Background
1. The Appellant instituted proceedings before the Resident/ Adjudicator at Nairobi Milimani in Jolene Njeri (Minor suing through next friend and mother Hannah Njambi Mathu)-vs-Trident Insurance Company, as lawful passenger in a motor vehicle registration number KBY 955V, travelling along Kangundo Road, Nairobi when the said motor vehicle was involved in a road traffic accident thereby sustaining serious bodily injuries and sort for treatment.
2. As a result of the said accident, the Claimant filed a suit in Milimani SCCC No.5281 of 2023(Original Suit) for compensation for injuries, suffering and loss against the owner and driver of the said motor vehicle one Derrick Anjeyo, who was the Respondent in the Original Suit. The Appellant also issued Statutory Notice against Trident Insurance being the Respondents insurer as provided under section 10(2)(a) of CAP 405 Laws of Kenya, and who are the Respondents in this Civil Appeal.
3. In her claim, in the original suit, the Appellant pleaded for special damages as follows
PARTICULAR OF SPECIAL DAMAGES
Medical Report 5500.00
Motor Vehicle search certificate 550.00
Medical expenses 179,145.00
Removal of implants 200,000 .00
Total 385,195.00/=
4. The Respondent (Derrick Anjeyo) in the Original Suit was duly served and parties entered into a consent on liability at 85:15 in favour of the Appellant herein, which was adopted on the 29th February 2024. Judgment was entered on 15th March 2024 in favour of the Appellant herein, she proceeded and extracted a decree.
5. The Appellant moved to sue Trident Insurance Company Limited, the Respondents in this appeal for enforcement of the decretal amount vide Milimani SCC E3441 of 2024 Jolene Njeri (Minor suing through next friend and mother Hannah Njambi Mathu-vs-Trident Insurance Company Limited.
6. Subsequently, vide a ruling dated 16th August 2024, delivered by Hon. Magistrate V.K Momanyi Resident Magistrate /Adjudicator who struck off the claim by virtue of the doctrine of stare decisis in relation to the High court decision in Kenya Orient Insurance Limited vs. George Otieno (Civil appeal E166 OF 2023) 2024 KEHC 7637 KLR (25 JUNE 2024) which prohibited the small claims from exercising any jurisdiction on declaratory suits.
The Appeal
7. Being aggrieved by the said ruling, the claimant preferred the present appeal and set forth the following (8) eight grounds in support thereof:
a) THAT the learned magistrate erred striking out the Appellant’s suit.
b) THAT cause of action pleaded by the appellant in the lower court was not a “declaratory suit” and the decision made in Kisumu HCCA/E166/2024 Kenya Orient Insurance Limited versus George Otieno was not applicable therein.
c) THAT a Third Party Beneficiary founded on contract is a distinct cause of action founded on contract and is distinguishable from a ‘declaratory suit’.
d) THAT the learned magistrate erred in falling to distinguish between a cause of action based on a contract and a ‘declaratory suit’ solely based on CAP 405
e) THAT the learned magistrate failed to consider that the lower court is clothed with jurisdiction to hear matters founded on contract as provided under section 12 of the small Claims Court Act.
f) THAT the decision of the learned magistrate amounted to ispso facto and surreptitiously declaring and rendering the mandatory provisions of section 12(a) (b) and (d) of the small claims court Act impotent, redundant, null and void.
g) THAT the learned magistrate erred in finding that the suit was a ‘clever attempt to avoid the implication of the concerned High court decision’ when causes of action are determined by law.
h) THAT the learned magistrate failed to find that the Appellant as a third party Beneficiary to a contract was properly suited to file a suit for enforce of his benefits.
8. Consequently, the Appellant seeks the following orders from this court.
1. That the court be pleased to set aside the dismissal of the Appellant’s case in the subordinate court and enter judgement as pleaded in the statement of claim.
