deponent, the policy only authorized the transportation of students and school-related activities and did not extend cover to members of the public travelling as fare-paying passengers.
16. The deponent further avers that the 2nd to 52nd Respondents, who are the Plaintiffs in the above suits, were not students but members of the public who had each paid Ksh.1,350/- to be transported from Bumala to Bomet to attend a revival and thanksgiving meeting when the accident occurred.
17. It is deposed that the investigations confirmed that the 1st Respondent knowingly used the vehicle in a manner inconsistent with the policy terms, thereby breaching the insurance contract and entitling the Applicant to seek to avoid liability under the policy.
18. The deponent states that due to the time taken in investigating the accident and verifying the numerous claims, the Applicant only confirmed the breach after the statutory period prescribed under Section 10(4) of the Insurance (Motor Vehicle Third Party Risks) Act, for instituting declaratory proceedings had lapsed.
19. She therefore contends that the Applicant requires leave of the Court to institute declaratory proceedings out of time and that unless the orders sought are granted, the Applicant will be deprived of the opportunity to challenge its liability under the policy notwithstanding the alleged breach by the 1st Respondent.
20. Finally, the deponent avers that no prejudice will be occasioned to the Respondents if the orders sought are granted since their claims will still be heard and determined on their merits, and that the interests of justice favour the grant of the prayers sought.
C. THE 1ST RESPONDENT’S GROUNDS OF OPPOSITION.
21. The 1st Respondent resists the application and to that end filed a statement of grounds of opposition dated 18th June, 2024.
22. The 1st Respondent takes the position that the Applicant’s claim falls outside the scope of Sections 27 and 28 of the Limitation of Actions Act, Cap. 22, as the dispute between the Applicant and the 1st Respondent is founded on contract and tort. Consequently, the Court lacks jurisdiction to extend time in the manner sought by the Applicant.
23. The 1st Respondent contends that the intended declaratory suit is an afterthought, noting that the Applicant has already entered appearance and filed defences in the suits which it now seeks to stay.
24. The 1st Respondent further contends that the Applicant did not issue any notice to the 1st Respondent regarding the alleged non-disclosure of material facts or breach of the insurance policy and is therefore precluded from relying on the same.
25. It is the 1st Respondent’s position that the application has been brought after inordinate and unexplained delay and that the Applicant has failed to furnish a sufficient explanation for its failure to act within the prescribed timelines.
26. In the alternative, the 1st Respondent argues that the Applicant has failed to satisfy the statutory requirements for the grant of leave under Section 28 of the Limitation of Actions Act and is therefore not entitled to the orders sought.
27. For the foregoing reasons, the 1st Respondent maintains that the originating summons dated 29th January, 2024 is devoid of merit and ought to be dismissed with costs.
D. THE 2ND TO 52ND RESPONDENTS’ GROUNDS OF OPPOSITION AND REPLYING AFFIDAVIT.
28. The 2nd to 52nd Respondents oppose the application through grounds of opposition dated 12th March, 2024 and a replying affidavit sworn by Millicent Oluoch on 26th July, 2024.
29. The 2nd to 52nd Respondents contend that the application is frivolous, vexatious and an abuse of the court process, brought solely with the intention of delaying and obstructing the hearing and determination of the suits before the Maseno Court.
30. They further state that the suits before the Maseno Court are founded on the tort of negligence arising from a road traffic accident, and that the Applicant, not being a party to those proceedings, has no legal standing or basis upon which to intervene, control or seek to stay the said suits.
31. It is their position that the dispute between the Applicant and the 1st Respondent is purely contractual in nature, arising from a contract of insurance, while the suits before the Maseno Court are tortious claims by third-party victims. They contend that the two causes of action are distinct, independent and capable of being determined separately without one affecting the other.
32. The 2nd to 52nd Respondents further contend that this Court lacks jurisdiction to extend time under Section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act, as the statutory period within which the Applicant ought to have instituted declaratory proceedings had long expired and cannot be revived by the Court.
33. They further argue that the procedure adopted by the Applicant is unknown in law, contending that the ex parte procedure under Order 37 Rule 3 of the Civil Procedure Rules is only applicable to applications under Section 38 of the Limitation of Actions Act, and not to applications premised on Section 10(4) of Cap. 405. Accordingly, the application is said to be fatally defective and incompetent.
34. It is also their contention that Section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act does not envisage or permit the stay of ongoing proceedings in the manner sought by the Applicant, and that the only statutory requirement is that any declaratory proceedings ought to have been instituted within the prescribed statutory timeline. Having failed to do so, the Applicant is said to lack locus standi and audience before this Court to seek both leave and stay of the suits before the Maseno Court.
35. The 2nd to 52nd Respondents further contend that granting the orders sought would have the effect of defeating or interfering with accrued rights of the victims who have already instituted claims before the Maseno Court, and that the Court ought not to exercise its discretion in a manner that prejudices substantive justice in favour of procedural indulgence.
36. They also contend that the application is speculative, premature and pre-emptive, as it is based on assumptions that liability will inevitably be found against the 1st Respondent in the suits before the Maseno Court. They argue that the suits may ultimately be dismissed, or liability may be apportioned differently, or recovered from other tortfeasors, rendering the Applicant’s fears purely hypothetical.
