REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA АТ MACHAKOS
CONSTITUTIONAL PETITION NO. E048 OF 2025
IN THE MATTER OF THE INSURANCE ACT, CAP 487
AND
IN THE MATTER OF THE ENFORCEMENT OF FUNDAMENTAL RIGHTS & FREEDOMS UNDER ARTICLE 23 & 258 OF THE CONSTITUTION OF KENYА
AND
IN THE MATTER OF THE BREACH & THREATENED BREACH OF ARTICLES 10, 27(1), 28, 30, 35(1)(b), 40, 46(1)(a), (c), &(d), 48, 50(1), & 258 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) PRACTICE & PROCEDURE RULES 2013, LEGAL NOTICE NO. 117 OF 2013
AND
IN THE MATTER OF THE INSURANCE (THIRD PARTY RISKS) AСТ, САР 405 AND IN THE MATTER OF SECTIONS 4, 5, 9, 12, 13, 14, 15 AND 84 OF CONSUMER PROTECTION ACT, ACT NO. 14 OF 2012, LAWS OF KENYA
AND
IN THE MATTER OF A CONSTITUTIONAL PETITION
BY
COAST BUS LIMITED………....……….……………PETITIONER/APPLICANT
VERSUS
THE COMMISSIONER OF INSURANCE……………...….....1ST RESPONDENT
THE INSURANCE REGULATORY AUTHORITY…………..2ND RESPONDENT THE CABINET SECRETARY, FOR THE NATIONAL
TREASURY & ECONOMIC PLANNING…...........................3RD RESPONDENT
THE HON. ATTORNEY GENERAL……………………….4TH RESPONDENT DIRECTLINE ASSURANCE CO. LTD……………………......5TH RESPONDENT THE CABINET SECRETARY FOR MINISTRY OF INDUSTRY,
TRADE AND ENTERPRISE DEVELOPMENT…...................6TH RESPONDENT
THE NATIONAL ASSEMBLY OF KENYA………….........….7TH RESPONDENT
AND
ASSOCIATION OF KENYA INSURERS (AKI)……...….1ST INTERESTED PARTY
KENYA CONSUMERS PROTECTION
ADVISORY COMMITTEE........................................2ND INTERESTED PARTY
KENYA REINSURANCE CORPORATION LTD….......3RD INTERESTED PARTY
RULING
Introduction
1. The Applicant/Petitioner has filed a Notice of motion application dated 1st December 2025 seeking that pending the hearing and determination of the Petition herein, this Honourable Court be pleased to issue a Conservatory Order by way of an injunction, prohibiting the execution of all processes levied in suits against the Petitioner as a policyholder of DIRECTLINE ASSURANCE COMPANY LTD such as listed in the schedule marked "SH-4" annexed to the Supporting Affidavit of SIDIK HASHMY herein sworn on 1st December 2025 lodged in this Petition; being the schedule of claims against the Petitioner in proceedings wherein the said DIRECTLINE ASSURANCE COMPANY LTD has expressly assumed liability to defend all the claims and settle the same on behalf of the named Petitioner as a policyholders, and all such arising Claims, which liability ought to be fully shouldered by the said DIRECTLINE ASSURANCE COMPANY LTD, pursuant to Article 46(1)(c) of the Constitution of Kenya.
2. The application is supported by the affidavit of SIDIK HASHMY and is premises on the grounds on the face of the application.
3. The application is opposed by the 1st, 2nd, 3rd, 4th and 6th Respondents. The 1st and 2nd Respondents filed grounds of opposition dated 19th January 2026 while the 3rd, 4th and 6th Respondents filed grounds of opposition dated 26th January 2026.
4. The application was canvassed by way of written submissions. The Applicant/Petitioner, the 1st & 2nd Respondents as well as the 3rd, 4th & 6th Respondents filed and exchanged their respective submissions to the application dated 1st December 2025.
The Applicant’s position
5. The Applicant/Petitioner argues that Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act Cap 405 mandates that the insurer named herein shall, subject to the provisions of the said section,
"pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments."
6. This mandate is subject only to the capped amounts under the equally impugned Section 5(b)(iv) of the said Act. The Decree holders of such Claims are entitled to be paid by the insurer, and this liability ought not to be passed on to the Policyholders members of the Petitioner herein as though this law on insurance does not exist, as is now happening.
7. Unquestionably, in enacting the said provision, Parliament intended that such of the PSV insurers subject of these proceedings should bear the risk and liability of such judgements, decrees, certificates of taxed costs and arising interests by paying to such of the persons entitled to the benefit thereof, as long as the Petitioner holds paid-for valid policies with the said insurers.
8. Under Article 23 (3) (c) as read together with Article 22 of the Constitution of Kenya, this Honourable Court is enjoined to grant an appropriate relief, including a conservatory order.
9. Article 23 of the Constitution of Kenya as read with Article 165 and Rule 23(1) of the Constitution of Kenya (Protection of rights and Fundamental Freedom) Practice and Procedure Rules, 2013, (“Mutunga Rules") accords this Honourable Court power to hear and determine an application for conservatory orders or interim orders in order to secure the subject matter in despite. Rule 23(1) of the Mutunga Rules provides: -
"1) Despite any provision to the contrary, a Judge before whom a Petition under rule 4 is presented shall hear and determine an application for conservatory or interim order.” [emphasis added]
10. The Petitioner is a duly licensed Public Service Vehicle (PSVs) operator of various carrying capacities plying their licensed PSVs within Nairobi County and elsewhere within the Republic of Kenya.
11. Section 4(1) of the Insurance (Motor Vehicles Third Party Risks) Act Cap 405 Laws of Kenya makes it mandatory for every motor vehicle to have a valid Third-Party Insurance Cover, from such of the insurance companies licensed by the 1st and 2nd Respondents herein to provide the applicable class of insurance for such PSVs.
12. The cited PSV insurers, upon proof of declared liability stands liable to settle third party injury claims during the currency of the policy of insurance.
13. In spite of the Petitioner having paid for and secured the stated mandatory insurance, they have been met with increasing dishonour of the arising decrees, judgements and commitments to settle such subrogated claims as made by their stated PSV insurers, thereby exposing them to unwarranted, unfair and oppressive execution processes, adverse and to the detriment of their personal liabilities; even the loss of their properties, in meeting the execution processes, hence provoking these proceedings in defence of their Article 46(1)(a) and (c) Constitutional rights.
