Kariuki v Principal Magistrate's Court Mavoko & 3 others; Mulwa (Interested Party) (Petition E022 of 2024) [2025] KEHC 18170 (KLR) (4 December 2025) (Judgment)
Neutral citation:
[2025] KEHC 18170 (KLR)
Republic of Kenya
Petition E022 of 2024
EN Maina, J
December 4, 2025
IN THE MATTER OF THE COSTITUTION KENYA 2010, ARTICLES 10, 19 (2)20 (1) (2)(3) & (4), 21(1), 23 (3), 27 (1), 40 (3), 46, 47 (1), 48, 50 (1) 258 (1) AND 259 (1)
AND
IN THE MATTER OF ENFORCEMENT OF FUNDAMENTAL REGISTRY RIGHTS AND FREEDOMS UNDER SECTION 22 (1) OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL UNDER ARTICLES 19, 20, 21, 22, 23, 25(c), 40(1), 40(3), 50(1), 48, 159, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010 TO WITH SECTION AND 3A OF CIVIL PROCEDURE ACT, SECTION 20(8) AND (3) AND (4), SECTION 23 (1) AND (3), SECTION 27 (1), 29(a)ANDIN THE MATTER OF: THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS AND ENFORCEMENT OF THE CONSTITUTION) PRACTICE AND PROCEDURE RULES 2013
AND
IN THE MATTER OF SECTION 203 OF THE INSURANCE ACT CAP 487 LAWS OF KENYA & THE POLICYHOLDERS COMPENSATION FUNDANDIN THE MATTER OF SECTION 4, 10 OF THE INSURANCE (MOTOR VEHICLE THIRD PARTY RISKS) ACT CAP 405 LAWS OF KENYA
AND
IN THE MATTER OF: THE INSOLVENCY ACT NO. 18 OF 2015
Between
John Mbugua Kariuki
Petitioner
and
Principal Magistrate's Court Mavoko
1st Respondent
Attorney General
2nd Respondent
The Insurance Regulatory Authority
3rd Respondent
Policy Holders Compensation Fund
4th Respondent
and
Beatrice Nduku Mulwa
Interested Party
Judgment
1.The amended Petition before this court is dated 28/03/2025, the Applicants seeks the following orders that;
2.The Application is supported by the affidavit of the Petitioner sworn on an even date wherein he contends that he is the registered owner of Motor vehicle registration number KAA 688Y that was insured by Concord Insurance Company (hereinafter referred to as the “insurance company”) and got into an accident on 16/01/2006. That he reported the accident to the insurance company who in turn appointed the firm of Mwaniki Gachuka & Co Advocates to represent them against the 27 claims that arose until the Insurance Company was put under statutory management. He then received a notice to withdraw without any notice and the matters proceeded without his attendance until he appointed the firm of M/S S.W Ndegwa & Co Advocates. He indicated that his petition raises weighty constitutional issues and that the execution has commenced in some of the matters causing his family to be subjected to psychological trauma due to numerous attachments.
3.The Petitioner avers that the duty of an insurer to meet judgment awards is also recognized under Section 203 of the Insurance Act where the insurer is required to meet claims within 90 days of them being lodged subject to extensions that may be issued by the Commissioner of Insurance; Further, Article 46 of the Constitution safeguards consumer rights and consumers are entitled to services of reasonable quality, protection of their economic interest and compensation for loss or injury arising from the defects in service. That he is suffering double jeopardy as he paid premiums and now proclamation of attachment of his property. The 2nd and 3rd Respondent failed to advise unsuspecting consumers from taking insurance policies with Concord Insurance Company Limited while the later is obligated to ensure that all companies that offer insurance services in Kenya are properly run and are capable of indemnifying all their policyholders in the event an unforeseen event occurs,
4.Further, that the 2nd, 3rd and 4th Respondents have also violated the national values and principles under Article 10 of the Constitution for failing to be accountable for all the players in the insurance sector. The 2nd 3rd and 4th Respondent bear the burden of satisfying the interested parties decree for failing to fulfill its obligations as the insurance sector regulators.
5.The Petition was opposed by a reply to Petition files by the 2nd and 3rd Respondent through an affidavit dated 23/05/2023 by Godfrey K Kiptum, the Commissioner of Insurance and Chief Executive officer of the 3rd Respondent. He contended that pursuant to section 23, 41 and 203 of the Insurance Act, they had numerous engagements with the Insurance Company with an aim to rectify its non-compliance but it was unable to meaning that claims payable were not settled thus exposing policy holders and the public to immense risk. In exercise of its powers under section 67 (2) (iii) of the Insurance Act, it appointed 3 people to the Board of Directors of the Insurance company and when they conducted an onsite inspection on 1/02/2013, they found that the head office was closed and not accessible to the public and this was confirmed by a letter from the insurance company dated 5/02/2013 who admitted that it was closed following attachment by auctioneers.