37. It is their further position that the Applicant will suffer no prejudice if the application is dismissed, as the suits before the Maseno Court are still at an early stage of hearing, and in any event, any question of liability against the Applicant can only arise after final determination of those suits and the institution of a proper declaratory suit in accordance with the law.
38. They therefore maintain that the application does not meet the threshold for the grant of the orders sought, either in law or in equity, and is otherwise an abuse of the court process that ought to be dismissed with costs.
39. In the Replying Affidavit, the deponent, who is the 2nd Respondent, deposes that she duly authorized to swear the affidavit on behalf of the 3rd to 52nd Respondents, and that she is conversant with the facts giving rise to the application.
40. The 2nd Respondent avers that the application is overtaken by events as the suits before the Maseno Court have already been fixed for hearing, and that the prayers sought would have the effect of derailing the hearing dates already allocated by the Court.
41. She further deposes that the application is brought in bad faith and constitutes an abuse of the court process, as the Applicant is simultaneously instructing advocates to defend the 1st Respondent in the suits before the Maseno Court while at the same time seeking to institute proceedings aimed at avoiding liability arising from the same claims.
42. It is the 2nd Respondent’s deposition that the Applicant’s conduct amounts to approbation and reprobation, as it seeks to benefit from defending the suits before the Maseno Court while also attempting to avoid any adverse outcome through the present application.
43. She further avers that the Applicant’s assertion that investigations took long is misleading, as the accident occurred on 17th February 2023, investigations were conducted shortly thereafter, and the investigation report was ready by March, 2023, well before the institution of the suits before the Maseno Court.
44. The deponent deposes that despite having knowledge of the investigation findings as early as March, 2023, the Applicant failed to institute declaratory proceedings within time and instead waited for an inordinate period of over ten months before filing the present application, demonstrating indolence and bad faith.
45. The 2nd to 52nd Respondents further contend that even if the Applicant were to obtain the declaratory orders sought, the same would not automatically defeat liability in the suits before the Maseno Court without compliance with the statutory notice requirements under the Insurance (Motor Vehicles Third Party Risks) Act.
46. They also maintain that the application is speculative and devoid of merit as liability against the Applicant, if any, is contingent upon the outcome of the suits before the Maseno Court and a properly instituted declaratory suit thereafter.
47. They therefore reiterate that the application is an abuse of the court process, brought to delay justice to the victims, and ought to be dismissed with costs.
E. THE APPLICANT’S SUBMISSIONS.
48. In its submissions, the Applicant proffers that the originating summons is properly anchored on the grounds set out on its face and is supported by the affidavit sworn by Hope Wambugu, wherein it is deponed that a road traffic accident occurred on 17th February, 2023 involving motor vehicles registration numbers KDA 923P, KCW 059T and UAQ 845J along Busia–Kisumu Road at Ojalla area within Kisumu County.
49. It is further submitted that motor vehicle KDA 923P was insured by the Applicant under Insurance Policy No. 556/835/1/000769/2022/01 in respect of third-party risks.
50. The Applicant submits that under the terms of the insurance contract, motor vehicle KDA 923P, being a school bus, was strictly to be used exclusively for the transportation of students and for school-related activities only, and was not authorized to carry members of the public or to be used for hire and reward. It is contended that the 1st Respondent breached the said policy by using the motor vehicle to carry fare-paying passengers at the time of the accident.
51. It is further submitted that the Applicant only became aware of the alleged breach upon undertaking investigations into the circumstances of the accident, which included obtaining extracts of the police occurrence book and a police abstract, which revealed that approximately 52 injured persons were being carried in the motor vehicle as passengers for hire and reward.
52. The Applicant reiterates that the 1st Respondent was at all material times aware of the limitations of the insurance cover, namely that it only extended to school-related transportation of students, and that any deviation from this constituted a breach entitling the Applicant to disclaim liability.
53. With regard to the 1st Respondent’s the contention that the application is outside the purview of Section 27 of the Limitation of Actions Act, in that the cause of action is contractual in nature and therefore incapable of extension of time under that provision and the 2nd to 52nd Respondents’ position that the application is frivolous, vexatious an abuse of the court process and that the Court lacks jurisdiction under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, as the statutory timelines have lapsed, the Applicant submits that the present application is properly brought under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, and not under Section 27 of the Limitation of Actions Act, as the latter applies strictly to actions founded in tort, whereas the intended declaratory proceedings arise from breach of an insurance contract.
54. The Applicant further submits that Section 27 of the Limitation of Actions Act does not confer jurisdiction to extend time in matters founded on contract, and that the intended proceedings arise purely from contractual obligations under the insurance policy and not from tortious liability.
55. It is the Applicant’s submission that at the time the statutory timelines lapsed, it was not aware that the insured vehicle was being used contrary to the policy terms, and only discovered the alleged breach after completion of investigations. By that time, it is contended, the statutory fourteen (14) days within which to repudiate liability and the three (3) months within which to institute declaratory proceedings under Section 10(4) of Cap 405 had already expired.
56. The Applicant relies on the decision in Jubilee Insurance Company of Kenya Limited v Nelson Njenga Munene & Others [2018] eKLR, where the Court held that the provisions of the Limitation of Actions Act do not apply to applications brought under Section 10 of Cap 405. The Applicant also relies on Xplico Insurance Company v Simon Mkalla Ndegwa & 2 Others [2014] eKLR, where the Court allowed an insurer’s application for extension of time upon being satisfied that there was adequate explanation for the delay in filing a declaratory suit.
