[2023] KEMC 141 (KLR)
The court found that the defendant insurer was properly served with statutory notice and failed to enter appearance or defend the suit. The plaintiff had obtained a valid judgment against the insured, and under section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act, the insurer is liable to satisfy...
Source-derived case information.
- Citation
- [2023] KEMC 141 (KLR)
- Parties
- Plaintiff: Samson Ochieng Chan; Defendant: Xplico Insurance Co Ltd
- Court
- Magistrate's Court
- Court Station
- Milimani Commercial Chief Magistrate's Courts
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 4242 of 2019
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- JP Aduke
- Legal Topics
- Motor Vehicle Accident, Third Party Liability, Declaratory Suit, Default Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Ochieng Chan
Plaintiff
Xplico Insurance Co Ltd
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendant is liable to satisfy the judgment and decree obtained by the plaintiff against the insured under section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act.
- 2 Whether the plaintiff is entitled to the principal sum, costs, and interest as claimed.
Ratio Decidendi
The court found that the defendant insurer was properly served with statutory notice and failed to enter appearance or defend the suit. The plaintiff had obtained a valid judgment against the insured, and under section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act, the insurer is liable to satisfy such judgment. The court held that the sums awarded in the prior judgment constitute special damages in this declaratory suit. The court declined to award additional interest on the principal sum to avoid compounding interest and unjust enrichment, but awarded costs of the suit and interest on costs from the date of this judgment until payment in full.
Court Disposition
judgment for the plaintiff
Orders
- The defendant is liable and ordered to pay the plaintiff the sums outlined in the judgment dated 19th May 2017 issued by Hon Murage -RM.
- The plaintiff is awarded costs of this suit.
Full Case Text
Judgment text and source record
19 paragraphs
Chan v Xplico Insurance Co Ltd (Civil Suit 4242 of 2019) [2023] KEMC 141 (KLR) (12 May 2023) (Judgment)
Neutral citation: [2023] KEMC 141 (KLR)
Republic of Kenya
In the Milimani Commercial Chief Magistrate's Courts
Civil Suit 4242 of 2019
JP Aduke, SRM
May 12, 2023
Between
Samson Ochieng Chan
Plaintiff
and
Xplico Insurance Co Ltd
Defendant
Judgment
1. The Plaintiff filed this suit against the defendants following a road traffic accident on 29th June 2014 in Nairobi. In the plaint on file, the plaintiff avers that a road traffic accident happened, the plaintiff moved to court and obtained a judgment against the insured. The plaintiff avers that the defendant herein has since declined to satisfy the judgment and decree of this court. This is a declaratory suit.
2. Return of Service on Record shows that the defendants were served with the suit papers. The defendant failed to enter appearance within the stipulated period. As a result, judgment in default of appearance was entered against the Defendant. At the hearing thereof, the plaintiff called one witness who testified on oath. The plaintiff filed written submissions. The issues for determination before this court are liability and quantum.1. LiabilityWith respect to liability, I have seen a copy of the judgment of Hon M.W. Murage -RM dated 19th May 2017. I have also seen a copy of the statutory notice issued to the Defendant herein. I have considered the above against the provisions of section 10 (1) of the Insurance (Motor Vehicle Third Party Risks) Act and find that the Defendant herein is liable to pay the Plaintiff the benefits of the aforementioned judgement. This in my view settles the issue of liability.2. QuontumWith respect to quantum, the plaintiff prays for the costs of this suit, and interest at court rates until payment in full. The judgement before me awarded a sum of KES 709,500/- in principal. Having considered the submissions filed by the plaintiff and all the authorities annexed thereto, I declare as follows:
3. I enter judgement in favour of the plaintiff as follows:1. The Defendant is liable and is hereby ordered to pay the Plaintiff herein the sums outlined in the judgement dated 19th May 2017 issued by Hon Murage -RM.2. Costs of this suit.3. Interest on 2 above at court rates.4. I note that the Plaintiff has prayed for interest on the amount outstanding in (1) above. It is my considered view that the sums outlined in the judgement dated 19th May 2017 are treated as special damages in this suit. The plaintiff was awarded interest in that judgment. Awarding interest in this suit on the award will have a compounding effect on the interest and amount to unjust enrichment in my view. I decline to award interest on the outstanding award for the reasons outlined in the text of the decision.
4. The Plaintiff shall have costs in this suit and interests as outlined above from the date of this judgement until payment in full.Aduke Jeal Praxades AtienoSenior Resident Magistrate
JUDGEMENT SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 12TH MAY 2023 IN THE ABSENCE/PRESENCE OF THE PARTIES AT …………(INSERT TIME).In the presence of :1. Court Assistant: Benjamin Kombe.2. Counsel for the Plaintiff- …………………N/A….................(Name, Signature, Date)3. For the Defence: ……………………N/A................................(Name, Signature, Date)