[2022] KEHC 13117 (KLR)

AIG Kenya Insurance Co Ltd & another v Kiprop & 2 others (Civil Appeal 45 of 2018) [2022] KEHC 13117 (KLR) (Civ) (21 July 2022) (Judgment)

Neutral citation: [2022] KEHC 13117 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 45 of 2018

DO Chepkwony, J

July 21, 2022

Between

AIG Kenya Insurance Company Limited

Appellant

and

Jackson Kandie Kiprop

Plaintiff

and

Jackson Kandie Kiprop

1st Respondent

Jacob Mutindi Muia

2nd Respondent

and

Jacob Mutinda Muia

Defendant

(Being and Appeal against the Ruling/Order of the Honorable D.O Mbeja [SRM] delivered on 24th January, 2018 in Nairobi CMCC No. 7060 of 2016)

Judgment

1. The 2nd Respondent was sued by the 1st Respondent vide a Plaint dated 12th October, 2016 seeking to recover monies that were expended in repairing Motor Vehicle Registration Number KAZ 270E allegedly damaged by Motor Vehicle Registration Number KBR 864V registered and/or beneficially owned by the 2nd Respondent. It was alleged that 2nd Respondents Motor Vehicle had rammed on the 1st Respondents Motor Vehicle causing the damage. Upon filing its statement of defence, the 2nd Respondent further vide Chamber Summons Application dated 10th May, 2017 sought leave to join the Appellant as a Third Party on grounds that Appellant was its insurer and bound to indemnify the 2nd Respondent. That application was allowed by the trial court on 12th July, 2017. On being joined as a Third Party, the Appellant filed an Application dated 25th September, 2017 seeking to be struck out of the proceedings on grounds that it was irregularly, unlawfully and wrongfully joined as a party. However, upon hearing the parties on the application, the trial Magistrate on 24th June, 2018 dismissed the Appellant’s Application on reasons that the Appellant was a necessary party in the suit and duty bound to indemnify the 2nd Respondent in the event of adverse orders being made against the 2nd Respondent.

2. The Appellant was dissatisfied by the trial court’s decision and lodged the instant appeal vide a Memorandum of Appeal dated 31st January, 2018, wherein it faulted the trial court’s decision on grounds that the learned trial Magistrate erred in law and in fact in;a.Dismissing the Appellant’s/Tried Party’s application dated 25th September, 2017 without sound legal reasons and/or at all for so doing;b.The learned Magistrate totally misdirected and misplaced himself on the nature of the Appellant’s /Third Party’s prayers and evidence that were placed before him the hearing and for justifiable determination, as such, arrived at the wrong findings and conclusions;c.Failing to consider that the issues between the Plaintiff/1st Respondent and the Defendant/2nd Respondent was founded on tort and that of the Appellant/Third Party and the 2nd Respondent/Defendant is founded on contract thereby arriving at the wrong findings and conclusion;d.In holding that the Appellant is properly enjoined as necessary party to the suit;e.In holding that the Appellant is liable to satisfy any decree that may be passed at the conclusion of the suit;f.Totally failing to properly consider the Appellant’s submissions and the authorities cited thereat at the trial of the Appellant’s application or at all.

3. The Appellant thus sought the court to allow the appeal and set aside the trial court’s Ruling dated 24th January, 2018 and substitute the same with an order allowing the application dated 25th September, 2017.

4. Pursuant to this court’s directions, parties were directed to canvass the appeal by way of written submissions and as the record reflects, the Appellant filed submissions dated 9th May, 2022, whilst the 2nd Respondent’s are dated 22nd April, 2022. The 1st Respondent never filed any submissions.

Analysis and Determination 5. Having read through the pleadings, the submissions filed by parties and the authorities relied on, I am of the view that the main issue for determination is whether the Appellant was irregularly, unlawfully and wrongfully joined as a party to this suit.

6. Order 1 Rule 15 of the Civil Procedure Rules, 2010 on joinder of a Third Party provides;15. (1)Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party) —(a)that he is entitled to contribution or indemnity; or(b)that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or(c)that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit.

7. In the presents case, it is the Appellant’s contention that the Third Party Notice contravenes Sections 5 and 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 Laws of Kenya, and went on to cite various cases that are of the view that an Insurance Company cannot in law be joined as a party in a tortious claim.

8. I have perused those authorities and however persuasive they are, I have found none with similar facts in issues as the present case. In the instant suit, the central contestation is compensation of repair costs and not general damages from negligence as it was in the cases cited by the Appellant.

9. However, I associate myself with the decision by the Court of Appeal in the case of David Kinyanjui & 2 Others –vs- Meshack Omari Monyori [1998]eKLR cited by the 2nd Respondent, wherein the superior court observed that;“But the important point is that the insurer was never made a party to the suit, if indeed it could be so brought into the suit. It must be borne in mind that in respect of a material damage claim the party suffering damage cannot eventually proceed against the tortfeasor's insurer as there is no provision in our law for such eventuality. The Insurance (Motor Vehicles Third Party Risks) Act, Cap 405, Laws of Kenya gives right to such a person to file a declaratory suit against the tortfeasor's insurer if the claim is for physical injuries or death.”

10. Guided by the Court of Appeal’s decision above, I am of the opinion that the Appellant is a necessary party. The Appellant does not deny that there exists a contract between itself and the 2nd Respondent. In the event the 1st Respondent succeeds at the trial court, the trial court can only hold the Appellant liable to indemnify the 2nd Respondent and to satisfy the Judgment and Decree.

11. The upshot, therefore, is that the Appeal is without merit and is hereby dismissed with costs to the 2nd Respondent.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED A NAIROBI THIS 21ST DAY OF JULY, 2022. D. O. CHEPKWONYJUDGE