57. The Applicant further submits that in Xplico Insurance Company v Simon Mkalla Ndegwa, the Court (Kasango J.) held that where sufficient explanation is provided for delay, the Court may grant leave to institute declaratory proceedings out of time together with consequential orders of stay.
58. The Applicant also cites Republic v Public Administrative Review Board & Another [2019] eKLR, where Mativo J. stated that the Court’s discretion must be exercised judicially and with regard to the circumstances of each case, including the need to do substantive justice.
59. The Applicant further relies on Rosco Kibara Mangaara v Deputy County Commissioner Tharaka South Subcounty & 3 Others; Paul Kirimi Kiria (Interested Party) [2021] eKLR, where the Court held that an Applicant must demonstrate good reason for delay and that courts should consider the period of delay and explanation offered.
60. The Applicant additionally submits that Section 10(4) of Cap 405 allows an insurer to avoid liability upon obtaining a declaration that it is entitled to avoid the policy on grounds such as non-disclosure or misrepresentation.
61. It is the Applicant’s submission that the Respondents will suffer no prejudice if the orders sought are granted, as their claims will still be heard on merits in the suits before the Maseno Court.
62. The Applicant further submits that the contractual dispute between itself and the 1st Respondent is distinct from the tort claims before the Maseno Court and can be determined separately.
63. The Applicant contends that it acted promptly upon discovering the alleged breach and that any delay was due to the need to verify numerous claims arising from the accident.
64. The Applicant therefore urges the Court to exercise its discretion in its favour and grant leave to institute declaratory proceedings out of time and stay the suits pending determination of the intended declaratory suit.
F. THE 1ST RESPONDENT’S SUBMISSIONS.
65. In its submissions, the 1st Respondent identifies one central issue for determination, namely whether the Applicant is entitled to orders extending time within which to institute declaratory proceedings against the 1st Respondent.
66. The 1st Respondent submits that the Applicant is not entitled to an order for extension of time to file a declaratory suit, as such a suit does not fall within the categories contemplated under Section 27 of the Limitation of Actions Act.
67. It is argued that Section 27 of the Limitation of Actions Act only permits extension of time in limited circumstances relating to actions founded on negligence, nuisance, or breach of duty where damages are claimed in respect of personal injuries, and does not extend to declaratory proceedings such as the one contemplated by the Applicant.
68. The 1st Respondent relies on the decision in Corporate Insurance Co. Ltd v Reuben Murigi Mwangi [2018] eKLR, where the Court held that:
“Section 27 of Cap 22 provides for extension of limitation period but only in cases of ignorance of material facts in actions for negligence, nuisance or breach of duty, where damages are claimed in respect of personal injuries of any person. A declaratory suit as the one herein, is not included among them…”.
69. The 1st Respondent submits that this authority is clear that declaratory suits are not amenable to extension of time under the Limitation of Actions Act.
70. The 1st Respondent further relies on the case of Madison Insurance Co. Kenya Ltd v David Kibe Mathenge [2017] eKLR, for the proposition that Section 10(4) of Cap 405 prescribes a strict three-month period within which an insurer must institute declaratory proceedings after commencement of the compensation suit, and that the statute provides no mechanism for extension of that period. The 1st Respondent submits that this authority confirms that the statutory timelines under Section 10(4) of Cap 405 are strict and not subject to extension by the Court.
71. It is further submitted that the Applicant has failed to provide a satisfactory explanation for its failure to institute the declaratory suit within the prescribed statutory period, notwithstanding that it had already entered appearance and filed defences in the suits on behalf of the insured.
72. The 1st Respondent therefore contends that the application does not fall within the discretionary jurisdiction of the Court, and that Article 159(2)(d) of the Constitution cannot be invoked to defeat clear statutory provisions governing limitation of actions.
73. In conclusion, the 1st Respondent submits that the Applicant is not entitled to leave to institute a declaratory suit out of time, as the Court lacks jurisdiction to extend time in the circumstances of the case, and urges that the application be dismissed with costs.
74. The 2nd to 52nd Respondents’ submissions raise issues of jurisdiction, limitation, abuse of process and the relationship between the insurance dispute and the tort claims.
75. The 2nd to 52nd Respondents submit that the central question for determination is whether the Court can intervene to stay the suits before the Maseno Court, which are founded on the tort of negligence, in order to allow the Applicant pursue a separate dispute based on a contract of insurance. They contend that there is no commonality between the two causes of action and that the Applicant is effectively seeking to delay the tort claims to the prejudice of the claimants.
76. They further identify the issues for determination as: (a) whether the Court should extend time for the Applicant to file declaratory proceedings; (b) whether the Court should stay the suits before the Maseno Court pending determination of the intended declaratory suit; and (c) who should bear costs.
77. On extension of time, the 2nd to 52nd Respondents submit that the Court lacks jurisdiction to extend time under Section 10(4) of Cap 405, as that provision contains no enabling clause for extension. They argue that jurisdiction to extend time must be expressly conferred by statute.
78. They rely on the wording of Section 10(4) of Cap 405, emphasizing that it sets a strict statutory timeline for an insurer to obtain a declaration, and that failure to comply extinguishes the right. They submit that the Applicant’s attempt to extend time is therefore legally unsustainable.
