1. This ruling determines the Application dated 17th March 2026 wherein the Applicants seek for following orders: -
1) Spent.
2) Leave be granted to the Exparte Applicants to apply for judicial review order of Certiorari to remove into this Honourable Court and quash the decision of the 1stRespondent vide letter Ref. No. IRA/01/036/01 issued 10th March 2026 appointing the 2nd Respondent as the Statutory Manager of Interested Party with immediate effect and subsequent Public Notice issued on 10thMarch 2026.
3) Leave be granted to the Exparte Applicants to apply for judicial review order of prohibition estopping the 2nd Respondent from implementation and/or further implementation of the 1st Respondents decision vide the letter Ref. No. IRA/01/036/01 and issued 10th March 2026 appointing it as the Statutory Manager of Interested Party.
4) The leave so granted operate as a stay of the decision of the 1st Respondent contained in its letter Ref. No. IRA/01/036/01 and issued 10th March 2026 appointing the 2nd Respondent as the Statutory Manager of Interested Party.
5) The leave so granted operate as a stay against the 2ndRespondent from implementation and / or further implementation of the 1st Respondent’s decision contained in the letter Ref. No. IRA/01/036/01 and issued 10th March 2026 appointing it as the Statutory Manager of Interested Party.
6) The leave so granted operate to maintain the status quo ante existing prior to the 1st Respondent’s decision in the letter Ref. No. IRA/01/036/01 and issued 10th March 2026.
7) Costs of the Application be provided for.
2. The Applicant's case is advanced by Emmanuel Oriedo Makanga, a policy holder who has an insurance cover with the Interested Party.
3. It is the Applicants’ case that on 17th May 1982 or thereabout, the Interested Party was incorporated as a body corporate duly licensed under the Insurance Act to provide insurance services.
4. It is their case that over the 40 years of the Interested Party’s existence, it has conducted its insurance business having been duly so licensed by the 1st Respondent upon satisfaction that it is complaint with the Insurance Act.
5. The Applicants are aggrieved that the 1st Respondent’s decision dated 10th March 2026 to place the Interested Party under statutory management irregularity, unlawfully and in disregard of due process in breach of Section 67C of the Insurance Act as no notice was ever given to the Interested Party of any non- compliance that was not addressed.
6. The Applicants are further aggrieved that the 1st Respondent has purported to appoint the 2nd Respondent as a Statutory Manager with respect to the affairs of the Interested Party, a decision which was communicated to the public.
7. This happened despite the fact that the Interested Party’s compliance with the Insurance Act over the 40 years of its existence cemented and the 1st Respondent by it being licensed as recently as of 9th January 2026.
8. The Respondent’s action which is intended to liquidate the Interested Party is detrimental and the same exposes the Applicants to financial ruin and the risks that are covered under insurance policies placed with the Interested Party. They are now facing unmitigated perils as the validity of their cover is doubtful due to the 1st Respondent decision.
9. They argue that the 1st Respondent has without cause impaired their legitimate expectations that an insurer licensed in January 2026, denoting full statutory compliance, would not have its business disrupted by the regulator under the guise of regulatory probity just a few weeks after passing a clean bill of health.
10. It is further their case that the impugned decision will occasion immense prejudice and irreparable loss to them.
11. The 2nd Respondent will likely mobilize to seize the affairs, assets, bank accounts, seal and other statutory instruments of the Interested Party as a consequence of the flawed, illegal and improper decision of the 1st Respondent which if allowed to continue without the Court’s intervention, will cause immense prejudice to the Applicant and the general public.
12. In buttressing their case, the Applicants filed submissions and supplementary submissions to support the Application and the statutory documents that accompanied the Application.
13. They submit that the Application meets the statutory requirements for the grant of the orders sought. They hold the view that the court should not delve deep into the merits since the matter is at the leave stage. It is their argument that they have made out a Prima facie case.
14. They submit that the 1st Respondent’s argument that the matter subjudice and an appeal is misplaced, because the 1st Respondent did not tender any evidence to establish the above since it only files grounds of opposition.
15. They further submit that matter before the Tribunal is different from what is before this court and in any event, the jurisdiction of the Tribunal is different from that of this court.
16. The Applicants submit that they are policyholders with the interested party as a result of which they have the locus standi to move the court as they have done within Section 7 of The Insurance Act. They argue that they have moved the court promptly without any delay.
17. The expert Applicants filed supplementary submissions wherein they challenge the Respondents’ arguments that the court lacks jurisdiction and that the suit is premature.
18. It is their case that the legal concern at hand goes beyond the scope of what the tribunal would handle because the same touches on issues which places the interested party into insolvency without the engagement of the management of the company and policy holders like the applicants.
19. The Applicants argue that they are inviting the court to go beyond and look at the propriety, the legality and the lawfulness of the notice of 10th March 2026.
20. They argued that the conduct of the Respondent manager amounts to a statutory management and beyond.
21. It is their argument that the first and second Respondent conduct seem to conclude that the interested party has been unable to pay its debt placing it in the ambit of the Insolvency Act and that issues of insolvency should be determined by the High Court.
22. They further submit that by invoking Section 67 of the Insurance Act the Respondents got it all wrong because in cases where an insurance company is unable to pay its debts fall within the scope of Section 384 of the Insolvency Act.
23. It is their case that this court needs to do a harmonious interpretation of the two statutes by way of taking evidence which can only be done before this court. They submit that Section 424 is the proper Section which should be involved in case of a company that is due for liquidation.
24. They submit that the Respondent's action without evidence of insolvency is procedurally unfair unreasonable and unlawful and contrary to Article 47 of the Constitution.
25. They submit that Article 23, Article 27 and Article 165 of the Constitution confer jurisdiction to the High Court to regulate and supervise all Tribunals, persons and quasi-judicial authorities.
