1. The Court is called upon to determine the Notice of Motion dated 11th May 2026 presented by the 6th Interested Party, Andrew Onkangi Omboga. The motion is expressed to be brought under Articles 50 and 159(2) of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act, Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act and Order 50 Rule 1 of the Civil Procedure Rules. Through it, the Applicant seeks, among other reliefs, the setting aside of the proceedings and orders made on 20thApril 2026, the reopening of his case to enable him tender evidence, leave to file and serve his list of witnesses, witness statements and documentary evidence out of time, and costs of the application.
2. The motion is anchored on the affidavit sworn by the Applicant on even date in which he depones that he sustained severe bodily injuries in a road traffic accident involving motor vehicle registration number KBV 938W, following which he instituted Nyamira CMCC No. E059 of 2024 against the Plaintiff and obtained judgment in his favour on 19th December 2024. He further avers that, before instituting the primary suit, he served the Defendant with the statutory notice contemplated under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. According to the Applicant, the present declaratory suit seeks to compel the Defendant to satisfy the decree issued in his favour in the primary suit in respect of the insured motor vehicle registration number KDH 119H, and he therefore has a direct and substantial interest in the outcome of these proceedings.
3. The Applicant attributes his failure to participate in the hearing conducted on 20th April 2026 to the omission of his advocates on record. He explains that counsel neither attended court nor filed his witness statements and documentary evidence despite his instructions. He maintains that he is in possession of documents, including the statutory notice and other material touching on the insurance relationship between the Plaintiff and the Defendant, which he considers essential for the fair and complete determination of the declaratory suit. He therefore implores the Court not to allow the inadvertence of counsel to extinguish his right to be heard on matters that directly affect the realization of the judgment entered in his favour.
4. The application is opposed by way of Grounds of Opposition dated 15th May 2026 in which the Defendant contends that the application is incompetent and legally unsustainable. It argues that proceedings commenced by way of plaint do not recognise the role assumed by the Applicant; that the Applicant is neither a necessary party nor a principal litigant; that he seeks, under the guise of an Interested Party, to assume the role of the Plaintiff after both principal parties had closed their respective cases; and that the application, having been presented when the matter was pending judgment, is prejudicial to the Defendant and amounts to an abuse of the process of the Court.
5. The Applicant, through M/s Oremo Jared & Company Advocates, filed written submissions in support of the Notice of Motion dated 11th May 2026. The Defendant, through M/s Boniface Masinde & Company Advocates, relied on the Grounds of Opposition, written submissions and List of Authorities, all dated 15th May 2026.
6. The Court has considered the Notice of Motion, the supporting affidavit, the Grounds of Opposition, the Applicant’s written submissions and the authorities cited by counsel and the following issues arise for determination:
1) Whether the Applicant, as the 6th Interested Party in proceedings commenced by way of plaint, is competent to seek the reliefs sought in the Notice of Motion.
2) If the first issue is answered in the affirmative, whether sufficient cause has been established to warrant the setting aside of the proceedings and orders made on 20th April 2026.
3) If the second issue is answered in the affirmative, whether the Applicant should be granted leave to file and serve his witness statements and documentary evidence out of time and thereafter adduce that evidence.
4) Who bears the costs of this application
7. The Applicant submitted that the decree obtained in Nyamira CMCC No. E059 of 2024 gives him a direct legal stake in the outcome of the present declaratory suit because the Plaintiff seeks to compel the Defendant insurer to satisfy that decree. Counsel argued that the Court should permit the Applicant to place before it documentary evidence material to the just determination of the dispute. It was further submitted that the Applicant's failure to tender the evidence during the hearing was solely attributable to the inadvertence and mistake of his previous advocate and should not be visited upon him.
8. In support of those submissions, counsel relied on Smith v New South Wales Bar Association [1992] HCA 36, where the High Court of Australia affirmed that a superior court possesses an inherent jurisdiction to reopen proceedings before its orders are perfected, while emphasising that the discretion must be exercised cautiously, having regard to the public interest in the finality of litigation and any prejudice to the opposing party.
9. Counsel further relied on Belinda Murai & 9 others v Amos Wainaina [1979] KECA 25 (KLR), where the Court of Appeal held that a bona fide mistake of counsel may constitute sufficient reason for granting procedural relief.
10. Reliance was also placed on Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR) where the Supreme Court explained that an Interested Party is one whose identifiable legal interest is likely to be affected by the outcome of the proceedings and is therefore entitled to participate in the proceedings.