2. That this appeal be allowed with costs.
9. I note that the Respondent Insurer herein was duly served but did not enter appearance hence the appeal is unopposed.
The Submissions
10. The appeal was canvassed by way of written submission dated 17th February 2026 which this court has duly considered.
11. Counsel for the appellant submitted that the court should find that the Appellant is a Third-Party Beneficiary to the contract and is in law and contract entitled to bring forth this suit. As the trial court erred in interpretation of section 12 of the Insurance (Motor Vehicle Third Party Risks) Act. He also relied on the following authorities Ngojine versus Pioneer General Insurance (Civil Appeal E073 of 2022) (Delivered by Justice Bahati Mwamuye on 27.06.2024) and Nairobi HCCA/E613/2024 Jubilee Alliance Insurance versus Benson M Butiya (Delivered by Justice J. N Njagi on 24.05.2025). Where the court held that the pursuant to section 12 (1) (a) of the small claims court 2016, the small claims court does have jurisdiction to hear and determine disputes between insured persons and insurance companies regarding contractual obligation. He contended that the cause of action herein relates to a contract for sale and supply of goods and services within the meaning of section 12(1) (a) of the small claims court act. Counsel urged the court to allow the appeal.
Analysis and determination
12. As this is a first appeal, I am aware of the courts duty as outlined by the court of Appeal in the case of Kenya Ports Authority Versus Kisthan (Kenya) Limited (2000) 2EA 212, where the court of Appeal held inter alia that-
“On first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind it has neither seen or heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”
13. I have considered, the grounds of appeal, the trial record and the submissions against the law, and the only issue for determination is whether the small Claims Court has jurisdiction to determine such declaratory suits.
14. In her Ruling, the learned trial magistrate held that the Appellant’s case was a declaratory suit in a clever attempt by the Appellant to enforce a judgement that was entered by the small claims court against the Respondent insured who is not a party to the case before her.
15. A reference to what constitutes a declaratory suit as outlined in the case of Kenya Orient Insurance Limited vs. George Otieno (civil appeal E166 OF 2023) 2024 KEHC 7637 KLR (25 JUNE 2024) delivered by Hon. Aburili J explained as follows; -
“What then is a declaratory suit? Relevant to this case, a declaratory suit is one that seeks to compel a judgment debtor insurer to settle the decree passed against the insured.”
16. In the original suit, it was not disputed that the Appellant was involved in a road traffic accident with one Derrick Anjeyo who was insured by the Respondent herein under the policy number C27832409 (TPO) and that judgement was entered by consent on liability ay 85:15 as against him, and a decree was issued for the sum of Kshs 932,409.41. It is therefore not in dispute that the parties in the original suit in Milimani Nairobi SCCC/E5281/2023 were the Appellant and the Respondents insured the said Derrick Anjeyo and NOT the Respondent herein.
17. After obtaining a judgement and securing a decree against the Respondent insured, the Appellant instead of pursuing execution against the Respondent insured, opted to file a suit against the Respondent herein.
18. Relying on the para 21 of the above-mentioned judgement ,
“21. Upon entry of judgement in such accident claims where the defendant was insured, the above provisions require that the insurer to settle the decretal amount as awarded and in accordance with the provisions of the Act. It is however not always the case that the insurers willingly settle the claim and this necessitates the filing of a declaratory suit to compel the insurer to settle the decree. Ordinarily, such declaratory suits may be filed by the defendant and or judgement debtor in the primary suit.”
19. In the instant appeal, the cause of action which was as a result of the ruling, was filed by the Appellant against the Respondent Insured by virtue of the fact that the Appellant had secured a judgment against their insured one Derrick Anjeyo. She therefore sought to enforce the said decree against the Respondent insurer. It is clear as stated by the learned magistrate in her ruling that the although the Appellant does not explicitly seek any declaratory orders, it is evident that the claim is fundamentally based on the provisions of section 10 of Cap 405 which the Appellant has avoided and only mentioned Section 12 of the small claims court Act on jurisdiction.
20. I am also in agreement with the observation of Justice Rea Ougo in the case of Wakungu vs. First Assurance Company Limited (supra) at Paragraph 20 that “It follows, then that after obtaining a judgement and securing a decree against the Respondent’s insured, the next step for the Appellant would have been to pursue execution against the Respondent’s Insured rather than filing a declaratory suit against the Respondent. Such a suit could only be initiated by the insured against the Respondent, since they were the parties bound by or privy to the insurance contract under section 10 and 5(b) of the Act.
Disposition
21. In the foregoing, I find that the Appellant could have instead sought to enforce the judgment against the Respondent insured (Derrick Anjeyo) as per the Original Suit instead of pursuing the Respondent herein.
22. I therefore uphold the findings of the learned magistrate and dismiss the appeal as it lacks merit. Being that the appeal was unopposed, I make no orders as to costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 19th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No Appearance for the Appellant.
No Appearance for the Respondent.
Michael Court Assistant.