6.The Board of directors then decided to place the Insurance company under Statutory management and the 3rd Respondent appointed Mr. Charles Osoro Makone as the Statutory Manager to act in the best interest of the public vide a Press statement dated 06/02/2013. That vide a letter dated 07/02/2013 the public was informed of this position and vide Petition 6 of 2016, in the matter of Concord Company Limited, an official receiver was appointed as the provisional liquidator in the judgment dated 27/01/2020 by Justice Majanja. The court was urged to dismiss the Petition as it was vexatious and incompetent on the grounds that the 3rd Respondent exercised its statutory mandate as required, it was not a party to the contract between the Petitioner and the insurance company and cannot be made to meet obligations that arise from a private agreement as this would be in violation of Article 201 (d) of the Constitution of Kenya, 2010 and that it offends the provisions of the Insolvency Act as the Petitioner has not sought leave as per section 432 (2) of the Insolvency Act. Lastly it was deposed that the Petition dies not meet the standard set out in the case of Anarita Karimi Njeru vs Republic (1979) KLR 154.
7.The Petition was dispensed with by way of written submissions. As at the time of writing this judgment, the 1st and 4th Respondents had not filed submissions nor responded to the Petition.
8.The Petitioner in submissions dated 13/05/2025 submitted on two issues. He contended that the Petition had met the threshold for a constitutional petition under the Anarita Karimi Njeru rule and Mutunga Rules. It was submitted that Article 46 of the Constitution had been infringed as he is a consumer of insurance services that he has paid for and the insurance regulatory authority exists to regulate insurance services which he never enjoyed. He contended that he had set out with a reasonable degree of precision the complaint, the provision infringed and the manner in which the infringement was done.
9.That where there is a conflict between procedural dictates and constitutional principles especially with regards to the Bill of rights then Constitutional provisions prevail. That as a result of the state organ to carry out its statutory mandate, his rights were threatened with violation or have been infringed. In support of this position, he relied on the following cases; lan E Donovan vs. Kenya Power & Lighting Company [2021] e KLR, Mark Ndumia Ndung;u vs Nairobi Bottlers Limited and Another [2018] eKLR, Deepak Chamanlal Kamani & Another vs. Kenya Anti-Corruption Commission & 2 Others Civil Appeal (Application) No. 152 of 2009, Nation Media Group Limited vs. Attorney General [2007] 1 EA 261 and CNM vs WMG (2018) e KLR, Commission on Administrative Justice vs. Insurance Regulatory Authority & Another [2017] e KLR.
10.Secondly, it was submitted that the Petitioner is entitled to the orders sought. That his property had been impounded several times and his house broken into without a court order and his efforts to contact the regulator and policy holder compensation fund have not been successful. It was submitted that his properties are at risk of being auctioned, that he is suffering double jeopardy due to payment of premiums and proclamation of attachment of his property at home and business premises and NTSC for committal to civil jail. He faulted the 4th Respondent and the statutory manager for extending the moratorium of 12 months on the insurance company over the years and for failing to monitor and take note of insurance companies facing liquidity at early stated to protect the public’s consumer rights in a timely manner. He also faulted the 2nd, 3rd and 4th Respondents for failing to discharge its mandate as a regulator in the insurance sector.
11.On privity of contract, it was submitted that the contract of insurance is exempted from this doctrine as the essence of the contract is to protect 3rd Party and hence the state makes it compulsory to take out 3rd Party Insurance by motor vehicle owners, drivers, public transport carriers to protect third parties . In support of its position, the Petitioner relied on the cases of Machakos High Court Constitutional Petition No. 20 of 2018 Peter Mwau Muinde & Anor vs Insurance Regulatory Authority & 2 Others, Commission on Administrative Justice V Insurance Regulatory Authority & Another (2017) eKLR, Communications Commission of Kenya & 5 Others vs Royal Media Services Limited &5 Others (2014) eKLR, City Council of Nairobi v Wilfred Kamau Githua t/a Githua Associates & another [2016] e KLR and Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd [1967] EA 287.
12.The 2nd and 3rd Respondents filed submissions dated 17/05/2025 but upon perusal, it raised issues that were not related to what is before the court but in relation to Kitui Constitutional Petition E003 of 2023. The court could not thus consider them.