14. The balance of convenience in light of the very grave Constitutional Violations cited, tips in favour of issuing Conservatory Orders rather than permitting the unlawful executions complained of to unjustly be visited on the Petitioner as demonstrated.
15. Pursuant to Section 12(1) of the Consumer Protection Act, it is an unfair practice for any person such as the cited Respondents herein, to make a false, misleading or deceptive representations to inter alia a consumer of a service.
16. Section 15 of the Consumer Protection Act expressly outlaws all unfair practices in any service industry, including the insurance industry such as complained of herein, which violations entitle this Honourable Court to intervene as sought, in furtherance of Article 27(1) of the Constitution of Kenya which affords the Petitioner the protection of the law.
17. The Constitutional Petition herein relates to three facets of the Petitioner Policy holder’s' Petition invoking this Honourable Court's Constitutional jurisdiction urgent intervention:
a. Breach of the said affected Petitioner’s Consumer rights under Article 46(1)(a) and (c) of the Constitution of Kenya in relation to the breach of the said provisions by licensed and operating PSV insurers:
b. Breach of the said affected Petitioner’s Consumer rights under Article 46(1)(a) and (c) of the Constitution of Kenya in relation to the Commissioner of Insurance violating the Petitioner’s policyholders' Constitutional rights;
c. Breach of the said affected Petitioner’s Consumer rights under Article 46(1)(a) and (c) of the Constitution of Kenya in relation to licensed and operating PSV insurers oppressively invoking Section 5(b)(iv) of Cap 405 to settle only part of the claims levied by third parties not exceeding Kshs.3,000,000/= in cases of such insurers without alerting the Petitioner as a policyholder, and in spite of the existence of reinsurers such as the 3rd Interested Party herein being bound to reinsure the insurers; which insurers having properly and fully assumed the obligation to settle such claims arising under the Petitioner’s insured claims failing to either fully meet the same or altogether turning to abandon settlement thereof which claims are then levied on the Petitioner’s insuring policyholder in violation of Article 46(1)(a) and (c) of the Constitution of Kenya
18. After receiving the due premiums from the Petitioner for the stated insurance services while representing that the arising insurance obligations owed thereunder will be fulfilled, the insurers named herein have increasingly failed to honour their statutory commitments even after assuming the liability to settle such claims, decrees, judgements and obligations under the subject policies, in violation of the Petitioner’s rights under Article 46(1)(a) and (c) of the Constitution of Kenya.
19. After receiving the due premiums from the Petitioner for the stated insurance services while representing that the arising insurance obligations owed thereunder will be fulfilled, the insurers named herein have increasingly failed to honour their statutory commitments even after assuming the liability to settle such claims, decrees, judgements and obligations under the subject policies, in violation of the Petitioner’s rights under Article 46(1)(c) of the Constitution of Kenya.
20. As the responsible entities for the regulation of the insurance industry, the 1st and 2nd Respondents have been aware all along that such of the PSV insurance services rendering companies licensed under the purview of the Insurance Regulatory Authority are NOT even supposed to be granted operating current insurance licenses on account of their inability to pay lawfully levied insurance claims, yet the said Respondents have in fact licensed, openly permitted, actively given leeway, and enabled the unfair insurance practices complained of in the Kenya PSV insuring industry, detrimental to the Petitioner as a policy holder.
21. In spite of this clear knowledge, the 1st and 2nd Respondents have licensed the said insurers named herein and hence contributed directly to the stated breaches of Article 46(1)(a) and (c) Constitutional rights of the Petitioner in respect of its PSVs.
22. Whereas the 2nd Respondent Insurance Regulatory Authority represents to all and sundry on its website at https://ira.go.ke/ the following commitments:
"The Insurance Regulatory Authority is a statutory government agency established under the Insurance Act, CAP 487 of the Laws of Kenya to regulate, supervise and promote the development of the insurance industry in Kenya. In executing our mandate, we adhere to the core principles of objectivity, accountability and transparency in promoting not only compliance but also sound business practices." [emphasis added]
23. In reality, the IRA has done the opposite of this, in respect of the Petitioner’s PSV insurer subject of this Petition.
24. There is neither accountability nor transparency in the operations of the cited PSV insurers supervised in their rogue operations by the IRA, to the detriment and loss of the Petitioner, and in the result the Petitioner has had to seek the protection of the law.
25. Pursuant to the Section 17(2) of the Insurance Act's amendment effective 23rd July 2019, the 1 st Respondent (Commissioner of Insurance) was granted legislative power to act directly on investigation reports regarding the PSV insurers subject of these proceedings. He has failed to exercise this statutory power protect the Petitioner as a policy holder of the said PSV insurers resulting in the warrants of attachment and imprisonment issuing against the Petitioner as herein complained of.
26. Had the 1st Respondent diligently, objectively, and faithfully exercised this legislative power, the egregious infractions of the said PSV insurers leading to the unhappy scenario complained of herein in respect of the continuing violations of Article 46(1)(a) and (c) of the Constitution of Kenya would never have arisen.
27. The 1st Respondent is therefore culpable in a manner that constitutes open breach of the said Constitutional imperatives, even amounting to malfeasance.
28. Section 16(10) of the Consumer Protection Act enjoins this Honourable Court to hold the 1st and 2nd Respondents jointly and severally liable for such breaches, together with the respective defaulting insurers for the damage occasioned to the Petitioner’s ruin of their economic interests under the claims arising from their PSVs so insured.
29. Indeed, Article 46(1)(c) of the Constitution of Kenya specifically provides that "Consumers [such as the Petitioner herein, of PSV insurance services] have the right to the protection of their health, safety, and economic interests” and under Article 46(1)(d) of the Constitution of Kenya, the Petitioner as such consumer has a right to "compensation for loss and injury arising from defects in goods and services".
30. To the extent that the 1st and 2nd Respondents have therefore directly contributed to the breaches of the Petitioner’s Article 46(1)(a), and (c) Constitutional rights complained of in aiding and abetting the affected insurance companies to violate the Petitioner’s stated rights, the 1st and 2nd Respondents ought to bear all the arising liabilities as pleaded herein, as envisaged under Article 46(1)(d) of the Constitution of Kenya, necessitating the issuance of the conservatory orders sought.
31. The Consumer Protection Act being the contemplated legislative framework under Article 46(2) of the Constitution of Kenya, and enacted to give effect to the rights afforded to the Petitioner on the delivery of the paid-for PSV insurance services by such of the licensed PSV insurers under Article 46(1) of the Constitution of Kenya, the Petitioner’s claim is properly before the Court.
