[2022] KEHC 16514 (KLR)

First Assurance Company Ltd v Njoroge (Suing as Legal Representative of the Estate of Meshack Njoroge Kabuti - Deceased) (Civil Appeal 61 of 2019) [2022] KEHC 16514 (KLR) (8 November 2022) (Judgment)

Neutral citation: [2022] KEHC 16514 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 61 of 2019

MW Muigai, J

November 8, 2022

Between

First Assurance Company Ltd

Appellant

and

Margaret Wanjiru Njoroge (Suing as Legal Representative of the Estate of Meshack Njoroge Kabuti - Deceased)

Respondent

(An Appeal from the ruling and Order of Hon. A. G. Kibiru (Mr.) Chief Magistrate in Machakos CMCC No 1452 of 2010 delivered on 3rd April, 2019)

Judgment

Background 1. By a Plaint dated November 24, 2010 and filed on November 24, 2010 Plaintiff sued the Defendant in Machakos CMCC No 1452 of 2010. The plaintiff sought judgment against the Defendant for;a.A declaration that the defendant is liable to satisfy the decree in.b.Costs of the suit.

2. The Plaintiff has pleaded that the Defendant was at all material times relevant to this suit an Insurance Company providing insurance services.

3. That the motor vehicle Reg No KAD 155 S was owned by the Defendant’s Insurer and had a valid Insurance Cover.

4. That the Plaintiff subsequently filed a suit against the Defendant’s Insurer being CMCC No 922 of 2008 – Machakos, Margaret Wanjiru Njoroge v Star Transporters. Judgment was entered against the Defendant’s insured and a Decree was issued for Kshs 466,488/- as at February 26, 2010.

Statement of Defence Filed on December 17, 2010 5. The Defendant stated that it was never served with any Statutory Notice under the provisions of cap 405 laws of Kenya.

6. That if any policy existed between itself and the defendant in Machakos CMCC No 922 of 2008 regarding the motor vehicle registration KAD 155 S then the same was not a Third Party Policy and therefore no cause of action lies under the provisions of the Insurance (Motor Vehicle Third Party Risks) Act cap 405 laws of Kenya.

7. That the Defendant is a stranger to the suit as it was never a party to the said Machakos CMCC No 922 of 2008 nor was the defendant aware of the institution of the said suit hence not under any statutory duty to satisfy the decree in the said suit.

8. That the Plaintiff fraudulently filed the suit and obtained judgment without notifying the defendant therein of the institution of the said suit. The particulars of fraud is las follows; failing to notify the defendant herein or the defendant in Machakos CMCC No 922 of 2008 of the institution of the said suit; the Plaintiff in Machakos CMCC No 922 of 2008 knowing that the claim was statutory time barred failed to notify the defendant therein of its existence and failed to serve the Statutory Notice.

Reply To Defence 9. The Plaintiff denies all the allegations contained in the defence in toto and put the Defendant to strict proof thereof; that the Defence herein is fatally defective, frivolous, vexatious and shall be applying that the same be struck out and judgment entered as prayed in the plaint.

Notice Of Motion 10. The Plaintiff filed Notice of motion dated August 30, 2012 on August 31, 2012 which is subject of this Appeal seeking the following prayers:-a.That the Defendant/Respondent’s defence filed on December 17, 2010 be struck out as frivolous, vexatious, a sham based on misconception of the law and otherwise amounts to an abuse of the court’s abuse of the court’s process and only made to delay the fast disposition of this suit.b.That summary judgment be entered for the plaintiff/applicant against the defendant/respondent in terms of the Plaint.c.That the cost of this Application be to the plaintiff/applicant.

11. The application was based on the following grounds;a.That the plaintiff’s claim is for liquidated sum with interest.b.That the defendant’s defence does not sufficiently traverse the allegation in the plain and therefore is frivolous, vexatious and an abuse of the court process.c.That the defendants defence is a sham only meant to delay the finalization of this matter.d.That under the relevant provisions the plaintiff is entitled to the orders sought.e.That the plaintiff is bound to suffer prejudice if the sought orders are not granted.

