[2020] KEHC 6272 (KLR)
The court found that the defendant breached an express term of the insurance policy by using the insured motor vehicle for taxi operations, which was explicitly prohibited. The plaintiff produced the policy and supporting evidence, including the investigation report and notice of repudiation, demonstrating both the...
Source-derived case information.
- Citation
- [2020] KEHC 6272 (KLR)
- Parties
- Plaintiff: British American Insurance Co. Ltd; Defendant: Benjamin Ndolo Kimote
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 360 of 2014
- Procedural Posture
- Civil Suit / Judgment After Formal Proof Following Interlocutory Judgment Due to Non Appearance by Defendant
- Outcome
- Judgment for the plaintiff as prayed in the plaint; costs awarded to the plaintiff.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Insurance Contracts, Policy Repudiation, Breach of Policy Terms, Motor Vehicle Insurance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
British American Insurance Co. Ltd
Plaintiff
Benjamin Ndolo Kimote
Defendant
Procedural Posture
Civil Suit / Judgment After Formal Proof Following Interlocutory Judgment Due to Non Appearance by Defendant
Legal Issues
- 1 Whether the plaintiff is entitled to repudiate the insurance policy due to breach of its terms by the defendant.
- 2 Whether the use of the insured motor vehicle as a taxi constituted a violation of the policy conditions.
Ratio Decidendi
The court found that the defendant breached an express term of the insurance policy by using the insured motor vehicle for taxi operations, which was explicitly prohibited. The plaintiff produced the policy and supporting evidence, including the investigation report and notice of repudiation, demonstrating both the breach and the plaintiff's compliance with procedural requirements for repudiation. The defendant, having been duly served with both the notice and summons to enter appearance, failed to contest the suit or provide any defence. The court held that the plaintiff was entitled to repudiate the policy and was exonerated from any liability arising from the accident involving the...
Court Disposition
Judgment for the plaintiff as prayed in the plaint; costs awarded to the plaintiff.
Orders
- It is declared that the plaintiff is entitled to repudiate the insurance policy issued to the defendant in respect of motor vehicle registration No. KBP 723 Z.
- The plaintiff is exonerated from any liability arising from the accident involving the said vehicle on 9th June 2014.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 360 OF 2014
BRITISH AMERICAN INSURANCE CO. LTD..........PLAINTIFF
VERSUS
BENJAMIN NDOLO KIMOTE.................................DEFENDANT
JUDGMENT
The plaintiff in this suit insured the defendant in relation to his motor vehicle registration No. KBP 723 Z, and issued a private comprehensive motor policy to that effect. The cover restricted the use of the motor vehicle to private purposes only. It was an express term of the policy that the motor vehicle would not be used for any other business, and more so public service or taxi operations.
While the said policy was still operational, on 9th June 2014 the said motor vehicle was involved in an accident while being used as a taxi, ferrying a fare paying passenger in violation of the policy aforesaid.
This suit has been brought for orders that, it be declared the plaintiff is entitled to avoid or repudiate the policy aforesaid in view of the defendant’s breach thereof. The defendant was served with summons to enter appearance but did not comply or file any defence.
On 24th March, 2015 upon an application by the plaintiff, an interlocutory judgment against the defendant was accordingly entered. A formal proof then followed and submissions filed on behalf of the plaintiff.
This is a very straightforward matter because the facts speak for themselves. The policy produced and other exhibits tendered in the trial, exonerate the plaintiff from any liability that may arise by way of any suit or claim raised against the defendant. The use of the motor vehicle as a taxi was in violation of the policy aforesaid. The defendant’s driver, according to the investigation report, was to blame for the accident. That cannot be assigned or transferred to the plaintiff herein.
The defendant was issued with a notice to repudiate the policy dated 6th October, 2014 using his known address as provided by him to the plaintiff. The notice was delivered to him by registered post and there is no evidence that it was returned to the plaintiff. He therefore had notice of repudiation. He knew he had breached the terms of the policy. He was duly served with summons to enter appearance. There is no doubt whatsoever from the pleadings and the evidence that the plaintiff’s suit must succeed.
Accordingly, guided by the evidence presented on behalf of the plaintiff, I enter judgment in favour of the plaintiff as prayed in the plaint. The plaintiff shall also have the costs of the suit.
Dated, signed and delivered at Nairobi this 7th Day of May 2020.
A. MBOGHOLI MSAGHA
JUDGE