32. Section 12(1)(h) of the Consumer Protection Act specifically provides that "a representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed" amounts to an unfair practice.
33. Indeed, upon the Petitioner insuring its PSVs with Directline Assurance Company and whenever road traffic accidents have precipitated litigation thereon, the said insurer has been exercising subrogation rights invariably and instructing advocates in their panel to prosecute such claims on behalf of the Petitioner as a policyholder under the doctrine of subrogation, only for the said insurer to fail to honour the commitments made to remit such of the decretal sums made against the policyholders under Directline Assurance Company Limited in a manner the constitutes unfair practice.
34. In spite of the statutory amendment to Section 199 of the Insurance Act allowing for such notices of pendency of such proceedings, status, and outcome thereof under subrogated claims by the advocates acting under the instruction of the insurer as required to be sent to a policyholder under the Insurance Act via an email or other electronic mode in addition to the use of post, the Policyholder have been kept in the dark.
35. Indeed, pursuant to Section 12 (1A) of the Insurance (Motor Vehicle Third Party Risks) Act the subject PSV insurers are obligated to respond to a statutory notice. In mandatory terms these PSV insurers are bound, upon being served with such statutory notices and documents, admit or deny liability for the claim or judgment by a notice in writing to the person or persons presenting the claim or judgment. The Petitioner as a policyholder is entitled to have this notification as well.
36. The Petitioner has been dismayed to establish that some claims are lodged by Claimants who violate Section 10(2)(a) of Cap 405 and serve process directly on the cited PSV insurers wholly bypassing them (as the policyholders), and the PSV insurers then take up such claims under the subrogation doctrine. This has been the main conduit of fraud and false claims, which the Petitioner is then forced to unlawfully settle.
37. The Petitioner as a policyholder is thence deprived of the opportunity to interrogate the validity of such claims. It would be unconscionable and unjust to permit execution of such claims against Petitioner when the respective PSV insurer stands bound as the precipitator of such injustice.
38. This is a direct breach of Article 35(1)(b) of the Constitution of Kenya, by the agents (Advocates instructed by the insurer) of the Respondent (Directline Assurance Company Limited), demonstrating the prima facie bases of the Petitioner’s Petition.
39. The decretal sums thus not being remitted by the stated PSV insurers (all within the knowledge of the 1st and 2nd Respondents herein), the Petitioner’s rights under Article 46(1)(a) and (c) of the Constitution of Kenya as read with Section 12(1) (i) of the Consumer Act have been, and continue to stand violated; which is altogether a breach of the Principle of Rule of Law under Article 10(2)(a) of the Constitution of Kenya, necessitating the Constitutional Court's intervention as pleaded herein.
40. Section 12(1)(i) of the Consumer Protection Act classifies such representations as complained of (where the insurer makes to the Petitioner that their PSV insurance services or any part of them will be available or can be performed by a specified time when the person making the representation knows or ought to know they will not be available) as an unfair practice.
41. In failing to honour such of the obligatory indemnity clauses and subrogated claims the PSV insurers subject of these proceedings have taken up, and are bound under the subsisting insurance policies with the Petitioner's members to honour, while representing that they (the insurers) will honour all such commitments upon receipt from their Policyholders such of the levied insurance premiums, the said conduct amounts to unconscionable representation, which is outlawed under Section 13(2) of the Consumer Protection Act.
42. Such unconscionable conduct as explicated in Section 13(2)(a) to (h) therefore is which the insurers stated herein are guilty of, comprises a breach of Article 46(1) of the Constitution of Kenya.
43. Pursuant to Article 23 of the Constitution of Kenya, this Honourable Court as a Constitutional Court is entitled to intervene in protection of the Petitioner’s rights espoused in Article 46 of the Constitution of Kenya, which is the primary basis of the Petition herein.
44. In demonstration of the establishment of a prima facie case by the Petitioner herein, the Petitioner seeks from this Constitutional Court the declaration that as Policyholders of Insurance companies regulated by the Insurance Regulatory Authority such Petitioner’s consumer rights guaranteed under Article 46 of the Constitution of Kenya, 2010 as read together with the Consumer Protection Act, 2012, have been violated by the Respondents, and are in continued infringement by the exposure the Petitioner to personally meet the claims levied by third parties, which claims ought to be lawfully settled by the failing insurer.
45. The issuance of the conservatory orders sought herein clearly cannot be in breach of the law, is in the public interest in deference to the Principle of Rule of Law espoused in Article 10(2)(a) of the Constitution of Kenya, and by extension when the Petitioner with the stated insurance company withhold to meet and/or satisfy any Court decree against the Petitioner, they are in breach of their Constitutional obligation espoused in Article 46(1)(a) and (c) of the Constitution of Kenya.
46. The financial distress of the cited failed PSV insurers that have precipitated the present Claim failed to meet the obligation set out in Section 203 of the Insurance Act as read together with the Principal Regulation 48 of the Insurance Act mandating every Insurer to file with the Insurance Regulatory Authority monthly and annual returns in the prescribed format as provided thereunder.
47. Had this obligation been strictly enforced by the 2nd Respondent IRA as against the failed PSV insurers the financial inabilities of the said failed insurers to settle the third-party claims which they are bound to settle would have been timeously detected, thereby pre-empting the oppressive and Constitutionally-unacceptable infringements complained of herein.
48. The Petitioner contends that by so defaulting to meet the IRA set obligations (which standards have been communicated to the Petitioner and their members as well as the general public generally and posted at the IRA's website: https://ira.go.ke/resource/claims-guidelines-presentation/), the IRA failed in its statutory mandate to supervise and regulate the PSV general insurance business operated by the failed insurers herein, by reason of which it is guilty of actionable malfeasance.
49. Meanwhile, the Petitioner contend that the obligation stands binding on the respective Statutory Managers of the affected insurance companies to determine the relevant ratios of the payments to be paid as against the unsettled claims levied on the Petitioner, thereby warranting the issuance of the Conservatory Orders sought.
50. Absent the intervention sought, the threat to the Petitioner as a Policyholder with the stated insurer stands in looming jeopardy in a manner that violates Articles 26(1), 27(1) and (4), 28, 29, 46(1)(a) and (c) of the Constitution of Kenya as well as Article 258 of the Constitution of Kenya.
51. As at when the accidents now giving rise to the 3rd Parties' claims against the Petitioner by the Third Parties arose, the Petitioner had valid subsisting policies with the insurer, Directline Assurance Co. Ltd, cited herein.