12. On November 7, 2018 Mr Makau advocate for the Plaintiff informed the Court that there was a pending application by the Plaintiff dated August 30, 2012. The Court directed the parties to file written submissions and a Ruling date was given.

Trial Court Ruling 13. The trial court in its ruling delivered on April 3, 2019 found that the respondent ought to have raised the statutory issues in the primary suit and that it was ironical that the Respondent even engaged the Plaintiff/Applicant’s counsel into negotiations aware that they were not liable. That the defence filed herein on the December 17, 2010 was frivolous, vexatious and did not raise any triable issues.

14. The Court further found that allowing the matter to proceed will simply be a waste of precious judicial time as the same will fly on the face of article 159(2)(b) that requires that justice should not be delayed. Consequently the Court proceeded to strike out the said defence and enter summary judgment for the Plaintiff/Applicant in terms set out in the Plaint. The Plaintiff/Applicant was awarded costs of the suit and the application.

Appeal 15. The Appellant was /is dissatisfied with the Ruling of the Trial Court filed his Memorandum of Appeal dated April 16, 2019 on the following condensed grounds;1. That the learned Trial Magistrate misdirected himself and erred both in law and in fact by allowing the Plaintiff’s Application to strike out the Defendant’s Statement of Defense; by striking out the Defendants statement of defense; failed to appreciate that the Defendant’s statement of defence raised weighty triable issues that could only be resolved at a full hearing and not at an interlocutory stage.2. That the learned Trial Magistrate misdirected himself and erred both in law and in fact in failing to find that the Plaintiff’s suit against the Defendant could not stand as it was premised on wrong principles and the wrong application of the law making the whole suit non-starter and defective ab initio; premised on a defective decree making the whole proceedings defective ab initio.3. That the learned Trial Magistrate erred in law and fact by failing to find that under the Insurance (Motor Vehicles Third Party Risks) Act Cap 405 Laws of Kenya, a declaratory suit against and insurer only lies in personal injury claims and not in material damage claims.4. That the learned Trial Magistrate erred in law and in fact by failing to find that the leave obtained by the Plaintiff to file Machakos CMCC No 922 of 2008 of time was in itself irregularly obtained.5. That the learned Trial Magistrate erred in law and in fact by failing to find that under the Insurance (Motor Vehicles Third Party Risks) Act cap 405 laws of Kenya, leave to file a suit out of time only lies in personal injury claims and not in material damage claims; failed to apply the provisions of section 27 of the Limitation of Actions Act; failed to address himself on the gist of the law whether leave to bring an action out of time can lie in a material damage claim.6. That the learned Trial Magistrate misdirected himself and erred in law and in fact in finding that the mere fact that there were negotiations between the Plaintiff and the defendant did not entitle her to file the said suit in time.7. That the learned Trial Magistrate erred in law and in fact in failing to find that leave to file suit out of time is usually ex-parte and therefore can only be challenged in subsequent proceedings.8. That the learned Trial Magistrate erred both in law and in fact by not properly considering the Defendants Replying Affidavit and hence did not write a considered Ruling; failed to uphold precedent and the doctrine of stare decisis.9. That the learned Trial Magistrate erred in law and in fact in failing to find that by striking out the Defendants Statement of defence is to perpetuate illegalities that are not curable by any form of an application; failed to address himself on the gist of the law whether it is proper to file a declaratory suit in a material damage claim.

Written Submissions Appellant’s Submissions Dated January 28, 2022 16. It was submitted that the claim in the primary suit was for material damage and therefore the provisions of Cap 405 do not apply.

17. That the Court erred in law and fact by striking out the defence simply because the parties were negotiating.

18. That the trial court erred I law and if fact to hold that the appellant should have filed a declaratory suit as provided under section 10(i) yet the matter is not under Cap 405.