13.The interested party filed submissions dated 18/06/2025 and raised four issues. First, it was submitted that the Petition does not disclose a constitutional question capable of redress under Article 22 and 23 of the Constitution of Kenya and has not demonstrated how the interested party ahs violated his constitutional rights to liberty, movement and association and peaceful ownership of property. In support of this contention, reliance was placed on the following cases; Anarita Karimi Njeru (Supra), Gabriel Mutava & 2 Others -vs- Managing Director Kenya Ports Authority & Another (2016) eKLR, CNM -vs- WMG alias HN (Constitutional Petition No. 586 of 2017), Papinder Kaur Atwal -vs- Manjit Singh Amrit (Nairobi Petition No. 236 of 2011) and Communication Commission of Kenya & Others -vs- Royal Media Services Limited & 5 Others (2014) eKLR.
14.Secondly, it was submitted that the interested party cannot be compelled to enforce a contract that it was not a party to as it was merely a beneficiary of a judgment in Mavoko PMCC 860 of 2015. That the Petitioner has not claimed inability to settle the decretal sum and should therefore satisfy the decree then pursue indemnity through the statutory channels applicable under the Insurance Act and Policy Holders compensation fund regulations. Lastly, it was submitted that the Petition was an abuse of the court process as there exists clear, adequate and effective statutory mechanisms to address the issues in contention. In further support of its submissions, reliance was placed on the cases of Agricultural Finance Corporation -vs- Lengetia Ltd & Another (Civil Appeal No.104 of 1984), George Mbugua Ng'ang'a -vs- Concord Insurance Co. Ltd & Policyholders Compensation Fund (2022) eKLR, Patrick Nyaga Muriithi -vs- Peter Githinji Maina (2022) eKLR, Isaac Juma -vs- Charles Kiplagat & Another (2018) eKLR, Mumo Matemu -vs- Trusted Society of Human Rights Alliance & 5 Others (2013) eKLR, and Communication Commission of Kenya & Others -vs- *Royal Media Services Limited & 5 Others (2014) eKLR.
Analysis and Determination
15.I have considered the Petition, the rival affidavits as well as the submissions on record and I have noted that parties do not dispute that concord Insurance Company Ltd was placed under statutory management vide Gazette Notice No.2194 on 6th February 2013 and declared a moratorium for a period of 12 months. They also do not contest that there is a statutory manager who was appointed on 27/01/2020 in a judgment delivered by Justice Majanja. As regards the interested party, the decree extracted from Mavoko PMCC 860 of 2015 is not disputed. The questions that thus are thus left for this court to determine are;a.Whether the Constitutional threshold for a Constitutional Petition have been metb.Whether the Petitioner has exhausted all remedies available to himc.Whether the 3rd Respondent fulfilled its obligations under the lawd.Whether the rights of the Petitioner to liberty, movement and association and peaceful ownership of his property have been infringede.Whether the Petitioner is entitled to the orders sought.
16.A constitutional petition must thus satisfy threshold of precision by citing the provisions of the Constitution that are alleged to have been violated and a descriptive account of the said violation. Mere regurgitation of the constitutional provisions followed by general statements is not enough. This was affirmed by the Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR which cited with approval the locus classicus case of Anarita Karimi Njeru v Republic (1979) KLR 154. A Petitioner must identify the provisions that are alleged to be violated and show how the said provisions were violated from the facts and evidence of the case.
17.In this case, the Petitioner contends that his right to rights of the Petitioner to liberty, movement and association and peaceful ownership of his property have been infringed. He avers that he stands to suffer by deprivation of his property and livelihood contrary to Art 40 and right to privacy contrary to Article 31 and Fair and Administration Action contrary to Article 47 and Protection and equal benefit of the Law by Article 27 of the Constitution due to execution of the judgment in Mavoko PMCC 860 of 2025 by attachment of properties at his business premises and matrimonial home and now eminent committal to civil jail contrary to Art 28 & 31 of Constitution. This he says, is due to the fact that the 2nd and 3rd Respondent who should regulate the insurance sector have failed to do so and as such there is a decree which should be satisfied by the insurance company because he paid premiums but now will have to pay from his own pocket.
18.I therefore find that the threshold for a Constitutional Petition has been met and I am persuaded by the finding of Justice Odunga, as he then was, in the case of Muinde & another v Insurance Regulatory Authority & 2 others; KBU 400 A & 2 others (Interested Parties) [2022] KEHC 568 (KLR) where the court rendered itself as follows;
19.The second issue is whether the Petitioner has exhausted all remedies available to him. From the pleadings and annexures on record, the Petitioner has not demonstrated any steps he took towards approaching the 2nd, 3rd and 4th Respondent or the statutory manager before approaching this court for the remedies sought.