52. Indeed, the Petitioner had faithfully met its obligations to pay the requisite premiums and other ancillary fees levied on them by the said Insurers, and as such the Petitioner stood, and do stands absolved from personal liability of whatever kind, for the Third-Party risks now levied on them, but properly accruing to the Insured.
53. The Petitioner’s fundamental rights as guaranteed under the Constitution of Kenya, 2010 stated in paragraph 51 above are now threatened as a consequence of the mala fides acts of the Commissioner of Insurance who has callously acted in a complicit fashion with the Insurance Regulatory Authority, leaving the Petitioner perilously exposed to harassment by third parties demanding that the Petitioner, a PSVs operators personally meet liabilities properly falling to be met by the said Insurer.
54. By reason of this express breach, the Petitioner is entitled to the declarations as sought in the Petition herein, and the Conservatory Orders in the interlocutory Motion as prayed.
55. The mandatory Third-Party insurance policies held by the Petitioner in furtherance of public policy dictate that the cited insurers and the 5th Respondent do honour and discharge their obligations thereunder; which they have failed to do, leaving the Petitioner at the mercy of third-Party claimants.
56. As stated above, all of the claims levied against the Petitioner as a Policy holder was a consequence of this PSV insurers defending the claims under undisputed subrogation rights, where the Policy holder is assured of the settlement of the respective claims in a lawful manner, and which operates as statutory estoppel in regard to the settlement of such claims.
57. As these Third Parties now seek to satisfy their Third Party Claims judgments/decrees against the Petitioner as a policyholder of Directline Assurance Ltd consequent upon the failed insurer defaulting in settling the said subrogated claims, these 3rd parties have turned to direct these variant execution processes directly against the Petitioner, thereby infringing on the Petitioner’s Constitutional rights to liberty and ownership of property without let or hindrance.
58. This is untenable, as the net effect is the unlawful and unconstitutional treatment of the Petitioner as criminals who had never taken out insurance policies with the said insurers, (which is certainly not the case). This Honourable Court can neither countenance nor blink at these naked infractions of the law by the 1st and 2nd Respondents.
59. The 1st Respondent as the Commissioner of Insurance and the 2nd Respondent Insurance Regulatory Authority both have acted in bad faith through and through, when they failed to diligently and properly supervise the PSV underwriting insurers in the said business and in the regulation of the financial affairs of the Respective PSV insurers cited herein, resulting in their sudden and inauspicious collapse.
60. The third aspect of the Petition herein entitling the Court to intervene is the expressed spirit and tenor of the Insurance Act, Cap 487 as read with the Insurance (Third Party Risks) Act, Cap 405, which is to afford legal protection envisaged under Article 27(1) of the Constitution of Kenya to both the policy holder (Petitioner) and the insuring public (The Third Parties).
61. Irrationally, unfairly and in a Constitutionally-prohibited discriminatory manner contravening Article 27(4) of the Constitution of Kenya, the Petitioner's members' Policyholders of PSV covers issued by the cited insurers do not cover liability in excess of Ksh.3,000,000/= (Kenya Shillings Three Million) by dint of Section 5(b) of Cap 405 yet by dint of the Insurance Regulatory Authority's prescribed "Private Motor Vehicle Insurance Schedule" (posted to all and sundry at https://ira.go.ke/resource/private-motor-schedule/) states that the maximum cap of "a series of claims arising out of one event is unlimited".
62. In the result, the maximum amount payable by the PSV insurers in respect of claims by each person is Kshs.3,000,000/= and the Petitioner insured caters for the amounts over and above the stated amount as though there was no insurance cover in the first place.
63. Although the said Section 5(b)(iv) of the Insurance (Motor Vehicles Third Party Risks) Act (Cap 405) Laws of Kenya was introduced vide Section 34 of the Finance Act, 2006 and which was operationalized on 1st January, 2007, it has the net effect of breaching Article 27(4) of the Constitution of Kenya as stated in paragraph 62 above and must be struck down.
64. Pursuant to Section 197(2) of the Insurance Act, such of the PSV insurers cited herein and licensed under the legislative regime of the Insurance Act for the carrying on of insurance business are bound in mandatory terms to keep updated records of the name of every policyholder, policy number, premium paid, subject matter of insurance, the date of the inception of the policy, date of renewal, sum insured, the amount and date of claim made, the date on which the claim was paid, the amount paid, and, in the event of a claim being repudiated, the date and reasons for repudiation, and, in the event of partial settlement, the reasons therefor.
65. Equality before the law is espoused in Article 27(1) of the Constitution of Kenya, and which Constitutional imperative has been openly violated by the Respondents as herein complained of, as stated herein above.
66. Effectively the said law is being utilized to burden the PSV industry (in which the Petitioner operates) to unfairly subsidizing the insurance industry without any checks and balances to weed out falsified claims, fraudulent insurance conduct, and professional misconduct by busybodies (ambulance chasers).
67. By causing the Petitioner as such insurance companies' policyholder to be now burdened personally with the obligations of meeting FULL Third-Party risk claims (which properly ought to be met by the stated PSV Insurers), the Respondents have caused the Petitioner to be treated in a manner that deprives them of the due protection of the law, in breach of Article 27(1) of the Constitution of Kenya. The legislative-mandated third party Risks insurance imposed on the Petitioner creates an obligation on the PSV Insurers duly licensed to operate by the Commissioner of Insurance as such and under the supervision of the Insurance Regulatory Authority to ensure the settlement of the said Claims in furtherance of the Principle of Rule of Law espoused in Article 10(2)(a) of the Constitution of Kenya.
68. Rather, and in naked unmitigated malfeasance, the Petitioner has been subjected to discriminatory practices by the Respondents, where demands of the law as stipulated in Articles 10(2) and 46(1) of the Constitution of Kenya have not been applied equally to policy holders insured by the stated insurance companies, necessitating the intervention of this Honourable Court.
