1.The Plaintiff filed this suit on 19th July 2022 seeking the following orders;a.A declaration that the Plaintiff is entitled to avoid policy of insurance No. 02/COMP/01/0700/3052/2021.b.A declaration that the Plaintiff has effectively avoided the policy of insurance No 02/COMP/01/0700/3052/2021 and is not liable to pay any claims arising out of the accident of 14/11/2012 involving motor vehicle registration number KCN 774 H make, Toyotas Ractis including but not limited to judgment and /or and decree that may arise from Mombasa RMCC No. E 713 of 2022.c.Cost of his suitd.Any other relief the court deems fit to grant.
2.The Plaintiff stated that they covered the Defendant’s motor vehicle KCN 774 H Toyota Ractis vide policy No. XX/3052/201 from 25th January 2021 to 24th February 2022. The motor vehicle was involved in an accident on 14th November 2021. The Plaintiff in the primary suit, Kennedy Owino Odor, was injured and filed a suit in Mombasa PMCC 713 of 2022 to recover damages.
3.They stated that their investigations report revealed that there was breach of express terms of contracts that the insured was not to carry passengers for hire or reward. The particulars of breach of the Insurance Policy and particulars of misrepresentation and material non-disclosure were set out in paragraphs 9 and 10 of the plaint.
4.The prayers sought by their very nature are declarations. The Defendant denied this averment and stated that the said motor vehicle was insured by the defendant and has never used it as commercial vehicle for purposes of carriage of goods used as a taxi.
6.The Plaintiff filed an application dated 6th September 2022 seeking to have the statement of defence struck out and judgment entered in their favour, and costs of the suit, on grounds that the defence had no triable issues.
7.The Defendant replied thought the affidavit dated 10th November 2022 sworn on an unknown date. The parties were directed parties to file written submissions and the same was complied with. I have considered the rival submissions as filed.
8.The law on striking out is setting out in the case of DT Dobie & Company Ltd vs Muchina  eKLR it was stated thus;
10.A party should not easily be driven out the seat of justice, even if he has one issue. In this matter, the defence is that the party did not use the motor vehicle in issue for hire or reward. This is a sufficient defence.
11.The Defendant’s submissions were fairly comprehensive. The Defendant stated that a defence cannot be struck out merely because it demurred. A pleading can only be struck out if no averment can cure the same.
12.The Defendant relies on the authority of Aaron Fredrick v Crown A. Industries and another. The Applicant filed submissions starting that they have made a case for striking out. They rely on the locus classicus case of Raghbir Singh Chatte v National Bank of Kenya Limited [supra] eKLR.
13.In the case of Angaluki Muaka v Beryl Awinja Sakwa  eKLR, the court stated as follows;
14.Further, there is a triable issue. A trial issue is that which it is not a must that it succeeds but is capable of trial. I have perused the replying affidavit and note that the application has been adequately answered.
15.Even if I was to strike out the defence, the court cannot enter default judgment. The plaintiff must proof its case. In fact, it is the plaintiff who has not had basis for entry of judgment. There is no annexure showing the motor vehicle was used as s taxi or for hire or reward.
16.Therefore, I do not find any merit in the application. The subject matter is less than Ksh. 20,000,000 and the matter should be heard by the Chief Magistrates’ Court in Mombasa.
17.Lastly, on the issue of costs, the same follow the event as guided by section 27 of the Civil Procedure Act. The Respondent being the successful party is entitled to costs and I so award.
18.Following the foregone discourse, the upshot is that the following orders do hereby issue: -a.The application dated 6th September, 2022 is has got no merits and is hereby dismissed.b.Matter is hereby transferred to the Chief Magistrate’s Court at Mombasa for hearing and final disposal.c.Parties to fix a mention date before the said court for directions.d.Costs of the application awarded to the Respondent.Orders accordingly.