20.In Mumo Matemu supra, the court went ahead to state that a person should not merely allege violation of a right or contravention of the Constitution without proper factual foundation and without showing that other alternative legal remedies are inadequate or ineffective.
21.Section 169 of the Insurance Act establishes the 4th Respondent and provides as follows;
22.The 4th Respondent is a State Corporation under the National Treasury that was established through the Legal Notice No.105 of 2004 and commenced its operations in January 2005. The Insurance (Policyholders' Compensation Fund) Regulations regulations under regulation 14 (1) provides that;
23.In this case, there is no evidence that this was done and therefore the 2nd, 3rd and 4th Respondents cannot be found to have infringed on the Petitioner’s rights. The purpose of advertisement in the gazette and newspaper is usually to inform the public of the steps that have been taken and to allow for any stakeholders including creditors and insured in this case to approach the right forum and state their claim.
24.The third issue is whether the 3rd Respondent fulfilled its obligations under the law. Section 3A of the Insurance Act of the Insurance Act Cap 487 Laws of Kenya outlines the objects and functions of the 1st Respondent to include the supervision of regulated entities within the insurance market by ensuring that the highest standards of insurance are upheld. The Petitioner avers that the 3rd Respondent did not fulfil its mandate. This mandate is found under section 67 C of the Insurance Act which provides for the power of the Commissioner to intervene in management and provides as follows;
25.From the annexures to the Response to the Petition filed by the 2nd and 3rd Respondents, it has been demonstrated that they did comply with the above section by;a.Appointment of three (3) persons to the Board of Directors of Concord Insurance Company Limited (under liquidation).b.Conducting an on-site inspection of Concord Insurance Company Limited on 1st February, 2013 and noted that its Head Office was closed and not accessible to the public.c.Making a decision by the Board of Directors of the 3rd Respondent herein to place Concord Insurance Company Limited (under liquidation) under Statutory Management.d.Appointment of Mr. Charles Osoro Makone as the Statutory Manager of Concord Insurance Company Limited to act in the best interest of the public vide a Press Statement dated 6th February, 2013.
26.I therefore find that the 3rd Respondent fulfilled its obligations under the Act.
27.The last issue is whether the Petitioner is entitled to the orders sought. Now turning to the Interested Party, I note that there is imminent danger of the property of the Applicant being proclaimed and the insurance Act does protect the Petitioner. I reiterate section 67 (C ) (10) of the Insurance Act that provides that;
28.The Petitioner is thus protected until the moratorium is lifted. Incidentally, the Petitioner takes issue with the moratorium which is what is shielding him from execution. The 2nd and 3rd Respondent should now finalize on management of the insurance company in conjunction with the statutory manager and the 4th Respondent and satisfy the decree which the insurance company ought to have paid. Justice should not be delayed at the expense of decree holders such as the interested party. Section 3A (2) of the Insurance Act indicates that the objects of the supervision of insurers and reinsurers by IRA shall be—
29.The Court of Appeal in Commission on Administrative Justice vs. Insurance Regulatory Authority & Another [2017] eKLR in discussing the above section stated as follows;
30.In this case, the Appellant has only demonstrated that his property are faced with a threat of being auctioned but this court cannot be able to determine if indeed he had paid the premiums to date and whether the policy covered the interested party. Those are issues that can only be determined in a different forum, not this court at this juncture. The court cannot issue declarations on who should pay the decretal sum without full facts.
31.The issues raised in this petition ought to be litigated under the Insurance Act. They are not purely constitutional issues. It is now trite that where parties can resolve their disputes under statute they ought not to approach the court by way of constitutional petitions. The petition does not also meet the test in the Anarita Karimi case See the supreme court decision in the case of Communication Commission of Kenya & Others v Royal Media Services Limited & 5 Others [2014] eKLR where the court stated:
32.Similarly in the case of Gabriel Mutava & 2 others v managing Director Kenya post Authority & Another [2016] eKLR the court stated:-
33.This petition is clearly not merited and it is dismissed with costs to the Respondents.Orders accordingly.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 4TH DAY OF DECEMBER, 2025.E. N. MAINAJUDGEIn The Presence Of:Ms Mumo for 1st, 2nd and 3rd RespondentsMr. Mulinge for the PetitionerGeoffrey – Court Assistant/Interpreter