69. Owing to the very great public importance of the Petition herein, and the issues it raises being of great public importance touching on public policy with regard to the compulsory Third Party Insurance claims, and given the scope and application of Article 258 of the Constitution of Kenya, it is imperative that Judicial Time and resources be saved by permitting the Petition herein to be treated as a representative suit and/or affording like individuals with similar claims to be enjoined in the proceedings to conclusively deal with this issue and avoid replication of like su
[...truncated]
IN THE HIGH COURT OF KENYA АТ MACHAKOS
CONSTITUTIONAL PETITION NO. E048 OF 2025
IN THE MATTER OF THE INSURANCE ACT, CAP 487
AND
IN THE MATTER OF THE ENFORCEMENT OF FUNDAMENTAL RIGHTS & FREEDOMS UNDER ARTICLE 23 & 258 OF THE CONSTITUTION OF KENYА
AND
IN THE MATTER OF THE BREACH & THREATENED BREACH OF ARTICLES 10, 27(1), 28, 30, 35(1)(b), 40, 46(1)(a), (c), &(d), 48, 50(1), & 258 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL) PRACTICE & PROCEDURE RULES 2013, LEGAL NOTICE NO. 117 OF 2013
AND
IN THE MATTER OF THE INSURANCE (THIRD PARTY RISKS) AСТ, САР 405 AND IN THE MATTER OF SECTIONS 4, 5, 9, 12, 13, 14, 15 AND 84 OF CONSUMER PROTECTION ACT, ACT NO. 14 OF 2012, LAWS OF KENYA
AND
IN THE MATTER OF A CONSTITUTIONAL PETITION
BY
COAST BUS LIMITED………....……….……………PETITIONER/APPLICANT
VERSUS
THE COMMISSIONER OF INSURANCE……………...….....1ST RESPONDENT
THE INSURANCE REGULATORY AUTHORITY…………..2ND RESPONDENT THE CABINET SECRETARY, FOR THE NATIONAL
TREASURY & ECONOMIC PLANNING…...........................3RD RESPONDENT
THE HON. ATTORNEY GENERAL……………………….4TH RESPONDENT DIRECTLINE ASSURANCE CO. LTD……………………......5TH RESPONDENT THE CABINET SECRETARY FOR MINISTRY OF INDUSTRY,
TRADE AND ENTERPRISE DEVELOPMENT…...................6TH RESPONDENT
THE NATIONAL ASSEMBLY OF KENYA………….........….7TH RESPONDENT
AND
ASSOCIATION OF KENYA INSURERS (AKI)……...….1ST INTERESTED PARTY
KENYA CONSUMERS PROTECTION
ADVISORY COMMITTEE........................................2ND INTERESTED PARTY
KENYA REINSURANCE CORPORATION LTD….......3RD INTERESTED PARTY
RULING
Introduction
1. The Applicant/Petitioner has filed a Notice of motion application dated 1st December 2025 seeking that pending the hearing and determination of the Petition herein, this Honourable Court be pleased to issue a Conservatory Order by way of an injunction, prohibiting the execution of all processes levied in suits against the Petitioner as a policyholder of DIRECTLINE ASSURANCE COMPANY LTD such as listed in the schedule marked "SH-4" annexed to the Supporting Affidavit of SIDIK HASHMY herein sworn on 1st December 2025 lodged in this Petition; being the schedule of claims against the Petitioner in proceedings wherein the said DIRECTLINE ASSURANCE COMPANY LTD has expressly assumed liability to defend all the claims and settle the same on behalf of the named Petitioner as a policyholders, and all such arising Claims, which liability ought to be fully shouldered by the said DIRECTLINE ASSURANCE COMPANY LTD, pursuant to Article 46(1)(c) of the Constitution of Kenya.
2. The application is supported by the affidavit of SIDIK HASHMY and is premises on the grounds on the face of the application.
3. The application is opposed by the 1st, 2nd, 3rd, 4th and 6th Respondents. The 1st and 2nd Respondents filed grounds of opposition dated 19th January 2026 while the 3rd, 4th and 6th Respondents filed grounds of opposition dated 26th January 2026.
4. The application was canvassed by way of written submissions. The Applicant/Petitioner, the 1st & 2nd Respondents as well as the 3rd, 4th & 6th Respondents filed and exchanged their respective submissions to the application dated 1st December 2025.
The Applicant’s position
5. The Applicant/Petitioner argues that Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act Cap 405 mandates that the insurer named herein shall, subject to the provisions of the said section,
"pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments."
6. This mandate is subject only to the capped amounts under the equally impugned Section 5(b)(iv) of the said Act. The Decree holders of such Claims are entitled to be paid by the insurer, and this liability ought not to be passed on to the Policyholders members of the Petitioner herein as though this law on insurance does not exist, as is now happening.
7. Unquestionably, in enacting the said provision, Parliament intended that such of the PSV insurers subject of these proceedings should bear the risk and liability of such judgements, decrees, certificates of taxed costs and arising interests by paying to such of the persons entitled to the benefit thereof, as long as the Petitioner holds paid-for valid policies with the said insurers.
8. Under Article 23 (3) (c) as read together with Article 22 of the Constitution of Kenya, this Honourable Court is enjoined to grant an appropriate relief, including a conservatory order.
9. Article 23 of the Constitution of Kenya as read with Article 165 and Rule 23(1) of the Constitution of Kenya (Protection of rights and Fundamental Freedom) Practice and Procedure Rules, 2013, (“Mutunga Rules") accords this Honourable Court power to hear and determine an application for conservatory orders or interim orders in order to secure the subject matter in despite. Rule 23(1) of the Mutunga Rules provides: -
"1) Despite any provision to the contrary, a Judge before whom a Petition under rule 4 is presented shall hear and determine an application for conservatory or interim order.” [emphasis added]
10. The Petitioner is a duly licensed Public Service Vehicle (PSVs) operator of various carrying capacities plying their licensed PSVs within Nairobi County and elsewhere within the Republic of Kenya.
11. Section 4(1) of the Insurance (Motor Vehicles Third Party Risks) Act Cap 405 Laws of Kenya makes it mandatory for every motor vehicle to have a valid Third-Party Insurance Cover, from such of the insurance companies licensed by the 1st and 2nd Respondents herein to provide the applicable class of insurance for such PSVs.
12. The cited PSV insurers, upon proof of declared liability stands liable to settle third party injury claims during the currency of the policy of insurance.
13. In spite of the Petitioner having paid for and secured the stated mandatory insurance, they have been met with increasing dishonour of the arising decrees, judgements and commitments to settle such subrogated claims as made by their stated PSV insurers, thereby exposing them to unwarranted, unfair and oppressive execution processes, adverse and to the detriment of their personal liabilities; even the loss of their properties, in meeting the execution processes, hence provoking these proceedings in defence of their Article 46(1)(a) and (c) Constitutional rights.