26. They submit further that the Application raises both procedural, and substantive issues of law, which can only be handled and determined by the High Court.
27. They argue that in the instant case there is an overlap in the statutes, and in such a case, the substantive statute should carry the day. They argue that the Insolvency Act should be the one that should apply given that the Insurance Act simply gives procedural provisions and in particular at Section 67 which provides for the appointment of a statutory manager.
28. It is further their submission that invoking the Insurance Act to appoint a manager to control, dispose of the first Interested Parties’ assets is illegal. They submit that such a process should be done under the Insolvency Act and not the Insurance Act. They submit that the unprocedural approach by the Respondent's calls for the scrutiny of this court.
The 1st Respondent’s case;
29. In opposing the Application, it filed grounds of opposition advancing the argument that the Application lacks merit given that Section 173 of the Insurance Act unequivocally provides that any person aggrieved by the decisions of the 1st Respondent, may within one (1) month from the date the decision is made appeal at the Insurance Appeals Tribunal which The Exparte Applicants have not exhausted before seeking this Court’s intervention.
30. It submits that Section 173 of the Insurance Act, CAP 487, Laws of Kenya elucidates that the procedure for appeals from the 1st Respondent’s decisions is to the Insurance Appeals Tribunal as follows:
“A person aggrieved by a decision of the Commissioner under this Act may, within one month from the date on which the decision is intimated to him, appeal to the Tribunal which may, subject to such terms and conditions as it may consider necessary, uphold, reverse, revoke or vary that decision.”
31. Section 9(2) of the Fair Administrative Action Act provides thus:
“The high court or a subordinate Court under subsection 1 shall not review an administrative action or decision under this act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
32. It relies on the case of Old Mutual General Insurance Kenya Ltd vs Insurance Regulatory Authority and Tropic Air Ltd. Judicial Review Miscellaneous Application E030 of 2024 [2025] KEHC 4570 (KLR) where the court held as follows:
“The Applicant has not exhausted the redress avenues available within the above legal avenues that are at its disposal. In any event, the Applicant has not made an Application to be exempted from the doctrine of exhaustion.”
33. The Court in the aforementioned matter downed its tools in line with the principles settled in the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR [36] as follows:
“Having found as I have above, this court has to down its tool in line with the principles as settled in the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019/eKLR/36) wherein it was observed that, "Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel "Lillian S" Caltex Oil, (Kenya) Ltd [1989) KLR 1, "jurisdiction is everything. Without it, a court has no power to make one more step"
34. The Ex-parte Applicants have not demonstrated that they made an Application to be exempted from the doctrine of exhaustion, therefore this honourable Court therefore lacks jurisdiction to entertain the same.
35. In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR the Court held as follows:
“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency’s action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
36. The 1st Respondent further opposes the instant Application as the prayers sought by the Ex-parte Applicants herein are similar to those sought in Insurance Appeals Tribunal Appeal No. 2 of 2026 Trident Insurance Co. Ltd. v Insurance Regulatory Authority which was filed before the Insurance Appeals Tribunal on 11th March 2026 under the remedies available under Section 173 of the Insurance Act, CAP 487, Laws of Kenya challenging the decision of the 1st Respondent of 10th March 2026 and sought the following prayers in its Notice of Motion Application dated 11th March 2026:
i. That for reasons recorded, this Application be certified urgent, and service of this Application be dispensed with and the Application be heard ex-parte in the first instance for purposes of prayers 2,3 and 4 hereof.
ii. That a temporary order of the Honourable Tribunal be and is hereby issued suspending any implementing of the decision of the Respondent dated 10th March, 2026 placing the Appellant under Statutory Management pending hearing and determination of the Application, or until further Orders of the Tribunal.
iii. That a temporary order of the Honourable Tribunal be and is hereby issued suspending any implementing of the decision of the Respondent dated 10th March, 2026 cancelling policies by the Appellant placing the Appellant under Statutory Management pending hearing and determination of the Application, or until further Orders of the Tribunal.
iv. That a temporary order of the Honourable Tribunal be and is hereby issued restoring the management of the insurance business of the Applicant to the Board of Directors of, Principal Officer of the Appellant pending hearing and determination of the Application, or until further Orders of the Tribunal.
v. That a temporary order of the Honourable Tribunal be and is hereby issued suspending any implementation of the decision of the Respondent dated 10th March, 2026 cancelling policies by the Appellant placing the Appellant under Statutory Management pending hearing and determination of the Appeal, or until further Orders of the Tribunal.
vi. That a temporary order of the Honourable Tribunal be and is hereby issued suspending any implementing of the decision of the Respondent dated 10th March, 2026 cancelling policies by the Appellant placing the Appellant under Statutory Management pending hearing and determination of the Application, or until further Orders of the Tribunal.
vii. That a temporary order of the Honourable Tribunal be and is hereby issued restoring the management of the insurance business of the Applicant to the Board of Directors of, Principal Officer of the Appellant pending hearing and determination of the Application, or until further Orders of the Tribunal.
37. It submits that the instant Application offends the doctrine of sub judice as espoused under Section 6 of the Civil Procedure Act and is an attempt to clothe a judicial review court with appellate jurisdiction which is untenable.
38. The 1st Respondent humbly submits that an order of certiorari cannot issue in the circumstances while paying disregard to Insurance Appeals Tribunal Appeal No. 2 of 2026 Trident Insurance Co. Ltd. v Insurance Regulatory Authority which is pending hearing and determination in before the Insurance Appeal Tribunal.