11. The Defendant opposed the application, contending that the Applicant, having been joined merely as an Interested Party in proceedings commenced by way of plaint, is not entitled to seek orders reopening the hearing or to assume procedural steps reserved to the Plaintiff. Counsel submitted that although the Applicant may ultimately benefit from a successful determination of the Plaintiff's claim, the pleadings disclose a dispute exclusively between the Plaintiff and the Defendant, with the result that the burden of proving the matters pleaded remains with the Plaintiff.
12. In support of that position, counsel relied on Methodist Church in Kenya v Fugicha & 3 others [2019] KESC 59 (KLR), where the Supreme Court held that joinder of an Interested Party does not alter the identity of the principal litigants or enlarge the issues before the Court. Counsel also cited Kebande v Arasa [2025] KEELC 868 (KLR), where the Environment and Land Court held that an Interested Party cannot enlarge the scope of the proceedings, introduce an independent claim or assume the conduct of litigation reserved to the principal parties. Lastly, counsel relied on Abdulrahman Opondo Osama v Winfred Kendi & another [2021] KEHC 1966 (KLR), where the High Court reaffirmed that the legal burden of proof rests upon the party asserting a claim and cannot be shifted to another party.
13. The authorities relied upon by the parties address distinct questions. Those cited by the Applicant concern the Court's jurisdiction to reopen proceedings and the circumstances in which relief may be granted where the default is attributable to counsel. Those relied upon by the Defendant define the procedural status of an Interested Party and the limits of participation attendant to that status. The Court must therefore first determine whether the Applicant is procedurally entitled to seek the reliefs sought before considering whether the discretion to reopen the proceedings ought to be exercised.
14. The Court has carefully considered the Notice of Motion, the supporting affidavit, the Grounds of Opposition, the rival submissions and the authorities cited by counsel.
15. The Applicant's case rests on two principal propositions. The first is that, as the holder of a decree arising from Nyamira CMCC E059 of 2024, he has a direct and identifiable interest in the outcome of these proceedings. The second is that his failure to participate in the hearing was occasioned solely by the inadvertence and mistake of his previous advocate, and that the Court should therefore exercise its discretion to reopen the proceedings and admit the proposed evidence.
16. The Defendant's objection, however, raises a threshold issue. It contends that irrespective of the explanation offered for the Applicant's failure to tender evidence, an Interested Party in proceedings commenced by way of plaint lacks the procedural standing to seek orders reopening the hearing or to adduce evidence in support of the Plaintiff's case. That issue must necessarily be determined first because, if resolved against the Applicant, it disposes of the application.
17. It is not in dispute that the present suit was commenced by the Plaintiff through the Plaint dated 22nd April 2025 seeking declaratory relief against the Defendant under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act.
18. The Applicant was subsequently joined as the 6th Interested Party because the outcome of the suit may affect his ability to realise the fruits of the judgment obtained in Nyamira CMCC E059 of 2024. His joinder therefore served the legitimate purpose of protecting his identifiable legal interest in the proceedings.
19. That interest, however, does not alter the character of the litigation or elevate the Applicant to the position of a principal litigant. The pleadings define the issues in controversy and place upon the Plaintiff the burden of proving the existence of a valid contract of insurance and the Defendant's liability under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. To permit the Applicant to reopen the proceedings, file witness statements and documentary evidence out of time and thereafter adduce evidence intended to establish those matters would, in effect, allow him to prosecute the Plaintiff's case, a role which the law does not assign to an Interested Party.
20. I am therefore persuaded by the Defendant's submission that the Applicant lacks the requisite procedural standing to seek the reliefs contained in the Notice of Motion. While the Applicant undoubtedly has a legitimate interest in the outcome of these proceedings, that interest is limited to safeguarding the rights for which he was joined and does not entitle him to assume the conduct of litigation reserved to the principal parties.
21. I have nevertheless considered the Applicant's contention that his failure to participate in the hearing resulted from the inadvertence and mistake of his previous advocate.
22. It is settled that a litigant should not, in appropriate circumstances, be denied justice solely because of counsel's mistake. However, that principle cannot confer jurisdiction or procedural standing where none exists. The obstacle facing the Applicant is not the explanation for the default but the absence of legal capacity, as an Interested Party, to seek orders reopening the proceedings for the purpose of proving the Plaintiff's case.
23. Having found that the Applicant lacks the procedural standing to invoke the Court's discretion, it is unnecessary to consider whether sufficient cause has been established to set aside the proceedings and orders made on 20th April 2026 or whether the proposed witness statements and documentary evidence satisfy the principles governing the reopening of proceedings and the admission of additional evidence.