14. The balance of convenience in light of the very grave Constitutional Violations cited, tips in favour of issuing Conservatory Orders rather than permitting the unlawful executions complained of to unjustly be visited on the Petitioner as demonstrated.
15. Pursuant to Section 12(1) of the Consumer Protection Act, it is an unfair practice for any person such as the cited Respondents herein, to make a false, misleading or deceptive representations to inter alia a consumer of a service.
16. Section 15 of the Consumer Protection Act expressly outlaws all unfair practices in any service industry, including the insurance industry such as complained of herein, which violations entitle this Honourable Court to intervene as sought, in furtherance of Article 27(1) of the Constitution of Kenya which affords the Petitioner the protection of the law.
17. The Constitutional Petition herein relates to three facets of the Petitioner Policy holder’s' Petition invoking this Honourable Court's Constitutional jurisdiction urgent intervention:
a. Breach of the said affected Petitioner’s Consumer rights under Article 46(1)(a) and (c) of the Constitution of Kenya in relation to the breach of the said provisions by licensed and operating PSV insurers:
b. Breach of the said affected Petitioner’s Consumer rights under Article 46(1)(a) and (c) of the Constitution of Kenya in relation to the Commissioner of Insurance violating the Petitioner’s policyholders' Constitutional rights;
c. Breach of the said affected Petitioner’s Consumer rights under Article 46(1)(a) and (c) of the Constitution of Kenya in relation to licensed and operating PSV insurers oppressively invoking Section 5(b)(iv) of Cap 405 to settle only part of the claims levied by third parties not exceeding Kshs.3,000,000/= in cases of such insurers without alerting the Petitioner as a policyholder, and in spite of the existence of reinsurers such as the 3rd Interested Party herein being bound to reinsure the insurers; which insurers having properly and fully assumed the obligation to settle such claims arising under the Petitioner’s insured claims failing to either fully meet the same or altogether turning to abandon settlement thereof which claims are then levied on the Petitioner’s insuring policyholder in violation of Article 46(1)(a) and (c) of the Constitution of Kenya
18. After receiving the due premiums from the Petitioner for the stated insurance services while representing that the arising insurance obligations owed thereunder will be fulfilled, the insurers named herein have increasingly failed to honour their statutory commitments even after assuming the liability to settle such claims, decrees, judgements and obligations under the subject policies, in violation of the Petitioner’s rights under Article 46(1)(a) and (c) of the Constitution of Kenya.
19. After receiving the due premiums from the Petitioner for the stated insurance services while representing that the arising insurance obligations owed thereunder will be fulfilled, the insurers named herein have increasingly failed to honour their statutory commitments even after assuming the liability to settle such claims, decrees, judgements and obligations under the subject policies, in violation of the Petitioner’s rights under Article 46(1)(c) of the Constitution of Kenya.
20. As the responsible entities for the regulation of the insurance industry, the 1st and 2nd Respondents have been aware all along that such of the PSV insurance services rendering companies licensed under the purview of the Insurance Regulatory Authority are NOT even supposed to be granted operating current insurance licenses on account of their inability to pay lawfully levied insurance claims, yet the said Respondents have in fact licensed, openly permitted, actively given leeway, and enabled the unfair insurance practices complained of in the Kenya PSV insuring industry, detrimental to the Petitioner as a policy holder.
21. In spite of this clear knowledge, the 1st and 2nd Respondents have licensed the said insurers named herein and hence contributed directly to the stated breaches of Article 46(1)(a) and (c) Constitutional rights of the Petitioner in respect of its PSVs.
22. Whereas the 2nd Respondent Insurance Regulatory Authority represents to all and sundry on its website at https://ira.go.ke/ the following commitments:
"The Insurance Regulatory Authority is a statutory government agency established under the Insurance Act, CAP 487 of the Laws of Kenya to regulate, supervise and promote the development of the insurance industry in Kenya. In executing our mandate, we adhere to the core principles of objectivity, accountability and transparency in promoting not only compliance but also sound business practices." [emphasis added]
23. In reality, the IRA has done the opposite of this, in respect of the Petitioner’s PSV insurer subject of this Petition.
24. There is neither accountability nor transparency in the operations of the cited PSV insurers supervised in their rogue operations by the IRA, to the detriment and loss of the Petitioner, and in the result the Petitioner has had to seek the protection of the law.
25. Pursuant to the Section 17(2) of the Insurance Act's amendment effective 23rd July 2019, the 1 st Respondent (Commissioner of Insurance) was granted legislative power to act directly on investigation reports regarding the PSV insurers subject of these proceedings. He has failed to exercise this statutory power protect the Petitioner as a policy holder of the said PSV insurers resulting in the warrants of attachment and imprisonment issuing against the Petitioner as herein complained of.
26. Had the 1st Respondent diligently, objectively, and faithfully exercised this legislative power, the egregious infractions of the said PSV insurers leading to the unhappy scenario complained of herein in respect of the continuing violations of Article 46(1)(a) and (c) of the Constitution of Kenya would never have arisen.
27. The 1st Respondent is therefore culpable in a manner that constitutes open breach of the said Constitutional imperatives, even amounting to malfeasance.
28. Section 16(10) of the Consumer Protection Act enjoins this Honourable Court to hold the 1st and 2nd Respondents jointly and severally liable for such breaches, together with the respective defaulting insurers for the damage occasioned to the Petitioner’s ruin of their economic interests under the claims arising from their PSVs so insured.
29. Indeed, Article 46(1)(c) of the Constitution of Kenya specifically provides that "Consumers [such as the Petitioner herein, of PSV insurance services] have the right to the protection of their health, safety, and economic interests” and under Article 46(1)(d) of the Constitution of Kenya, the Petitioner as such consumer has a right to "compensation for loss and injury arising from defects in goods and services".
30. To the extent that the 1st and 2nd Respondents have therefore directly contributed to the breaches of the Petitioner’s Article 46(1)(a), and (c) Constitutional rights complained of in aiding and abetting the affected insurance companies to violate the Petitioner’s stated rights, the 1st and 2nd Respondents ought to bear all the arising liabilities as pleaded herein, as envisaged under Article 46(1)(d) of the Constitution of Kenya, necessitating the issuance of the conservatory orders sought.
31. The Consumer Protection Act being the contemplated legislative framework under Article 46(2) of the Constitution of Kenya, and enacted to give effect to the rights afforded to the Petitioner on the delivery of the paid-for PSV insurance services by such of the licensed PSV insurers under Article 46(1) of the Constitution of Kenya, the Petitioner’s claim is properly before the Court.