79. The 2nd to 52nd Respondents rely on the decision in APA Insurance Company v Vincent Nthuka (Odunga J., as he then was), where the Court held that Section 10(4) does not provide for extension of time and observed that the statute does not authorize the extension of the period stipulated for the commencement of declaratory proceedings and that, in the absence of statutory jurisdiction, the Court’s inherent powers cannot be invoked to confer a jurisdiction that does not otherwise exist.
80. They submit that this authority is binding and confirms that the Court cannot invoke inherent jurisdiction under Section 3A of the Civil Procedure Act to extend statutory timelines.
81. They further rely on Industrial & Commercial Development Corporation v Otachi [1977] KLR 101 and Elephant Soap Factory Ltd v Nahashon Mwangi & Sons Nairobi HCCC No. 913 of 1971, for the proposition that inherent jurisdiction cannot be invoked to override express statutory provisions.
82. The 2nd to 52nd Respondents also submit that Order 50 Rule 4 of the Civil Procedure Rules is inapplicable, as it only governs computation of time under the Rules or court orders, and not statutory limitation periods under Cap 405.
83. They rely on the case of Mokombo Ole Simel & Others v County Council of Narok & Others Nairobi HCCC (unreported), where the Court held that where limitation is imposed by statute, procedural rules cannot be invoked to extend time, and underscored that procedural rules, being subordinate legislation, cannot supersede the provisions of a statute. It further stated that the judicial duty is confined to interpreting and enforcing the law in its current form, leaving any legislative changes to Parliament.
84. The 51 Respondents further submit that Article 159(2)(d) of the Constitution cannot be invoked to circumvent clear statutory provisions. They rely on APA Insurance Company Limited v Vincent Nthuka (supra), where the Court emphasized that Article 159(2)(d) cannot be employed to circumvent clear statutory provisions, particularly where the effect would be to revive a claim that has been expressly extinguished by legislation.
85. They further cite the Supreme Court decision in Raila Odinga v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR, where the Court observed that Article 159(2)(d) was not enacted to exempt litigants from compliance with procedural imperatives, but rather to ensure that procedural rules serve, rather than hinder, the administration of substantive justice.
86. On the policy rationale for limitation, they cite the case of Dhanesvar V Mehta v Manilal M Shah (Court of Appeal for East Africa), where the Court emphasized that statutory limitation periods serve the public interest by ensuring finality in litigation and preventing the prosecution of stale claims. It further held that, once the limitation period expires, the law bars the remedy notwithstanding the strength or merits of the underlying claim.
87. They submit that even if the Court had jurisdiction, the Applicant has failed to meet the legal threshold for extension of time. They rely on Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231, where the Court set out guiding principles for extension of time as the length of delay, the reason for delay, the chances of success and prejudice to the Respondent.
88. They also rely on the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, where the Court emphasized that a party seeking extension of time must provide a credible and satisfactory explanation for the delay, as such an explanation is the primary basis upon which the Court may exercise its discretion in that party’s favour.
89. The 51 Respondents argue that declaratory proceedings could have been filed immediately upon receipt of the investigator’s report, citing APA Insurance Company Limited v Vincent Nthuka (supra), where the Court observed that declaratory proceedings can lawfully be instituted prior to the commencement of a suit by an injured party seeking damages.
90. The 2nd to 52nd Respondents submit that the
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1. The Applicant’s originating summons dated 29th January, 2024 is expressed to be brought under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya and Section 3A of the Civil Procedure Act and all other enabling provisions of law and seeks the following orders:
a. THAT That this Honourable Court do grant leave to the Applicant to file declaratory suits against the Respondents out of time.
b. That all the proceedings in Maseno Civil Suits No.31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77,78, 79 all of 2023 and any other suit/claim arising from the road traffic accident of 17th February, 2023 involving motor vehicles registrations numbers KDA 923P, KCW 059T and UAQ 845J along Busia-Kisumu Road at Ojalla area within Kisumu County be stayed pending the hearing and determination of this suit.
c. That all the proceedings in Maseno Civil Suits No.31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77,78, 79 all of 2023 and any other suit/claim arising from the road traffic accident of 17th February, 2023 involving motor vehicles registrations numbers KDA 923P, KCW 059T and UAQ 845J along Busia-Kisumu Road at Ojalla area within Kisumu County be stayed pending the hearing and determination of the intended declaratory suits.
d. THAT the court be pleased to make any further orders as it deems fit and just in the circumstances.
2. The application is premised on the grounds set out on its face. The Applicant contends that it insured the 1st Respondent in respect of motor vehicle registration number KDA 923P, a school bus, which was involved in a road traffic accident on 17th February, 2023, resulting in claims being filed by the 2nd to 52nd Respondents in the above suits and other claims arising from the said accident.
3. The Applicant asserts that following the institution of the above suits, the Applicant instructed Counsel to represent the 1st Respondent in accordance with the terms of the insurance policy, the 1st Respondent having been insured at the time of the accident.
4. The Applicant further avers that owing to the multiplicity of claims arising from the accident, the Applicant undertook investigations which revealed that the 1st Respondent had, contrary to the terms and conditions of the insurance policy, used the insured motor vehicle to ferry passengers for hire and reward.
5. The Applicant contends that under the insurance contract, motor vehicle registration number KDA 923P was insured as a school bus and was only authorized to transport students. The vehicle was therefore not authorized to carry passengers for hire and reward.
6. The Applicant further contends that the claimants in the above suits were not students but third parties who had hired the 1st Respondent’s vehicle to transport them to a function and that the 1st Respondent knowingly used the vehicle in a manner that was contrary to the terms of the insurance policy.