39. The foregoing notwithstanding, the 1st Respondent submits that it appeared before the honourable Insurance Appeals Tribunal on 13th March 2026 at 9.00am for the mention of Insurance Appeals Tribunal Appeal No. 2 of 2026 Trident Insurance Co. Ltd. v Insurance Regulatory Authority and due to the intentional absence of the Interested Party, the 1st Respondent was directed to file its responses to the Application.
40. The 1st Respondent in compliance with the directions of the Insurance Appeals Tribunal filed its Replying Affidavit on 19th March 2026 detailing the numerous instances of the Interested Party’s non-compliance with the provisions of the Insurance Act Cap 487 Laws of Kenya which triggered the regulatory actions undertaken by the 1st Respondent as elucidated in the 1st Respondent’s Replying Affidavit sworn by Godfrey K. Kiptum on 19th March 2026.
41. The aforementioned correspondence aptly demonstrates that at all material times, since the Insurance (Amendment) Act 2017, which introduced issuance of perpetual (permanent) licences to insurance companies and reinsurers and replaced issuance of annual renewal of licences, the Interested Party was very much aware of its non-compliance and the regulatory action likely to be taken by the 1st Respondent.
42. The 1st Respondent in a bid to bring the Interested Party (the Insurer) to compliance, while allowing it to continue with operating its business, issued multiple directives including Notice to Show Cause, Infringement Notices, while citing the regulatory action that would follow.
43. However, the Interested Party would submit numerous remedial action plans and make frequent commitments to ensure compliance with the provisions of the Insurance Act and all applicable regulations, which they unfortunately continuously failed to honour.
44. It is noteworthy that as of 2025, Interested Party, had gotten into the blatant habit of ignoring the directives of the 1stRespondent case in point from 20th August 2025 when the 1stRespondent required the Interested Party to submit remedial actions within 30 days, which the Interested Party, Trident Insurance Co. Ltd. blatantly ignored resulting the 1stRespondent in issued a Notice of Cancellation of License under Section 196(2) of the Insurance Act on 15th December 2025.
45. The Interested Party only responded when the 1stRespondent issued a cancellation notice on 16th December 2025 following which they again made numerous commitments to ensure that the Insurer aligns with the requirements of the Insurance Act and appealed to the Respondent to recall the cancellation notice.
46. The 1stRespondent reviewed the submissions made by the Interested Party and agreed to lift the Notice of Cancellation on 15th January 2026 on condition that the Interested Party complies with various provisions of the Insurance Act that they were still in breach of including “Section 41 on Capital Adequacy Requirements, Section 68 on appointment of a Principal Officer, Section 32 on lien creation Section 47 on transfer of all company assets to the name of the insurer, Sections 54 and 61 on submission of audited financial statements and statutory returns, Section 203 on settlement of claims and submission of claims returns and resolution of all complaints lodged with the Authority, Section 29 on submission of reinsurance programs, Section 179 on submission of Policyholders Compensation Fund returns and payment of PCF levies and all accrued penalties and Section 197A on submission of premium levy returns and payment of all accrued penalties, Compliance with Section 3.5 of the Corporate Governance Guidelines in respect of an independent Board Chairman, by 31st January 2026, failure of which regulatory action under the Insurance Act without further reference..”
47. The Interested Party acknowledged the lifting of the cancellation notice and reiterated their commitment to ensure compliance with the aforementioned Respondent’s directives vide letter received 27th January 2026. However, following continued failure by the Interested Party to comply with the provisions of the Insurance Act, deterioration of the insurer’s financial position and operational stability, the 1st Respondent placed the Insurer under Statutory Management and appointed the Policyholders Compensation Fund to take over management of the insurer with effect from 10th March 2026 pursuant to Section 67C (2)(i) of the Insurance Act.
48. It invites this Court to appreciate the various engagements between the Interested Party, Trident Insurance Co. Ltd and the 1st Respondent, the Insurance Regulatory Authority for close to a decade, which bear evident the blatant continued reluctance by the Interested Party, to comply with the requirements of the Insurance Act Cap 487 Laws of Kenya and directives issued by the 1stRespondent on inter alia Section 68, 32, 47, 54, 61, 203 and more so the continued breach by the Interested Party of Section 41 on Capital Adequacy Requirements, Section 203 on settlement of policyholders’ claims and failure to submit levies to the Policyholders Compensation Fund under Section 179, which directly puts in jeopardy the policyholders of the Interested Party including the Ex-Parte Applicants.
49. The 1st Respondent submits that regulatory action taken on 10th March, 2026 was not sudden, it was procedural, timely and well within the knowledge and control of the Interested Party, if they complied with the law.
50. The Applicants’ attempt at portraying the 1st Respondent’s regulatory action as abrupt and drastic, whereas the 1st Respondent evidently accorded the Insurer with infinite chances to comply with the provisions of the Insurance Act and the directives issued by the 1st Respondent, is not only unsubstantiated but far from the truth.
51. The 1st Respondent indeed granted the Interested Party, Trident Insurance Co. Ltd. numerous opportunities to be heard, as evidenced through numerous meetings between parties and correspondence referred to above.
52. The Interested Party, nonetheless blatantly failed to rectify the non-compliance highlighted by the 1st Respondent.
53. It submits that the Application fails to meet the set threshold and basic tenets of a judicial review Application as the Ex-parte Applicants have not provided any evidence nor do they state the grounds of illegality, unreasonableness, irrationality, impropriety of procedure or improper consideration on the part of the 1st Respondent in the making of the decision to place the Interested Party under Statutory Management.
54. In Republic -vs- Inland Revenue Commissioners exp National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, the Judge stated that the requirement that leave must be obtained before making an Application for judicial review is designed to “Prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”
55. Reliance is also Placed in Republic v Land Registrar, Machakos County; Mutua (Ex parte Applicant) [2025] KEELC 4733 (KLR)where the Court held that:
“Leave to apply for judicial review may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive Application for judicial review […]
It is an exercise of the courts discretion but as always has to be exercised judicially. Has the Applicant satisfied these principles […]
The court cannot be invited in a judicial review proceeding to act as an appellate court to reverse the decision of the 1st Respondent.”