32. Section 12(1)(h) of the Consumer Protection Act specifically provides that "a representation that the goods or services or any part of them are available or can be delivered or performed when the person making the representation knows or ought to know they are not available or cannot be delivered or performed" amounts to an unfair practice.
33. Indeed, upon the Petitioner insuring its PSVs with Directline Assurance Company and whenever road traffic accidents have precipitated litigation thereon, the said insurer has been exercising subrogation rights invariably and instructing advocates in their panel to prosecute such claims on behalf of the Petitioner as a policyholder under the doctrine of subrogation, only for the said insurer to fail to honour the commitments made to remit such of the decretal sums made against the policyholders under Directline Assurance Company Limited in a manner the constitutes unfair practice.
34. In spite of the statutory amendment to Section 199 of the Insurance Act allowing for such notices of pendency of such proceedings, status, and outcome thereof under subrogated claims by the advocates acting under the instruction of the insurer as required to be sent to a policyholder under the Insurance Act via an email or other electronic mode in addition to the use of post, the Policyholder have been kept in the dark.
35. Indeed, pursuant to Section 12 (1A) of the Insurance (Motor Vehicle Third Party Risks) Act the subject PSV insurers are obligated to respond to a statutory notice. In mandatory terms these PSV insurers are bound, upon being served with such statutory notices and documents, admit or deny liability for the claim or judgment by a notice in writing to the person or persons presenting the claim or judgment. The Petitioner as a policyholder is entitled to have this notification as well.
36. The Petitioner has been dismayed to establish that some claims are lodged by Claimants who violate Section 10(2)(a) of Cap 405 and serve process directly on the cited PSV insurers wholly bypassing them (as the policyholders), and the PSV insurers then take up such claims under the subrogation doctrine. This has been the main conduit of fraud and false claims, which the Petitioner is then forced to unlawfully settle.
37. The Petitioner as a policyholder is thence deprived of the opportunity to interrogate the validity of such claims. It would be unconscionable and unjust to permit execution of such claims against Petitioner when the respective PSV insurer stands bound as the precipitator of such injustice.
38. This is a direct breach of Article 35(1)(b) of the Constitution of Kenya, by the agents (Advocates instructed by the insurer) of the Respondent (Directline Assurance Company Limited), demonstrating the prima facie bases of the Petitioner’s Petition.
39. The decretal sums thus not being remitted by the stated PSV insurers (all within the knowledge of the 1st and 2nd Respondents herein), the Petitioner’s rights under Article 46(1)(a) and (c) of the Constitution of Kenya as read with Section 12(1) (i) of the Consumer Act have been, and continue to stand violated; which is altogether a breach of the Principle of Rule of Law under Article 10(2)(a) of the Constitution of Kenya, necessitating the Constitutional Court's intervention as pleaded herein.
40. Section 12(1)(i) of the Consumer Protection Act classifies such representations as complained of (where the insurer makes to the Petitioner that their PSV insurance services or any part of them will be available or can be performed by a specified time when the person making the representation knows or ought to know they will not be available) as an unfair practice.
41. In failing to honour such of the obligatory indemnity clauses and subrogated claims the PSV insurers subject of these proceedings have taken up, and are bound under the subsisting insurance policies with the Petitioner's members to honour, while representing that they (the insurers) will honour all such commitments upon receipt from their Policyholders such of the levied insurance premiums, the said conduct amounts to unconscionable representation, which is outlawed under Section 13(2) of the Consumer Protection Act.
42. Such unconscionable conduct as explicated in Section 13(2)(a) to (h) therefore is which the insurers stated herein are guilty of, comprises a breach of Article 46(1) of the Constitution of Kenya.
43. Pursuant to Article 23 of the Constitution of Kenya, this Honourable Court as a Constitutional Court is entitled to intervene in protection of the Petitioner’s rights espoused in Article 46 of the Constitution of Kenya, which is the primary basis of the Petition herein.
44. In demonstration of the establishment of a prima facie case by the Petitioner herein, the Petitioner seeks from this Constitutional Court the declaration that as Policyholders of Insurance companies regulated by the Insurance Regulatory Authority such Petitioner’s consumer rights guaranteed under Article 46 of the Constitution of Kenya, 2010 as read together with the Consumer Protection Act, 2012, have been violated by the Respondents, and are in continued infringement by the exposure the Petitioner to personally meet the claims levied by third parties, which claims ought to be lawfully settled by the failing insurer.
45. The issuance of the conservatory orders sought herein clearly cannot be in breach of the law, is in the public interest in deference to the Principle of Rule of Law espoused in Article 10(2)(a) of the Constitution of Kenya, and by extension when the Petitioner with the stated insurance company withhold to meet and/or satisfy any Court decree against the Petitioner, they are in breach of their Constitutional obligation espoused in Article 46(1)(a) and (c) of the Constitution of Kenya.
46. The financial distress of the cited failed PSV insurers that have precipitated the present Claim failed to meet the obligation set out in Section 203 of the Insurance Act as read together with the Principal Regulation 48 of the Insurance Act mandating every Insurer to file with the Insurance Regulatory Authority monthly and annual returns in the prescribed format as provided thereunder.
47. Had this obligation been strictly enforced by the 2nd Respondent IRA as against the failed PSV insurers the financial inabilities of the said failed insurers to settle the third-party claims which they are bound to settle would have been timeously detected, thereby pre-empting the oppressive and Constitutionally-unacceptable infringements complained of herein.
48. The Petitioner contends that by so defaulting to meet the IRA set obligations (which standards have been communicated to the Petitioner and their members as well as the general public generally and posted at the IRA's website: https://ira.go.ke/resource/claims-guidelines-presentation/), the IRA failed in its statutory mandate to supervise and regulate the PSV general insurance business operated by the failed insurers herein, by reason of which it is guilty of actionable malfeasance.
49. Meanwhile, the Petitioner contend that the obligation stands binding on the respective Statutory Managers of the affected insurance companies to determine the relevant ratios of the payments to be paid as against the unsettled claims levied on the Petitioner, thereby warranting the issuance of the Conservatory Orders sought.
50. Absent the intervention sought, the threat to the Petitioner as a Policyholder with the stated insurer stands in looming jeopardy in a manner that violates Articles 26(1), 27(1) and (4), 28, 29, 46(1)(a) and (c) of the Constitution of Kenya as well as Article 258 of the Constitution of Kenya.