1. The Appellant instituted proceedings before the Resident/ Adjudicator at Nairobi Milimani in Jolene Njeri (Minor suing through next friend and mother Hannah Njambi Mathu)-vs-Trident Insurance Company, as lawful passenger in a motor vehicle registration number KBY 955V, travelling along Kangundo Road, Nairobi when the said motor vehicle was involved in a road traffic accident thereby sustaining serious bodily injuries and sort for treatment.
2. As a result of the said accident, the Claimant filed a suit in Milimani SCCC No.5281 of 2023(Original Suit) for compensation for injuries, suffering and loss against the owner and driver of the said motor vehicle one Derrick Anjeyo, who was the Respondent in the Original Suit. The Appellant also issued Statutory Notice against Trident Insurance being the Respondents insurer as provided under section 10(2)(a) of CAP 405 Laws of Kenya, and who are the Respondents in this Civil Appeal.
3. In her claim, in the original suit, the Appellant pleaded for special damages as follows
PARTICULAR OF SPECIAL DAMAGES
Medical Report 5500.00
Motor Vehicle search certificate 550.00
Medical expenses 179,145.00
Removal of implants 200,000 .00
Total 385,195.00/=
4. The Respondent (Derrick Anjeyo) in the Original Suit was duly served and parties entered into a consent on liability at 85:15 in favour of the Appellant herein, which was adopted on the 29th February 2024. Judgment was entered on 15th March 2024 in favour of the Appellant herein, she proceeded and extracted a decree.
5. The Appellant moved to sue Trident Insurance Company Limited, the Respondents in this appeal for enforcement of the decretal amount vide Milimani SCC E3441 of 2024 Jolene Njeri (Minor suing through next friend and mother Hannah Njambi Mathu-vs-Trident Insurance Company Limited.
6. Subsequently, vide a ruling dated 16th August 2024, delivered by Hon. Magistrate V.K Momanyi Resident Magistrate /Adjudicator who struck off the claim by virtue of the doctrine of stare decisis in relation to the High court decision in Kenya Orient Insurance Limited vs. George Otieno (Civil appeal E166 OF 2023) 2024 KEHC 7637 KLR (25 JUNE 2024) which prohibited the small claims from exercising any jurisdiction on declaratory suits.
The Appeal
7. Being aggrieved by the said ruling, the claimant preferred the present appeal and set forth the following (8) eight grounds in support thereof:
a) THAT the learned magistrate erred striking out the Appellant’s suit.
b) THAT cause of action pleaded by the appellant in the lower court was not a “declaratory suit” and the decision made in Kisumu HCCA/E166/2024 Kenya Orient Insurance Limited versus George Otieno was not applicable therein.
c) THAT a Third Party Beneficiary founded on contract is a distinct cause of action founded on contract and is distinguishable from a ‘declaratory suit’.
d) THAT the learned magistrate erred in falling to distinguish between a cause of action based on a contract and a ‘declaratory suit’ solely based on CAP 405
e) THAT the learned magistrate failed to consider that the lower court is clothed with jurisdiction to hear matters founded on contract as provided under section 12 of the small Claims Court Act.
f) THAT the decision of the learned magistrate amounted to ispso facto and surreptitiously declaring and rendering the mandatory provisions of section 12(a) (b) and (d) of the small claims court Act impotent, redundant, null and void.
g) THAT the learned magistrate erred in finding that the suit was a ‘clever attempt to avoid the implication of the concerned High court decision’ when causes of action are determined by law.
h) THAT the learned magistrate failed to find that the Appellant as a third party Beneficiary to a contract was properly suited to file a suit for enforce of his benefits.
8. Consequently, the Appellant seeks the following orders from this court.
1. That the court be pleased to set aside the dismissal of the Appellant’s case in the subordinate court and enter judgement as pleaded in the statement of claim.