7. Thus then, the Applicant avers that by permitting the vehicle to be used for hire and reward, the 1st Respondent breached the terms of the insurance policy and thereby gave rise to a basis upon which the Applicant seeks to challenge its liability under the policy.
8. The Applicant states that the investigations and verification of the claims by the Respondents took longer than anticipated and that by the time it confirmed that the 1st Respondent had been using the vehicle contrary to the policy terms, the period prescribed under Section 10(4) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 for instituting declaratory proceedings had lapsed.
9. In the circumstances, the Applicant seeks leave to commence declaratory proceedings out of time and prays that proceedings in the above suits and any other claims arising from the accident of 17th February, 2023 be stayed pending the institution and determination of the intended declaratory proceedings.
B. THE SUPPORTING AFFIDAVIT.
10. The application is supported by the affidavit of Hope Wambugu sworn on 31st January, 2024. The deponent describes herself as a Legal Officer in the employment of the Applicant, who deposes that the Applicant is the insurer of the 1st Respondent’s motor vehicle registration number KDA 923P and is consequently responsible for meeting any liabilities arising under the policy, including arranging and funding the legal representation of the 1st Respondent in claims brought by third parties.
11. The deponent avers that by virtue of her position as Legal Officer, she is conversant with the facts of the matter, coordinates the handling of legal claims on behalf of the Applicant and has authority to swear the affidavit on the Applicant’s behalf.
12. She states that the Applicant insured the 1st Respondent’s vehicle under Policy No. 556/835/1/000769/2022/01 for the period running from 18th January, 2023 to 17th January, 2024 and that during the subsistence of the policy, the insured motor vehicle was involved in an accident that gave rise to the claims forming the subject of the above suits.
13. The deponent avers that upon service of the claims, the Applicant instructed advocates to represent the 1st Respondent in the above suits in accordance with its obligations under the insurance policy.
14. She further states that owing to the large number of claims arising from the accident, the Applicant undertook investigations which established that the insured motor vehicle, although insured as a school bus, was being used to ferry passengers for hire and reward contrary to the terms and conditions of the insurance policy.
15. According to the deponent, the policy only authorized the transportation of students and school-related activities and did not extend cover to members of the public travelling as fare-paying passengers.
16. The deponent further avers that the 2nd to 52nd Respondents, who are the Plaintiffs in the above suits, were not students but members of the public who had each paid Ksh.1,350/- to be transported from Bumala to Bomet to attend a revival and thanksgiving meeting when the accident occurred.
17. It is deposed that the investigations confirmed that the 1st Respondent knowingly used the vehicle in a manner inconsistent with the policy terms, thereby breaching the insurance contract and entitling the Applicant to seek to avoid liability under the policy.
18. The deponent states that due to the time taken in investigating the accident and verifying the numerous claims, the Applicant only confirmed the breach after the statutory period prescribed under Section 10(4) of the Insurance (Motor Vehicle Third Party Risks) Act, for instituting declaratory proceedings had lapsed.
19. She therefore contends that the Applicant requires leave of the Court to institute declaratory proceedings out of time and that unless the orders sought are granted, the Applicant will be deprived of the opportunity to challenge its liability under the policy notwithstanding the alleged breach by the 1st Respondent.
20. Finally, the deponent avers that no prejudice will be occasioned to the Respondents if the orders sought are granted since their claims will still be heard and determined on their merits, and that the interests of justice favour the grant of the prayers sought.
C. THE 1ST RESPONDENT’S GROUNDS OF OPPOSITION.
21. The 1st Respondent resists the application and to that end filed a statement of grounds of opposition dated 18th June, 2024.
22. The 1st Respondent takes the position that the Applicant’s claim falls outside the scope of Sections 27 and 28 of the Limitation of Actions Act, Cap. 22, as the dispute between the Applicant and the 1st Respondent is founded on contract and tort. Consequently, the Court lacks jurisdiction to extend time in the manner sought by the Applicant.
23. The 1st Respondent contends that the intended declaratory suit is an afterthought, noting that the Applicant has already entered appearance and filed defences in the suits which it now seeks to stay.
24. The 1st Respondent further contends that the Applicant did not issue any notice to the 1st Respondent regarding the alleged non-disclosure of material facts or breach of the insurance policy and is therefore precluded from relying on the same.
25. It is the 1st Respondent’s position that the application has been brought after inordinate and unexplained delay and that the Applicant has failed to furnish a sufficient explanation for its failure to act within the prescribed timelines.
26. In the alternative, the 1st Respondent argues that the Applicant has failed to satisfy the statutory requirements for the grant of leave under Section 28 of the Limitation of Actions Act and is therefore not entitled to the orders sought.
27. For the foregoing reasons, the 1st Respondent maintains that the originating summons dated 29th January, 2024 is devoid of merit and ought to be dismissed with costs.
D. THE 2ND TO 52ND RESPONDENTS’ GROUNDS OF OPPOSITION AND REPLYING AFFIDAVIT.
28. The 2nd to 52nd Respondents oppose the application through grounds of opposition dated 12th March, 2024 and a replying affidavit sworn by Millicent Oluoch on 26th July, 2024.
29. The 2nd to 52nd Respondents contend that the application is frivolous, vexatious and an abuse of the court process, brought solely with the intention of delaying and obstructing the hearing and determination of the suits before the Maseno Court.