51. As at when the accidents now giving rise to the 3rd Parties' claims against the Petitioner by the Third Parties arose, the Petitioner had valid subsisting policies with the insurer, Directline Assurance Co. Ltd, cited herein.
52. Indeed, the Petitioner had faithfully met its obligations to pay the requisite premiums and other ancillary fees levied on them by the said Insurers, and as such the Petitioner stood, and do stands absolved from personal liability of whatever kind, for the Third-Party risks now levied on them, but properly accruing to the Insured.
53. The Petitioner’s fundamental rights as guaranteed under the Constitution of Kenya, 2010 stated in paragraph 51 above are now threatened as a consequence of the mala fides acts of the Commissioner of Insurance who has callously acted in a complicit fashion with the Insurance Regulatory Authority, leaving the Petitioner perilously exposed to harassment by third parties demanding that the Petitioner, a PSVs operators personally meet liabilities properly falling to be met by the said Insurer.
54. By reason of this express breach, the Petitioner is entitled to the declarations as sought in the Petition herein, and the Conservatory Orders in the interlocutory Motion as prayed.
55. The mandatory Third-Party insurance policies held by the Petitioner in furtherance of public policy dictate that the cited insurers and the 5th Respondent do honour and discharge their obligations thereunder; which they have failed to do, leaving the Petitioner at the mercy of third-Party claimants.
56. As stated above, all of the claims levied against the Petitioner as a Policy holder was a consequence of this PSV insurers defending the claims under undisputed subrogation rights, where the Policy holder is assured of the settlement of the respective claims in a lawful manner, and which operates as statutory estoppel in regard to the settlement of such claims.
57. As these Third Parties now seek to satisfy their Third Party Claims judgments/decrees against the Petitioner as a policyholder of Directline Assurance Ltd consequent upon the failed insurer defaulting in settling the said subrogated claims, these 3rd parties have turned to direct these variant execution processes directly against the Petitioner, thereby infringing on the Petitioner’s Constitutional rights to liberty and ownership of property without let or hindrance.
58. This is untenable, as the net effect is the unlawful and unconstitutional treatment of the Petitioner as criminals who had never taken out insurance policies with the said insurers, (which is certainly not the case). This Honourable Court can neither countenance nor blink at these naked infractions of the law by the 1st and 2nd Respondents.
59. The 1st Respondent as the Commissioner of Insurance and the 2nd Respondent Insurance Regulatory Authority both have acted in bad faith through and through, when they failed to diligently and properly supervise the PSV underwriting insurers in the said business and in the regulation of the financial affairs of the Respective PSV insurers cited herein, resulting in their sudden and inauspicious collapse.
60. The third aspect of the Petition herein entitling the Court to intervene is the expressed spirit and tenor of the Insurance Act, Cap 487 as read with the Insurance (Third Party Risks) Act, Cap 405, which is to afford legal protection envisaged under Article 27(1) of the Constitution of Kenya to both the policy holder (Petitioner) and the insuring public (The Third Parties).
61. Irrationally, unfairly and in a Constitutionally-prohibited discriminatory manner contravening Article 27(4) of the Constitution of Kenya, the Petitioner's members' Policyholders of PSV covers issued by the cited insurers do not cover liability in excess of Ksh.3,000,000/= (Kenya Shillings Three Million) by dint of Section 5(b) of Cap 405 yet by dint of the Insurance Regulatory Authority's prescribed "Private Motor Vehicle Insurance Schedule" (posted to all and sundry at https://ira.go.ke/resource/private-motor-schedule/) states that the maximum cap of "a series of claims arising out of one event is unlimited".
62. In the result, the maximum amount payable by the PSV insurers in respect of claims by each person is Kshs.3,000,000/= and the Petitioner insured caters for the amounts over and above the stated amount as though there was no insurance cover in the first place.
63. Although the said Section 5(b)(iv) of the Insurance (Motor Vehicles Third Party Risks) Act (Cap 405) Laws of Kenya was introduced vide Section 34 of the Finance Act, 2006 and which was operationalized on 1st January, 2007, it has the net effect of breaching Article 27(4) of the Constitution of Kenya as stated in paragraph 62 above and must be struck down.
64. Pursuant to Section 197(2) of the Insurance Act, such of the PSV insurers cited herein and licensed under the legislative regime of the Insurance Act for the carrying on of insurance business are bound in mandatory terms to keep updated records of the name of every policyholder, policy number, premium paid, subject matter of insurance, the date of the inception of the policy, date of renewal, sum insured, the amount and date of claim made, the date on which the claim was paid, the amount paid, and, in the event of a claim being repudiated, the date and reasons for repudiation, and, in the event of partial settlement, the reasons therefor.
65. Equality before the law is espoused in Article 27(1) of the Constitution of Kenya, and which Constitutional imperative has been openly violated by the Respondents as herein complained of, as stated herein above.
66. Effectively the said law is being utilized to burden the PSV industry (in which the Petitioner operates) to unfairly subsidizing the insurance industry without any checks and balances to weed out falsified claims, fraudulent insurance conduct, and professional misconduct by busybodies (ambulance chasers).
67. By causing the Petitioner as such insurance companies' policyholder to be now burdened personally with the obligations of meeting FULL Third-Party risk claims (which properly ought to be met by the stated PSV Insurers), the Respondents have caused the Petitioner to be treated in a manner that deprives them of the due protection of the law, in breach of Article 27(1) of the Constitution of Kenya. The legislative-mandated third party Risks insurance imposed on the Petitioner creates an obligation on the PSV Insurers duly licensed to operate by the Commissioner of Insurance as such and under the supervision of the Insurance Regulatory Authority to ensure the settlement of the said Claims in furtherance of the Principle of Rule of Law espoused in Article 10(2)(a) of the Constitution of Kenya.
68. Rather, and in naked unmitigated malfeasance, the Petitioner has been subjected to discriminatory practices by the Respondents, where demands of the law as stipulated in Articles 10(2) and 46(1) of the Constitution of Kenya have not been applied equally to policy holders insured by the stated insurance companies, necessitating the intervention of this Honourable Court.
69. Owing to the very great public importance of the Petition herein, and the issues it raises being of great public importance touching on public policy with regard to the compulsory Third Party Insurance claims, and given the scope and application of Article 258 of the Constitution of Kenya, it is imperative that Judicial Time and resources be saved by permitting the Petition herein to be treated as a representative suit and/or affording like individuals with similar claims to be enjoined in the proceedings to conclusively deal with this issue and avoid replication of like su
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