REPUBLIC OF KENYAIN THE HIGH COURT OF KENYA AT SIAYACIVIL APPEAL NO. E017 OF 2025APA INSURANCE LTD.............................................APPELLANT-VERSUS-RAI CEMENT LIMITED........................................RESPONDENT(Being an Appeal from the Ruling and Order of Honourable Benjamin Limo, (PM) delivered on the 4th February 2025 in Siaya CMCC No. E005 of 2021)-BETWEEN-APA INSURANCE LTD...............................................PLAINTIFFANDRAI CEMENT LIMITED........................................RESPONDENTJUDGMENTThe appeal herein arises from the judgement of Hon B. LIMO (CM) in Siaya CMCC No. E005 of 2021 delivered on 4TH February,2025 wherein he dismissed the Appellant’s application dated 10/6/2024 seeking orders of review or setting aside of orders dated 16/4/2024 and for hearing of the suit on merits.The Appellant, being aggrieved and dissatisfied with the entire ruling appealed against the same by filing a Memorandum of Appeal dated 28/2/2025 wherein it raised the following grounds: -The earned trial Magistrate erred in fact and in law and grossly misdirected himself in dismissing the Appellant’s suit and Application without according the Appellant a chance to be heard on merit.The learned trial Magistrate erred in law and in fact in dismissing the Appellant’s suit for non-attendance yet the Appellant has always been willing and ready to prosecute her claim to conclusion.The learned trial Magistrate erred in law and in fact when he upheld the Respondent’s Preliminary Objection on the doctrine of res judicata yet the issues raised in the Applicant’s Application were yet to be heard and determined on merit.The learned trial Magistrate further erred when he failed to hold that a suit can only be deemed to be barred by the doctrine of res judicata when it was heard and determined on the substantive merits of the case as opposed to the suit being dismissed on preliminary technical points.The learned trial Magistrate erred when he failed to hold that the doctrine of res judicata bars a future suit or Application only when the case is resolved based on the facts and evidence of the case.The learned trial Magistrate could have only further erred in fact and in law in disregarding the Appellant’s pleadings and written submissions and the Appellant has now been condemned unheard.Reasons wherefore the Appellant prays that the appeal be allowed with costs and that the ruling delivered by Honourable Benjamin Limo on 4th February, 2025 in SIAYA CMCC NO. E005 of 2021 be quashed, set aside and/ or varied.3 This being the first appellate court, its duty is re-evaluating the evidence and come to its own independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account the fact that it neither saw nor heard the witness as they testified. See the case of Selle & Another Vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Peter Vs. Sunday Post Ltd. [1968] EA 424.4. The record of the trial court indicates that the Appellant had filed a Plaint dated 8/2/2021 wherein it sought for a declaration that the Plaintiff is not bound to or liable to make payments or indemnify the Defendant under the said Insurance Policy cover in respect of any claim for death, bodily injury, damage to property or any claim by third parties arising out of the road traffic accident which occurred on 10/11/2018 at Uranga area along Siaya-Nyandorera road involving the Defendant’s motor vehicle registration number KCE 923 pulling trailer number ZF 8078. Apparently, an interlocutory judgement was entered by the trial court against the Appellant and that an application dated 23/4/2024 for setting the said interlocutory judgement was filed by the Appellant which was dismissed by the trial court and that another application dated 10/6/2024 seeking for review, setting aside or variation of orders dated 16/4/2024 wherein the Appellant’s suit was dismissed for want of prosecution. In the latest a Click Here to Read the rest of this document