56. The 1st Respondent submits that it is a statutory regulatory body established under the Insurance Act, CAP 487, Laws of Kenya with the mandate to supervise, regulate and promote the development of the insurance industry in Kenya. The 1st Respondent’s objects and functions under Section 3A of the Insurance Act, CAP 487, Laws of Kenya include:
a) ensure the effective administration, supervision, regulation and control of insurance and reinsurance business in Kenya;
b) formulate and enforce standards for the conduct of insurance and reinsurance business in Kenya;
c) license all persons involved in or connected with insurance business, including insurance and reinsurance companies, insurance and reinsurance intermediaries, loss adjusters and assessors, risk surveyors and valuers;
d) protect the interests of insurance policy-holders and insurance beneficiaries in any insurance contract;
e) promote the development of the insurance sector;
f) advise the Government on the national policy to be followed in order to ensure adequate insurance protection and security for national assets and national properties;
g) issue supervisory guidelines and prudential standards from time to time, for the better administration of the insurance business of persons licensed under this Act;
h) share information with other regulatory authorities and to carry out any other related activities in furtherance of its supervisory role; (i) undertake such other functions as may be conferred on it by this Act or by any other written law.
57. The 1st Respondent placed the Interested Party under Statutory Management in accordance with Section 67C(2)(i) of the Insurance Act, CAP 487, Laws of Kenya as was elucidated in the Public Notice dated 10th March, 2026.
58. Section 67C (1) of the Insurance Act, grants the Commissioner of Insurance power to intervene in the management of companies, with the approval of the Board in the following circumstances:
a) If the insurer is found to have failed to meet the capital adequacy ratios required under section 41 of the Act;
b) If the insurer has failed to submit any of the accounts, returns, statements, actuarial valuations or other reports under Part VI for over six months after the end of the financial year to which they relate;
c) If the insurer having failed to comply with any requirement of this Act, has continued that failure, or having contravened any provision of this Act, has continued that contravention for a period of six months after notice of such failure or contravention has been given to him by the Commissioner;
d) Where, having regard to the financial circumstances of the person licensed, the Commissioner is satisfied that the person cannot carry on the business, or any part of the business, for which he is licensed, as the case may be, in a satisfactory and efficient manner;
e) If an amount due by the insurer under a judgement entered into in an action in Kenya arising out of a policy of insurance issued by the insurer or a contract of reinsurance entered into by a reinsurer, has remained unpaid for three months after the date of the final adjudication in that action;
f) If the business of the insurer is wholly or is unproportionately reinsured with another person;
g) If an insurer is unable to pay its debts within the meaning of section 384 of the Insolvency Act (Cap. 53)
h) If the insurer is found to have made adequate reserves or to have understated the level of his liabilities;
i) If the insurer is discovered to have submitted or provided any accounts, returns, statements, books, records, correspondence, documents or other information relating to his business which is false or misleading; or
j) If the Commissioner discovers, whether on an inspection or otherwise, or becomes aware of any fact or circumstance which, in his opinion, warrants the exercise of the relevant power in the interests of the insurer, its shareholders, policy-holders, or reinsurer or in the public interest.
59. It submits that the 1st Respondent reiterates its earlier submission that for close to a decade the Interested Party, Trident Insurance Co. Ltd. blatantly continued to fail to comply with the requirements of the Insurance Act Cap 487 Laws of Kenya and directives issued by the 1st Respondent inter alia Section 41 on Capital Adequacy Requirements, Section 68 on appointment of a Principal Officer, Section 32 on lien creation Section 47 on transfer of all company assets to the name of the insurer, Sections 54 and 61 on submission of audited financial statements and statutory returns, Section 203 on settlement of claims and submission of claims returns and resolution of all complaints lodged with the Authority, Section 29 on submission of reinsurance programs, Section 179 on submission of Policyholders Compensation Fund returns and payment of PCF levies and all accrued penalties and Section 197A on submission of premium levy returns and payment of all accrued penalties, and Corporate Governance Guidelines.
60. The 1st Respondent submits that regulatory action taken on 10th March, 2026 was not sudden, it was procedural, timely and well within the knowledge and control of the Interested Party, if they complied with the law.
61. The 1st Respondent’s evidently accorded the Insurer with infinite chances to comply with the provisions of the Insurance Act and the directives issued by the 1st Respondent, is not only unsubstantiated but far from the truth.
62. In the case of Paul Kiplagat Birgen & 25 Others V Interim Independent Electoral Commission & 2 others [2011] eKLR:
“Certiorari issues to quash a decision which is ultra vires. Certiorari is also concerned with the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed.… Judicial review must be accurately focused upon the actual exercise of a legal power and not upon mere preliminaries. The concern of certiorari is about a decision whether or not made under a legal power or a legal authority.”
63. The 1st Respondent submits that its decision passes the test that it was made under a legal power with legal authority under Section 67C of the Insurance Act, CAP 487, Laws of Kenya as was elucidated in the Public Notice dated 10thMarch, 2026 and more so that the decision was not in any way, with the Interested Party having been evidently accorded with infinite chances to comply with the provisions of the Insurance Act.
64. It is incumbent upon the Applicants to demonstrate the allegations against the decision-making organ, the 1stRespondent, to justify intervention by this Honourable Court at this preliminary stage yet the Ex-parte Applicants have not furnished this Honourable Court with any evidence to show that the 1
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1) Spent.