24. Accordingly, the Notice of Motion dated 11th May 2026 is devoid of merit and is hereby dismissed with costs to the Defendant.
2. The motion is anchored on the affidavit sworn by the Applicant on even date in which he depones that he sustained severe bodily injuries in a road traffic accident involving motor vehicle registration number KBV 938W, following which he instituted Nyamira CMCC No. E059 of 2024 against the Plaintiff and obtained judgment in his favour on 19th December 2024. He further avers that, before instituting the primary suit, he served the Defendant with the statutory notice contemplated under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. According to the Applicant, the present declaratory suit seeks to compel the Defendant to satisfy the decree issued in his favour in the primary suit in respect of the insured motor vehicle registration number KDH 119H, and he therefore has a direct and substantial interest in the outcome of these proceedings.
3. The Applicant attributes his failure to participate in the hearing conducted on 20th April 2026 to the omission of his advocates on record. He explains that counsel neither attended court nor filed his witness statements and documentary evidence despite his instructions. He maintains that he is in possession of documents, including the statutory notice and other material touching on the insurance relationship between the Plaintiff and the Defendant, which he considers essential for the fair and complete determination of the declaratory suit. He therefore implores the Court not to allow the inadvertence of counsel to extinguish his right to be heard on matters that directly affect the realization of the judgment entered in his favour.
4. The application is opposed by way of Grounds of Opposition dated 15th May 2026 in which the Defendant contends that the application is incompetent and legally unsustainable. It argues that proceedings commenced by way of plaint do not recognise the role assumed by the Applicant; that the Applicant is neither a necessary party nor a principal litigant; that he seeks, under the guise of an Interested Party, to assume the role of the Plaintiff after both principal parties had closed their respective cases; and that the application, having been presented when the matter was pending judgment, is prejudicial to the Defendant and amounts to an abuse of the process of the Court.
5. The Applicant, through M/s Oremo Jared & Company Advocates, filed written submissions in support of the Notice of Motion dated 11th May 2026. The Defendant, through M/s Boniface Masinde & Company Advocates, relied on the Grounds of Opposition, written submissions and List of Authorities, all dated 15th May 2026.
6. The Court has considered the Notice of Motion, the supporting affidavit, the Grounds of Opposition, the Applicant’s written submissions and the authorities cited by counsel and the following issues arise for determination:
1) Whether the Applicant, as the 6th Interested Party in proceedings commenced by way of plaint, is competent to seek the reliefs sought in the Notice of Motion.
2) If the first issue is answered in the affirmative, whether sufficient cause has been established to warrant the setting aside of the proceedings and orders made on 20th April 2026.
3) If the second issue is answered in the affirmative, whether the Applicant should be granted leave to file and serve his witness statements and documentary evidence out of time and thereafter adduce that evidence.
4) Who bears the costs of this application
7. The Applicant submitted that the decree obtained in Nyamira CMCC No. E059 of 2024 gives him a direct legal stake in the outcome of the present declaratory suit because the Plaintiff seeks to compel the Defendant insurer to satisfy that decree. Counsel argued that the Court should permit the Applicant to place before it documentary evidence material to the just determination of the dispute. It was further submitted that the Applicant's failure to tender the evidence during the hearing was solely attributable to the inadvertence and mistake of his previous advocate and should not be visited upon him.
8. In support of those submissions, counsel relied on Smith v New South Wales Bar Association [1992] HCA 36, where the High Court of Australia affirmed that a superior court possesses an inherent jurisdiction to reopen proceedings before its orders are perfected, while emphasising that the discretion must be exercised cautiously, having regard to the public interest in the finality of litigation and any prejudice to the opposing party.
9. Counsel further relied on Belinda Murai & 9 others v Amos Wainaina [1979] KECA 25 (KLR), where the Court of Appeal held that a bona fide mistake of counsel may constitute sufficient reason for granting procedural relief.
10. Reliance was also placed on Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR) where the Supreme Court explained that an Interested Party is one whose identifiable legal interest is likely to be affected by the outcome of the proceedings and is therefore entitled to participate in the proceedings.
11. The Defendant opposed the application, contending that the Applicant, having been joined merely as an Interested Party in proceedings commenced by way of plaint, is not entitled to seek orders reopening the hearing or to assume procedural steps reserved to the Plaintiff. Counsel submitted that although the Applicant may ultimately benefit from a successful determination of the Plaintiff's claim, the pleadings disclose a dispute exclusively between the Plaintiff and the Defendant, with the result that the burden of proving the matters pleaded remains with the Plaintiff.