2. That this appeal be allowed with costs.
9. I note that the Respondent Insurer herein was duly served but did not enter appearance hence the appeal is unopposed.
The Submissions
10. The appeal was canvassed by way of written submission dated 17th February 2026 which this court has duly considered.
11. Counsel for the appellant submitted that the court should find that the Appellant is a Third-Party Beneficiary to the contract and is in law and contract entitled to bring forth this suit. As the trial court erred in interpretation of section 12 of the Insurance (Motor Vehicle Third Party Risks) Act. He also relied on the following authorities Ngojine versus Pioneer General Insurance (Civil Appeal E073 of 2022) (Delivered by Justice Bahati Mwamuye on 27.06.2024) and Nairobi HCCA/E613/2024 Jubilee Alliance Insurance versus Benson M Butiya (Delivered by Justice J. N Njagi on 24.05.2025). Where the court held that the pursuant to section 12 (1) (a) of the small claims court 2016, the small claims court does have jurisdiction to hear and determine disputes between insured persons and insurance companies regarding contractual obligation. He contended that the cause of action herein relates to a contract for sale and supply of goods and services within the meaning of section 12(1) (a) of the small claims court act. Counsel urged the court to allow the appeal.
Analysis and determination
12. As this is a first appeal, I am aware of the courts duty as outlined by the court of Appeal in the case of Kenya Ports Authority Versus Kisthan (Kenya) Limited (2000) 2EA 212, where the court of Appeal held inter alia that-
“On first appeal from the High Court, the Court of Appeal should consider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind it has neither seen or heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”
13. I have considered, the grounds of appeal, the trial record and the submissions against the law, and the only issue for determination is whether the small Claims Court has jurisdiction to determine such declaratory suits.
14. In her Ruling, the learned trial magistrate held that the Appellant’s case was a declaratory suit in a clever attempt by the Appellant to enforce a judgement that was entered by the small claims court against the Respondent insured who is not a party to the case before her.
15. A reference to what constitutes a declaratory suit as outlined in the case of Kenya Orient Insurance Limited vs. George Otieno (civil appeal E166 OF 2023) 2024 KEHC 7637 KLR (25 JUNE 2024) delivered by Hon. Aburili J explained as follows; -
“What then is a declaratory suit? Relevant to this case, a declaratory suit is one that seeks to compel a judgment debtor insurer to settle the decree passed against the insured.”
16. In the original suit, it was not disputed that the Appellant was involved in a road traffic accident with one Derrick Anjeyo who was insured by the Respondent herein under the policy number C27832409 (TPO) and that judgement was entered by consent on liability ay 85:15 as against him, and a decree was issued for the sum of Kshs 932,409.41. It is therefore not in dispute that the parties in the original suit in Milimani Nairobi SCCC/E5281/2023 were the Appellant and the Respondents insured the said Derrick Anjeyo and NOT the Respondent herein.
17. After obtaining a judgement and securing a decree against the Respondent insured, the Appellant instead of pursuing execution against the Respondent insured, opted to file a suit against the Respondent herein.
18. Relying on the para 21 of the above-mentioned judgement ,
“21. Upon entry of judgement in such accident claims where the defendant was insured, the above provisions require that the insurer to settle the decretal amount as awarded and in accordance with the provisions of the Act. It is however not always the case that the insurers willingly settle the claim and this necessitates the filing of a declaratory suit to compel the insurer to settle the decree. Ordinarily, such declaratory suits may be filed by the defendant and or judgement debtor in the primary suit.”
19. In the instant appeal, the cause of action which was as a result of the ruling, was filed by the Appellant against the Respondent Insured by virtue of the fact that the Appellant had secured a judgment against their insured one Derrick Anjeyo. She therefore sought to enforce the said decree against the Respondent insurer. It is clear as stated by the learned magistrate in her ruling that the although the Appellant does not explicitly seek any declaratory orders, it is evident that the claim is fundamentally based on the provisions of section 10 of Cap 405 which the Appellant has avoided and only mentioned Section 12 of the small claims court Act on jurisdiction.
20. I am also in agreement with the observation of Justice Rea Ougo in the case of Wakungu vs. First Assurance Company Limited (supra) at Paragraph 20 that “It follows, then that after obtaining a judgement and securing a decree against the Respondent’s insured, the next step for the Appellant would have been to pursue execution against the Respondent’s Insured rather than filing a declaratory suit against the Respondent. Such a suit could only be initiated by the insured against the Respondent, since they were the parties bound by or privy to the insurance contract under section 10 and 5(b) of the Act.
Disposition
21. In the foregoing, I find that the Appellant could have instead sought to enforce the judgment against the Respondent insured (Derrick Anjeyo) as per the Original Suit instead of pursuing the Respondent herein.
22. I therefore uphold the findings of the learned magistrate and dismiss the appeal as it lacks merit. Being that the appeal was unopposed, I make no orders as to costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 19th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No Appearance for the Appellant.
No Appearance for the Respondent.
Michael Court Assistant.