2) Leave be granted to the Exparte Applicants to apply for judicial review order of Certiorari to remove into this Honourable Court and quash the decision of the 1stRespondent vide letter Ref. No. IRA/01/036/01 issued 10th March 2026 appointing the 2nd Respondent as the Statutory Manager of Interested Party with immediate effect and subsequent Public Notice issued on 10thMarch 2026.
3) Leave be granted to the Exparte Applicants to apply for judicial review order of prohibition estopping the 2nd Respondent from implementation and/or further implementation of the 1st Respondents decision vide the letter Ref. No. IRA/01/036/01 and issued 10th March 2026 appointing it as the Statutory Manager of Interested Party.
4) The leave so granted operate as a stay of the decision of the 1st Respondent contained in its letter Ref. No. IRA/01/036/01 and issued 10th March 2026 appointing the 2nd Respondent as the Statutory Manager of Interested Party.
5) The leave so granted operate as a stay against the 2ndRespondent from implementation and / or further implementation of the 1st Respondent’s decision contained in the letter Ref. No. IRA/01/036/01 and issued 10th March 2026 appointing it as the Statutory Manager of Interested Party.
6) The leave so granted operate to maintain the status quo ante existing prior to the 1st Respondent’s decision in the letter Ref. No. IRA/01/036/01 and issued 10th March 2026.
7) Costs of the Application be provided for.
2. The Applicant's case is advanced by Emmanuel Oriedo Makanga, a policy holder who has an insurance cover with the Interested Party.
3. It is the Applicants’ case that on 17th May 1982 or thereabout, the Interested Party was incorporated as a body corporate duly licensed under the Insurance Act to provide insurance services.
4. It is their case that over the 40 years of the Interested Party’s existence, it has conducted its insurance business having been duly so licensed by the 1st Respondent upon satisfaction that it is complaint with the Insurance Act.
5. The Applicants are aggrieved that the 1st Respondent’s decision dated 10th March 2026 to place the Interested Party under statutory management irregularity, unlawfully and in disregard of due process in breach of Section 67C of the Insurance Act as no notice was ever given to the Interested Party of any non- compliance that was not addressed.
6. The Applicants are further aggrieved that the 1st Respondent has purported to appoint the 2nd Respondent as a Statutory Manager with respect to the affairs of the Interested Party, a decision which was communicated to the public.
7. This happened despite the fact that the Interested Party’s compliance with the Insurance Act over the 40 years of its existence cemented and the 1st Respondent by it being licensed as recently as of 9th January 2026.
8. The Respondent’s action which is intended to liquidate the Interested Party is detrimental and the same exposes the Applicants to financial ruin and the risks that are covered under insurance policies placed with the Interested Party. They are now facing unmitigated perils as the validity of their cover is doubtful due to the 1st Respondent decision.
9. They argue that the 1st Respondent has without cause impaired their legitimate expectations that an insurer licensed in January 2026, denoting full statutory compliance, would not have its business disrupted by the regulator under the guise of regulatory probity just a few weeks after passing a clean bill of health.
10. It is further their case that the impugned decision will occasion immense prejudice and irreparable loss to them.
11. The 2nd Respondent will likely mobilize to seize the affairs, assets, bank accounts, seal and other statutory instruments of the Interested Party as a consequence of the flawed, illegal and improper decision of the 1st Respondent which if allowed to continue without the Court’s intervention, will cause immense prejudice to the Applicant and the general public.
12. In buttressing their case, the Applicants filed submissions and supplementary submissions to support the Application and the statutory documents that accompanied the Application.
13. They submit that the Application meets the statutory requirements for the grant of the orders sought. They hold the view that the court should not delve deep into the merits since the matter is at the leave stage. It is their argument that they have made out a Prima facie case.
14. They submit that the 1st Respondent’s argument that the matter subjudice and an appeal is misplaced, because the 1st Respondent did not tender any evidence to establish the above since it only files grounds of opposition.
15. They further submit that matter before the Tribunal is different from what is before this court and in any event, the jurisdiction of the Tribunal is different from that of this court.
16. The Applicants submit that they are policyholders with the interested party as a result of which they have the locus standi to move the court as they have done within Section 7 of The Insurance Act. They argue that they have moved the court promptly without any delay.
17. The expert Applicants filed supplementary submissions wherein they challenge the Respondents’ arguments that the court lacks jurisdiction and that the suit is premature.
18. It is their case that the legal concern at hand goes beyond the scope of what the tribunal would handle because the same touches on issues which places the interested party into insolvency without the engagement of the management of the company and policy holders like the applicants.
19. The Applicants argue that they are inviting the court to go beyond and look at the propriety, the legality and the lawfulness of the notice of 10th March 2026.
20. They argued that the conduct of the Respondent manager amounts to a statutory management and beyond.
21. It is their argument that the first and second Respondent conduct seem to conclude that the interested party has been unable to pay its debt placing it in the ambit of the Insolvency Act and that issues of insolvency should be determined by the High Court.
22. They further submit that by invoking Section 67 of the Insurance Act the Respondents got it all wrong because in cases where an insurance company is unable to pay its debts fall within the scope of Section 384 of the Insolvency Act.
23. It is their case that this court needs to do a harmonious interpretation of the two statutes by way of taking evidence which can only be done before this court. They submit that Section 424 is the proper Section which should be involved in case of a company that is due for liquidation.
24. They submit that the Respondent's action without evidence of insolvency is procedurally unfair unreasonable and unlawful and contrary to Article 47 of the Constitution.
25. They submit that Article 23, Article 27 and Article 165 of the Constitution confer jurisdiction to the High Court to regulate and supervise all Tribunals, persons and quasi-judicial authorities.
26. They submit further that the Application raises both procedural, and substantive issues of law, which can only be handled and determined by the High Court.