30. They further state that the suits before the Maseno Court are founded on the tort of negligence arising from a road traffic accident, and that the Applicant, not being a party to those proceedings, has no legal standing or basis upon which to intervene, control or seek to stay the said suits.
31. It is their position that the dispute between the Applicant and the 1st Respondent is purely contractual in nature, arising from a contract of insurance, while the suits before the Maseno Court are tortious claims by third-party victims. They contend that the two causes of action are distinct, independent and capable of being determined separately without one affecting the other.
32. The 2nd to 52nd Respondents further contend that this Court lacks jurisdiction to extend time under Section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act, as the statutory period within which the Applicant ought to have instituted declaratory proceedings had long expired and cannot be revived by the Court.
33. They further argue that the procedure adopted by the Applicant is unknown in law, contending that the ex parte procedure under Order 37 Rule 3 of the Civil Procedure Rules is only applicable to applications under Section 38 of the Limitation of Actions Act, and not to applications premised on Section 10(4) of Cap. 405. Accordingly, the application is said to be fatally defective and incompetent.
34. It is also their contention that Section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act does not envisage or permit the stay of ongoing proceedings in the manner sought by the Applicant, and that the only statutory requirement is that any declaratory proceedings ought to have been instituted within the prescribed statutory timeline. Having failed to do so, the Applicant is said to lack locus standi and audience before this Court to seek both leave and stay of the suits before the Maseno Court.
35. The 2nd to 52nd Respondents further contend that granting the orders sought would have the effect of defeating or interfering with accrued rights of the victims who have already instituted claims before the Maseno Court, and that the Court ought not to exercise its discretion in a manner that prejudices substantive justice in favour of procedural indulgence.
36. They also contend that the application is speculative, premature and pre-emptive, as it is based on assumptions that liability will inevitably be found against the 1st Respondent in the suits before the Maseno Court. They argue that the suits may ultimately be dismissed, or liability may be apportioned differently, or recovered from other tortfeasors, rendering the Applicant’s fears purely hypothetical.
37. It is their further position that the Applicant will suffer no prejudice if the application is dismissed, as the suits before the Maseno Court are still at an early stage of hearing, and in any event, any question of liability against the Applicant can only arise after final determination of those suits and the institution of a proper declaratory suit in accordance with the law.
38. They therefore maintain that the application does not meet the threshold for the grant of the orders sought, either in law or in equity, and is otherwise an abuse of the court process that ought to be dismissed with costs.
39. In the Replying Affidavit, the deponent, who is the 2nd Respondent, deposes that she duly authorized to swear the affidavit on behalf of the 3rd to 52nd Respondents, and that she is conversant with the facts giving rise to the application.
40. The 2nd Respondent avers that the application is overtaken by events as the suits before the Maseno Court have already been fixed for hearing, and that the prayers sought would have the effect of derailing the hearing dates already allocated by the Court.
41. She further deposes that the application is brought in bad faith and constitutes an abuse of the court process, as the Applicant is simultaneously instructing advocates to defend the 1st Respondent in the suits before the Maseno Court while at the same time seeking to institute proceedings aimed at avoiding liability arising from the same claims.
42. It is the 2nd Respondent’s deposition that the Applicant’s conduct amounts to approbation and reprobation, as it seeks to benefit from defending the suits before the Maseno Court while also attempting to avoid any adverse outcome through the present application.
43. She further avers that the Applicant’s assertion that investigations took long is misleading, as the accident occurred on 17th February 2023, investigations were conducted shortly thereafter, and the investigation report was ready by March, 2023, well before the institution of the suits before the Maseno Court.
44. The deponent deposes that despite having knowledge of the investigation findings as early as March, 2023, the Applicant failed to institute declaratory proceedings within time and instead waited for an inordinate period of over ten months before filing the present application, demonstrating indolence and bad faith.
45. The 2nd to 52nd Respondents further contend that even if the Applicant were to obtain the declaratory orders sought, the same would not automatically defeat liability in the suits before the Maseno Court without compliance with the statutory notice requirements under the Insurance (Motor Vehicles Third Party Risks) Act.
46. They also maintain that the application is speculative and devoid of merit as liability against the Applicant, if any, is contingent upon the outcome of the suits before the Maseno Court and a properly instituted declaratory suit thereafter.
47. They therefore reiterate that the application is an abuse of the court process, brought to delay justice to the victims, and ought to be dismissed with costs.
E. THE APPLICANT’S SUBMISSIONS.
48. In its submissions, the Applicant proffers that the originating summons is properly anchored on the grounds set out on its face and is supported by the affidavit sworn by Hope Wambugu, wherein it is deponed that a road traffic accident occurred on 17th February, 2023 involving motor vehicles registration numbers KDA 923P, KCW 059T and UAQ 845J along Busia–Kisumu Road at Ojalla area within Kisumu County.
49. It is further submitted that motor vehicle KDA 923P was insured by the Applicant under Insurance Policy No. 556/835/1/000769/2022/01 in respect of third-party risks.
50. The Applicant submits that under the terms of the insurance contract, motor vehicle KDA 923P, being a school bus, was strictly to be used exclusively for the transportation of students and for school-related activities only, and was not authorized to carry members of the public or to be used for hire and reward. It is contended that the 1st Respondent breached the said policy by using the motor vehicle to carry fare-paying passengers at the time of the accident.