12. In support of that position, counsel relied on Methodist Church in Kenya v Fugicha & 3 others [2019] KESC 59 (KLR), where the Supreme Court held that joinder of an Interested Party does not alter the identity of the principal litigants or enlarge the issues before the Court. Counsel also cited Kebande v Arasa [2025] KEELC 868 (KLR), where the Environment and Land Court held that an Interested Party cannot enlarge the scope of the proceedings, introduce an independent claim or assume the conduct of litigation reserved to the principal parties. Lastly, counsel relied on Abdulrahman Opondo Osama v Winfred Kendi & another [2021] KEHC 1966 (KLR), where the High Court reaffirmed that the legal burden of proof rests upon the party asserting a claim and cannot be shifted to another party.
13. The authorities relied upon by the parties address distinct questions. Those cited by the Applicant concern the Court's jurisdiction to reopen proceedings and the circumstances in which relief may be granted where the default is attributable to counsel. Those relied upon by the Defendant define the procedural status of an Interested Party and the limits of participation attendant to that status. The Court must therefore first determine whether the Applicant is procedurally entitled to seek the reliefs sought before considering whether the discretion to reopen the proceedings ought to be exercised.
14. The Court has carefully considered the Notice of Motion, the supporting affidavit, the Grounds of Opposition, the rival submissions and the authorities cited by counsel.
15. The Applicant's case rests on two principal propositions. The first is that, as the holder of a decree arising from Nyamira CMCC E059 of 2024, he has a direct and identifiable interest in the outcome of these proceedings. The second is that his failure to participate in the hearing was occasioned solely by the inadvertence and mistake of his previous advocate, and that the Court should therefore exercise its discretion to reopen the proceedings and admit the proposed evidence.
16. The Defendant's objection, however, raises a threshold issue. It contends that irrespective of the explanation offered for the Applicant's failure to tender evidence, an Interested Party in proceedings commenced by way of plaint lacks the procedural standing to seek orders reopening the hearing or to adduce evidence in support of the Plaintiff's case. That issue must necessarily be determined first because, if resolved against the Applicant, it disposes of the application.
17. It is not in dispute that the present suit was commenced by the Plaintiff through the Plaint dated 22nd April 2025 seeking declaratory relief against the Defendant under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act.
18. The Applicant was subsequently joined as the 6th Interested Party because the outcome of the suit may affect his ability to realise the fruits of the judgment obtained in Nyamira CMCC E059 of 2024. His joinder therefore served the legitimate purpose of protecting his identifiable legal interest in the proceedings.
19. That interest, however, does not alter the character of the litigation or elevate the Applicant to the position of a principal litigant. The pleadings define the issues in controversy and place upon the Plaintiff the burden of proving the existence of a valid contract of insurance and the Defendant's liability under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. To permit the Applicant to reopen the proceedings, file witness statements and documentary evidence out of time and thereafter adduce evidence intended to establish those matters would, in effect, allow him to prosecute the Plaintiff's case, a role which the law does not assign to an Interested Party.
20. I am therefore persuaded by the Defendant's submission that the Applicant lacks the requisite procedural standing to seek the reliefs contained in the Notice of Motion. While the Applicant undoubtedly has a legitimate interest in the outcome of these proceedings, that interest is limited to safeguarding the rights for which he was joined and does not entitle him to assume the conduct of litigation reserved to the principal parties.
21. I have nevertheless considered the Applicant's contention that his failure to participate in the hearing resulted from the inadvertence and mistake of his previous advocate.
22. It is settled that a litigant should not, in appropriate circumstances, be denied justice solely because of counsel's mistake. However, that principle cannot confer jurisdiction or procedural standing where none exists. The obstacle facing the Applicant is not the explanation for the default but the absence of legal capacity, as an Interested Party, to seek orders reopening the proceedings for the purpose of proving the Plaintiff's case.
23. Having found that the Applicant lacks the procedural standing to invoke the Court's discretion, it is unnecessary to consider whether sufficient cause has been established to set aside the proceedings and orders made on 20th April 2026 or whether the proposed witness statements and documentary evidence satisfy the principles governing the reopening of proceedings and the admission of additional evidence.
24. Accordingly, the Notice of Motion dated 11th May 2026 is devoid of merit and is hereby dismissed with costs to the Defendant.