27. They argue that in the instant case there is an overlap in the statutes, and in such a case, the substantive statute should carry the day. They argue that the Insolvency Act should be the one that should apply given that the Insurance Act simply gives procedural provisions and in particular at Section 67 which provides for the appointment of a statutory manager.
28. It is further their submission that invoking the Insurance Act to appoint a manager to control, dispose of the first Interested Parties’ assets is illegal. They submit that such a process should be done under the Insolvency Act and not the Insurance Act. They submit that the unprocedural approach by the Respondent's calls for the scrutiny of this court.
The 1st Respondent’s case;
29. In opposing the Application, it filed grounds of opposition advancing the argument that the Application lacks merit given that Section 173 of the Insurance Act unequivocally provides that any person aggrieved by the decisions of the 1st Respondent, may within one (1) month from the date the decision is made appeal at the Insurance Appeals Tribunal which The Exparte Applicants have not exhausted before seeking this Court’s intervention.
30. It submits that Section 173 of the Insurance Act, CAP 487, Laws of Kenya elucidates that the procedure for appeals from the 1st Respondent’s decisions is to the Insurance Appeals Tribunal as follows:
“A person aggrieved by a decision of the Commissioner under this Act may, within one month from the date on which the decision is intimated to him, appeal to the Tribunal which may, subject to such terms and conditions as it may consider necessary, uphold, reverse, revoke or vary that decision.”
31. Section 9(2) of the Fair Administrative Action Act provides thus:
“The high court or a subordinate Court under subsection 1 shall not review an administrative action or decision under this act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.
32. It relies on the case of Old Mutual General Insurance Kenya Ltd vs Insurance Regulatory Authority and Tropic Air Ltd. Judicial Review Miscellaneous Application E030 of 2024 [2025] KEHC 4570 (KLR) where the court held as follows:
“The Applicant has not exhausted the redress avenues available within the above legal avenues that are at its disposal. In any event, the Applicant has not made an Application to be exempted from the doctrine of exhaustion.”
33. The Court in the aforementioned matter downed its tools in line with the principles settled in the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR [36] as follows:
“Having found as I have above, this court has to down its tool in line with the principles as settled in the Supreme Court Case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019/eKLR/36) wherein it was observed that, "Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoid overstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously said in the locus classicus, Owners of the Motor Vessel "Lillian S" Caltex Oil, (Kenya) Ltd [1989) KLR 1, "jurisdiction is everything. Without it, a court has no power to make one more step"
34. The Ex-parte Applicants have not demonstrated that they made an Application to be exempted from the doctrine of exhaustion, therefore this honourable Court therefore lacks jurisdiction to entertain the same.
35. In William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR the Court held as follows:
“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency’s action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.”
36. The 1st Respondent further opposes the instant Application as the prayers sought by the Ex-parte Applicants herein are similar to those sought in Insurance Appeals Tribunal Appeal No. 2 of 2026 Trident Insurance Co. Ltd. v Insurance Regulatory Authority which was filed before the Insurance Appeals Tribunal on 11th March 2026 under the remedies available under Section 173 of the Insurance Act, CAP 487, Laws of Kenya challenging the decision of the 1st Respondent of 10th March 2026 and sought the following prayers in its Notice of Motion Application dated 11th March 2026:
i. That for reasons recorded, this Application be certified urgent, and service of this Application be dispensed with and the Application be heard ex-parte in the first instance for purposes of prayers 2,3 and 4 hereof.
ii. That a temporary order of the Honourable Tribunal be and is hereby issued suspending any implementing of the decision of the Respondent dated 10th March, 2026 placing the Appellant under Statutory Management pending hearing and determination of the Application, or until further Orders of the Tribunal.
iii. That a temporary order of the Honourable Tribunal be and is hereby issued suspending any implementing of the decision of the Respondent dated 10th March, 2026 cancelling policies by the Appellant placing the Appellant under Statutory Management pending hearing and determination of the Application, or until further Orders of the Tribunal.
iv. That a temporary order of the Honourable Tribunal be and is hereby issued restoring the management of the insurance business of the Applicant to the Board of Directors of, Principal Officer of the Appellant pending hearing and determination of the Application, or until further Orders of the Tribunal.
v. That a temporary order of the Honourable Tribunal be and is hereby issued suspending any implementation of the decision of the Respondent dated 10th March, 2026 cancelling policies by the Appellant placing the Appellant under Statutory Management pending hearing and determination of the Appeal, or until further Orders of the Tribunal.
vi. That a temporary order of the Honourable Tribunal be and is hereby issued suspending any implementing of the decision of the Respondent dated 10th March, 2026 cancelling policies by the Appellant placing the Appellant under Statutory Management pending hearing and determination of the Application, or until further Orders of the Tribunal.
vii. That a temporary order of the Honourable Tribunal be and is hereby issued restoring the management of the insurance business of the Applicant to the Board of Directors of, Principal Officer of the Appellant pending hearing and determination of the Application, or until further Orders of the Tribunal.
37. It submits that the instant Application offends the doctrine of sub judice as espoused under Section 6 of the Civil Procedure Act and is an attempt to clothe a judicial review court with appellate jurisdiction which is untenable.
38. The 1st Respondent humbly submits that an order of certiorari cannot issue in the circumstances while paying disregard to Insurance Appeals Tribunal Appeal No. 2 of 2026 Trident Insurance Co. Ltd. v Insurance Regulatory Authority which is pending hearing and determination in before the Insurance Appeal Tribunal.
39. The foregoing notwithstanding, the 1st Respondent submits that it appeared before the honourable Insurance Appeals Tribunal on 13th March 2026 at 9.00am for the mention of Insurance Appeals Tribunal Appeal No. 2 of 2026 Trident Insurance Co. Ltd. v Insurance Regulatory Authority and due to the intentional absence of the Interested Party, the 1st Respondent was directed to file its responses to the Application.