51. It is further submitted that the Applicant only became aware of the alleged breach upon undertaking investigations into the circumstances of the accident, which included obtaining extracts of the police occurrence book and a police abstract, which revealed that approximately 52 injured persons were being carried in the motor vehicle as passengers for hire and reward.
52. The Applicant reiterates that the 1st Respondent was at all material times aware of the limitations of the insurance cover, namely that it only extended to school-related transportation of students, and that any deviation from this constituted a breach entitling the Applicant to disclaim liability.
53. With regard to the 1st Respondent’s the contention that the application is outside the purview of Section 27 of the Limitation of Actions Act, in that the cause of action is contractual in nature and therefore incapable of extension of time under that provision and the 2nd to 52nd Respondents’ position that the application is frivolous, vexatious an abuse of the court process and that the Court lacks jurisdiction under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, as the statutory timelines have lapsed, the Applicant submits that the present application is properly brought under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, and not under Section 27 of the Limitation of Actions Act, as the latter applies strictly to actions founded in tort, whereas the intended declaratory proceedings arise from breach of an insurance contract.
54. The Applicant further submits that Section 27 of the Limitation of Actions Act does not confer jurisdiction to extend time in matters founded on contract, and that the intended proceedings arise purely from contractual obligations under the insurance policy and not from tortious liability.
55. It is the Applicant’s submission that at the time the statutory timelines lapsed, it was not aware that the insured vehicle was being used contrary to the policy terms, and only discovered the alleged breach after completion of investigations. By that time, it is contended, the statutory fourteen (14) days within which to repudiate liability and the three (3) months within which to institute declaratory proceedings under Section 10(4) of Cap 405 had already expired.
56. The Applicant relies on the decision in Jubilee Insurance Company of Kenya Limited v Nelson Njenga Munene & Others [2018] eKLR, where the Court held that the provisions of the Limitation of Actions Act do not apply to applications brought under Section 10 of Cap 405. The Applicant also relies on Xplico Insurance Company v Simon Mkalla Ndegwa & 2 Others [2014] eKLR, where the Court allowed an insurer’s application for extension of time upon being satisfied that there was adequate explanation for the delay in filing a declaratory suit.
57. The Applicant further submits that in Xplico Insurance Company v Simon Mkalla Ndegwa, the Court (Kasango J.) held that where sufficient explanation is provided for delay, the Court may grant leave to institute declaratory proceedings out of time together with consequential orders of stay.
58. The Applicant also cites Republic v Public Administrative Review Board & Another [2019] eKLR, where Mativo J. stated that the Court’s discretion must be exercised judicially and with regard to the circumstances of each case, including the need to do substantive justice.
59. The Applicant further relies on Rosco Kibara Mangaara v Deputy County Commissioner Tharaka South Subcounty & 3 Others; Paul Kirimi Kiria (Interested Party) [2021] eKLR, where the Court held that an Applicant must demonstrate good reason for delay and that courts should consider the period of delay and explanation offered.
60. The Applicant additionally submits that Section 10(4) of Cap 405 allows an insurer to avoid liability upon obtaining a declaration that it is entitled to avoid the policy on grounds such as non-disclosure or misrepresentation.
61. It is the Applicant’s submission that the Respondents will suffer no prejudice if the orders sought are granted, as their claims will still be heard on merits in the suits before the Maseno Court.
62. The Applicant further submits that the contractual dispute between itself and the 1st Respondent is distinct from the tort claims before the Maseno Court and can be determined separately.
63. The Applicant contends that it acted promptly upon discovering the alleged breach and that any delay was due to the need to verify numerous claims arising from the accident.
64. The Applicant therefore urges the Court to exercise its discretion in its favour and grant leave to institute declaratory proceedings out of time and stay the suits pending determination of the intended declaratory suit.
F. THE 1ST RESPONDENT’S SUBMISSIONS.
65. In its submissions, the 1st Respondent identifies one central issue for determination, namely whether the Applicant is entitled to orders extending time within which to institute declaratory proceedings against the 1st Respondent.
66. The 1st Respondent submits that the Applicant is not entitled to an order for extension of time to file a declaratory suit, as such a suit does not fall within the categories contemplated under Section 27 of the Limitation of Actions Act.
67. It is argued that Section 27 of the Limitation of Actions Act only permits extension of time in limited circumstances relating to actions founded on negligence, nuisance, or breach of duty where damages are claimed in respect of personal injuries, and does not extend to declaratory proceedings such as the one contemplated by the Applicant.
68. The 1st Respondent relies on the decision in Corporate Insurance Co. Ltd v Reuben Murigi Mwangi [2018] eKLR, where the Court held that:
“Section 27 of Cap 22 provides for extension of limitation period but only in cases of ignorance of material facts in actions for negligence, nuisance or breach of duty, where damages are claimed in respect of personal injuries of any person. A declaratory suit as the one herein, is not included among them…”.
69. The 1st Respondent submits that this authority is clear that declaratory suits are not amenable to extension of time under the Limitation of Actions Act.
70. The 1st Respondent further relies on the case of Madison Insurance Co. Kenya Ltd v David Kibe Mathenge [2017] eKLR, for the proposition that Section 10(4) of Cap 405 prescribes a strict three-month period within which an insurer must institute declaratory proceedings after commencement of the compensation suit, and that the statute provides no mechanism for extension of that period. The 1st Respondent submits that this authority confirms that the statutory timelines under Section 10(4) of Cap 405 are strict and not subject to extension by the Court.