40. The 1st Respondent in compliance with the directions of the Insurance Appeals Tribunal filed its Replying Affidavit on 19th March 2026 detailing the numerous instances of the Interested Party’s non-compliance with the provisions of the Insurance Act Cap 487 Laws of Kenya which triggered the regulatory actions undertaken by the 1st Respondent as elucidated in the 1st Respondent’s Replying Affidavit sworn by Godfrey K. Kiptum on 19th March 2026.
41. The aforementioned correspondence aptly demonstrates that at all material times, since the Insurance (Amendment) Act 2017, which introduced issuance of perpetual (permanent) licences to insurance companies and reinsurers and replaced issuance of annual renewal of licences, the Interested Party was very much aware of its non-compliance and the regulatory action likely to be taken by the 1st Respondent.
42. The 1st Respondent in a bid to bring the Interested Party (the Insurer) to compliance, while allowing it to continue with operating its business, issued multiple directives including Notice to Show Cause, Infringement Notices, while citing the regulatory action that would follow.
43. However, the Interested Party would submit numerous remedial action plans and make frequent commitments to ensure compliance with the provisions of the Insurance Act and all applicable regulations, which they unfortunately continuously failed to honour.
44. It is noteworthy that as of 2025, Interested Party, had gotten into the blatant habit of ignoring the directives of the 1stRespondent case in point from 20th August 2025 when the 1stRespondent required the Interested Party to submit remedial actions within 30 days, which the Interested Party, Trident Insurance Co. Ltd. blatantly ignored resulting the 1stRespondent in issued a Notice of Cancellation of License under Section 196(2) of the Insurance Act on 15th December 2025.
45. The Interested Party only responded when the 1stRespondent issued a cancellation notice on 16th December 2025 following which they again made numerous commitments to ensure that the Insurer aligns with the requirements of the Insurance Act and appealed to the Respondent to recall the cancellation notice.
46. The 1stRespondent reviewed the submissions made by the Interested Party and agreed to lift the Notice of Cancellation on 15th January 2026 on condition that the Interested Party complies with various provisions of the Insurance Act that they were still in breach of including “Section 41 on Capital Adequacy Requirements, Section 68 on appointment of a Principal Officer, Section 32 on lien creation Section 47 on transfer of all company assets to the name of the insurer, Sections 54 and 61 on submission of audited financial statements and statutory returns, Section 203 on settlement of claims and submission of claims returns and resolution of all complaints lodged with the Authority, Section 29 on submission of reinsurance programs, Section 179 on submission of Policyholders Compensation Fund returns and payment of PCF levies and all accrued penalties and Section 197A on submission of premium levy returns and payment of all accrued penalties, Compliance with Section 3.5 of the Corporate Governance Guidelines in respect of an independent Board Chairman, by 31st January 2026, failure of which regulatory action under the Insurance Act without further reference..”
47. The Interested Party acknowledged the lifting of the cancellation notice and reiterated their commitment to ensure compliance with the aforementioned Respondent’s directives vide letter received 27th January 2026. However, following continued failure by the Interested Party to comply with the provisions of the Insurance Act, deterioration of the insurer’s financial position and operational stability, the 1st Respondent placed the Insurer under Statutory Management and appointed the Policyholders Compensation Fund to take over management of the insurer with effect from 10th March 2026 pursuant to Section 67C (2)(i) of the Insurance Act.
48. It invites this Court to appreciate the various engagements between the Interested Party, Trident Insurance Co. Ltd and the 1st Respondent, the Insurance Regulatory Authority for close to a decade, which bear evident the blatant continued reluctance by the Interested Party, to comply with the requirements of the Insurance Act Cap 487 Laws of Kenya and directives issued by the 1stRespondent on inter alia Section 68, 32, 47, 54, 61, 203 and more so the continued breach by the Interested Party of Section 41 on Capital Adequacy Requirements, Section 203 on settlement of policyholders’ claims and failure to submit levies to the Policyholders Compensation Fund under Section 179, which directly puts in jeopardy the policyholders of the Interested Party including the Ex-Parte Applicants.
49. The 1st Respondent submits that regulatory action taken on 10th March, 2026 was not sudden, it was procedural, timely and well within the knowledge and control of the Interested Party, if they complied with the law.
50. The Applicants’ attempt at portraying the 1st Respondent’s regulatory action as abrupt and drastic, whereas the 1st Respondent evidently accorded the Insurer with infinite chances to comply with the provisions of the Insurance Act and the directives issued by the 1st Respondent, is not only unsubstantiated but far from the truth.
51. The 1st Respondent indeed granted the Interested Party, Trident Insurance Co. Ltd. numerous opportunities to be heard, as evidenced through numerous meetings between parties and correspondence referred to above.
52. The Interested Party, nonetheless blatantly failed to rectify the non-compliance highlighted by the 1st Respondent.
53. It submits that the Application fails to meet the set threshold and basic tenets of a judicial review Application as the Ex-parte Applicants have not provided any evidence nor do they state the grounds of illegality, unreasonableness, irrationality, impropriety of procedure or improper consideration on the part of the 1st Respondent in the making of the decision to place the Interested Party under Statutory Management.
54. In Republic -vs- Inland Revenue Commissioners exp National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, the Judge stated that the requirement that leave must be obtained before making an Application for judicial review is designed to “Prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”
55. Reliance is also Placed in Republic v Land Registrar, Machakos County; Mutua (Ex parte Applicant) [2025] KEELC 4733 (KLR)where the Court held that:
“Leave to apply for judicial review may only be granted therefore if on the material available the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the Applicant the test being whether there is a case fit for further investigation at a full inter partes hearing of the substantive Application for judicial review […]
It is an exercise of the courts discretion but as always has to be exercised judicially. Has the Applicant satisfied these principles […]
The court cannot be invited in a judicial review proceeding to act as an appellate court to reverse the decision of the 1st Respondent.”