71. It is further submitted that the Applicant has failed to provide a satisfactory explanation for its failure to institute the declaratory suit within the prescribed statutory period, notwithstanding that it had already entered appearance and filed defences in the suits on behalf of the insured.
72. The 1st Respondent therefore contends that the application does not fall within the discretionary jurisdiction of the Court, and that Article 159(2)(d) of the Constitution cannot be invoked to defeat clear statutory provisions governing limitation of actions.
73. In conclusion, the 1st Respondent submits that the Applicant is not entitled to leave to institute a declaratory suit out of time, as the Court lacks jurisdiction to extend time in the circumstances of the case, and urges that the application be dismissed with costs.
74. The 2nd to 52nd Respondents’ submissions raise issues of jurisdiction, limitation, abuse of process and the relationship between the insurance dispute and the tort claims.
75. The 2nd to 52nd Respondents submit that the central question for determination is whether the Court can intervene to stay the suits before the Maseno Court, which are founded on the tort of negligence, in order to allow the Applicant pursue a separate dispute based on a contract of insurance. They contend that there is no commonality between the two causes of action and that the Applicant is effectively seeking to delay the tort claims to the prejudice of the claimants.
76. They further identify the issues for determination as: (a) whether the Court should extend time for the Applicant to file declaratory proceedings; (b) whether the Court should stay the suits before the Maseno Court pending determination of the intended declaratory suit; and (c) who should bear costs.
77. On extension of time, the 2nd to 52nd Respondents submit that the Court lacks jurisdiction to extend time under Section 10(4) of Cap 405, as that provision contains no enabling clause for extension. They argue that jurisdiction to extend time must be expressly conferred by statute.
78. They rely on the wording of Section 10(4) of Cap 405, emphasizing that it sets a strict statutory timeline for an insurer to obtain a declaration, and that failure to comply extinguishes the right. They submit that the Applicant’s attempt to extend time is therefore legally unsustainable.
79. The 2nd to 52nd Respondents rely on the decision in APA Insurance Company v Vincent Nthuka (Odunga J., as he then was), where the Court held that Section 10(4) does not provide for extension of time and observed that the statute does not authorize the extension of the period stipulated for the commencement of declaratory proceedings and that, in the absence of statutory jurisdiction, the Court’s inherent powers cannot be invoked to confer a jurisdiction that does not otherwise exist.
80. They submit that this authority is binding and confirms that the Court cannot invoke inherent jurisdiction under Section 3A of the Civil Procedure Act to extend statutory timelines.
81. They further rely on Industrial & Commercial Development Corporation v Otachi [1977] KLR 101 and Elephant Soap Factory Ltd v Nahashon Mwangi & Sons Nairobi HCCC No. 913 of 1971, for the proposition that inherent jurisdiction cannot be invoked to override express statutory provisions.
82. The 2nd to 52nd Respondents also submit that Order 50 Rule 4 of the Civil Procedure Rules is inapplicable, as it only governs computation of time under the Rules or court orders, and not statutory limitation periods under Cap 405.
83. They rely on the case of Mokombo Ole Simel & Others v County Council of Narok & Others Nairobi HCCC (unreported), where the Court held that where limitation is imposed by statute, procedural rules cannot be invoked to extend time, and underscored that procedural rules, being subordinate legislation, cannot supersede the provisions of a statute. It further stated that the judicial duty is confined to interpreting and enforcing the law in its current form, leaving any legislative changes to Parliament.
84. The 51 Respondents further submit that Article 159(2)(d) of the Constitution cannot be invoked to circumvent clear statutory provisions. They rely on APA Insurance Company Limited v Vincent Nthuka (supra), where the Court emphasized that Article 159(2)(d) cannot be employed to circumvent clear statutory provisions, particularly where the effect would be to revive a claim that has been expressly extinguished by legislation.
85. They further cite the Supreme Court decision in Raila Odinga v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR, where the Court observed that Article 159(2)(d) was not enacted to exempt litigants from compliance with procedural imperatives, but rather to ensure that procedural rules serve, rather than hinder, the administration of substantive justice.
86. On the policy rationale for limitation, they cite the case of Dhanesvar V Mehta v Manilal M Shah (Court of Appeal for East Africa), where the Court emphasized that statutory limitation periods serve the public interest by ensuring finality in litigation and preventing the prosecution of stale claims. It further held that, once the limitation period expires, the law bars the remedy notwithstanding the strength or merits of the underlying claim.
87. They submit that even if the Court had jurisdiction, the Applicant has failed to meet the legal threshold for extension of time. They rely on Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231, where the Court set out guiding principles for extension of time as the length of delay, the reason for delay, the chances of success and prejudice to the Respondent.
88. They also rely on the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, where the Court emphasized that a party seeking extension of time must provide a credible and satisfactory explanation for the delay, as such an explanation is the primary basis upon which the Court may exercise its discretion in that party’s favour.
89. The 51 Respondents argue that declaratory proceedings could have been filed immediately upon receipt of the investigator’s report, citing APA Insurance Company Limited v Vincent Nthuka (supra), where the Court observed that declaratory proceedings can lawfully be instituted prior to the commencement of a suit by an injured party seeking damages.
90. The 2nd to 52nd Respondents submit that the
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