56. The 1st Respondent submits that it is a statutory regulatory body established under the Insurance Act, CAP 487, Laws of Kenya with the mandate to supervise, regulate and promote the development of the insurance industry in Kenya. The 1st Respondent’s objects and functions under Section 3A of the Insurance Act, CAP 487, Laws of Kenya include:
a) ensure the effective administration, supervision, regulation and control of insurance and reinsurance business in Kenya;
b) formulate and enforce standards for the conduct of insurance and reinsurance business in Kenya;
c) license all persons involved in or connected with insurance business, including insurance and reinsurance companies, insurance and reinsurance intermediaries, loss adjusters and assessors, risk surveyors and valuers;
d) protect the interests of insurance policy-holders and insurance beneficiaries in any insurance contract;
e) promote the development of the insurance sector;
f) advise the Government on the national policy to be followed in order to ensure adequate insurance protection and security for national assets and national properties;
g) issue supervisory guidelines and prudential standards from time to time, for the better administration of the insurance business of persons licensed under this Act;
h) share information with other regulatory authorities and to carry out any other related activities in furtherance of its supervisory role; (i) undertake such other functions as may be conferred on it by this Act or by any other written law.
57. The 1st Respondent placed the Interested Party under Statutory Management in accordance with Section 67C(2)(i) of the Insurance Act, CAP 487, Laws of Kenya as was elucidated in the Public Notice dated 10th March, 2026.
58. Section 67C (1) of the Insurance Act, grants the Commissioner of Insurance power to intervene in the management of companies, with the approval of the Board in the following circumstances:
a) If the insurer is found to have failed to meet the capital adequacy ratios required under section 41 of the Act;
b) If the insurer has failed to submit any of the accounts, returns, statements, actuarial valuations or other reports under Part VI for over six months after the end of the financial year to which they relate;
c) If the insurer having failed to comply with any requirement of this Act, has continued that failure, or having contravened any provision of this Act, has continued that contravention for a period of six months after notice of such failure or contravention has been given to him by the Commissioner;
d) Where, having regard to the financial circumstances of the person licensed, the Commissioner is satisfied that the person cannot carry on the business, or any part of the business, for which he is licensed, as the case may be, in a satisfactory and efficient manner;
e) If an amount due by the insurer under a judgement entered into in an action in Kenya arising out of a policy of insurance issued by the insurer or a contract of reinsurance entered into by a reinsurer, has remained unpaid for three months after the date of the final adjudication in that action;
f) If the business of the insurer is wholly or is unproportionately reinsured with another person;
g) If an insurer is unable to pay its debts within the meaning of section 384 of the Insolvency Act (Cap. 53)
h) If the insurer is found to have made adequate reserves or to have understated the level of his liabilities;
i) If the insurer is discovered to have submitted or provided any accounts, returns, statements, books, records, correspondence, documents or other information relating to his business which is false or misleading; or
j) If the Commissioner discovers, whether on an inspection or otherwise, or becomes aware of any fact or circumstance which, in his opinion, warrants the exercise of the relevant power in the interests of the insurer, its shareholders, policy-holders, or reinsurer or in the public interest.
59. It submits that the 1st Respondent reiterates its earlier submission that for close to a decade the Interested Party, Trident Insurance Co. Ltd. blatantly continued to fail to comply with the requirements of the Insurance Act Cap 487 Laws of Kenya and directives issued by the 1st Respondent inter alia Section 41 on Capital Adequacy Requirements, Section 68 on appointment of a Principal Officer, Section 32 on lien creation Section 47 on transfer of all company assets to the name of the insurer, Sections 54 and 61 on submission of audited financial statements and statutory returns, Section 203 on settlement of claims and submission of claims returns and resolution of all complaints lodged with the Authority, Section 29 on submission of reinsurance programs, Section 179 on submission of Policyholders Compensation Fund returns and payment of PCF levies and all accrued penalties and Section 197A on submission of premium levy returns and payment of all accrued penalties, and Corporate Governance Guidelines.
60. The 1st Respondent submits that regulatory action taken on 10th March, 2026 was not sudden, it was procedural, timely and well within the knowledge and control of the Interested Party, if they complied with the law.
61. The 1st Respondent’s evidently accorded the Insurer with infinite chances to comply with the provisions of the Insurance Act and the directives issued by the 1st Respondent, is not only unsubstantiated but far from the truth.
62. In the case of Paul Kiplagat Birgen & 25 Others V Interim Independent Electoral Commission & 2 others [2011] eKLR:
“Certiorari issues to quash a decision which is ultra vires. Certiorari is also concerned with the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed.… Judicial review must be accurately focused upon the actual exercise of a legal power and not upon mere preliminaries. The concern of certiorari is about a decision whether or not made under a legal power or a legal authority.”
63. The 1st Respondent submits that its decision passes the test that it was made under a legal power with legal authority under Section 67C of the Insurance Act, CAP 487, Laws of Kenya as was elucidated in the Public Notice dated 10thMarch, 2026 and more so that the decision was not in any way, with the Interested Party having been evidently accorded with infinite chances to comply with the provisions of the Insurance Act.
64. It is incumbent upon the Applicants to demonstrate the allegations against the decision-making organ, the 1stRespondent, to justify intervention by this Honourable Court at this preliminary stage yet the Ex-parte Applicants have not furnished this Honourable Court with any evidence to show that the 1
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