19. In the Civil Appeal No 78 of 2019 Kenya Alliance Insurance Company Limited v Naomi Wambui Ngira &another(Suing as the legal representative and administrators of the estate of Nelson Macharia Maina ((deceased) [2021] eKLR the Court in analyzing the provisions of section 10(4) ofCap 405 found and held that;“The requirement for an insurer to file a declaratory suit is intended for only those liabilities for which the insurer is entitled to repudiate and/or avoid for reasons beyond the express provisions of the policy, specifically being that there was non-disclosure of material facts or a misrepresentation of a material fact. The liability in issue in this case is none such contemplated by the said Section.”

20. Also in the case of Kisii Farmers Co-Union v Sanjay Natwarlal Chanitan T/A oriental Motors [2000] eKLR, the Court of Appeal said that:“it is now well settled law, that the powers to strike out a pleading or any part of a pleading is a power that Courts must exercise with a lot of restraint.”

21. In the case of Kenindia Assurance Co Limited v Laban Idiah Nyamache [2011] eKLR whose facts were on all ... with this case the Court stated as follows on application to strike out the insurance company’s defence:-“It is trite law that striking out pleadings is such a drastic remedy which can only be resorted to sparingly and in the clearest of lakes and appreciating that the right to a hearing is a constitutional right. It has also been stated times without number that a court of law should aim at sustaining a suit and not striking it out. A pleading should only be struck out if it is so weak as to be incapable of redemption an incurable by an amendment.”See also the case of Wachira Waruru and the Standard Limited v Francis Oyatsi CA No 111 of 2000 (UK) the Court of Appeal observed that;“Striking out a defence is so drastic a remedy and it is incumbent upon a judge to give good reasons for doing so.”

22. From the authorities cited the principles emanating are as follows;a.Striking out pleadings is such a drastic remedy which can only be reported to sparingly and in the clearest of cases.b.That the power to strike out a pleading or any part of a pleading is a power that Courts must exercise with a lot of caution.c.The Court ought to cut very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof.d.A pleading should be struck out if it is so weak as to be incapable of redemption and incurable by an amendment.e.No pleading ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action.f.The desire of a court of justice should be to decide cases on merit after allowing the parties at hearing to advance proper and test it in cross-examination.

Respondent’s Submissions Dated May 6, 2022 23. The Respondent submitted that the motor vehicle KAD 155 S was insured by the Appellant vide policy No 04/01/807216 TPO. The Respondent filed the primary suit being CMCC No 992/2008 and the Appellant herein engaged the Respondent in negotiations and there is evidence of correspondence in a pursuit to settle the matter out of Court. When the negotiations failed the matter was heard substantively and judgment issued on January 6, 2010 in the sum of Kshs 466,488/-. As at February 26, 2010 the decretal sum was still unpaid which necessitated the filing of the declaratory suit being CMCC 1452/2010 to compel the Appellant herein to satisfy the said judgment as per section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act.

24. The appellant filed their defence which consisted of mere denials, which necessitated an application by the respondent for striking out of the said defence and entry of judgment as per order 2 rule 15 of the Civil Procedure Rules which provides;“At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—(a)it discloses no reasonable cause of action or defence in law; or(b)it is scandalous, frivolous or vexatious; or(c)it may prejudice, embarrass or delay the fair trial of the action; or(d)it is otherwise an abuse of the process of the court,(e)and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

25. Reliance was made in the HCCC No 21 of 2019 Machakos First Assurance Company Limited v Florence Wavinya Mutua, Raghbir Singh Chatte v National Bank of Kenya Limited – HCCA No 50 of 1996 and in Magunga General Stores v Pepco Distributors Limited [1987] KLR 150 [1986 – 1989] EA 334.

26. The appellant herein was well aware of this matter since inception as evidence by the various correspondences on record. They refused to enter appearance in the primary suit being CMCC No 922 of 2008 and on delivery of the judgment took no steps whatsoever to set it aside therefore the liability was determined and the same stands as no contrary decisions has been made in respect to the same.

27. Section 10(1) of cap 405 provides;“If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.”

28. Section 10(4) of cap 405 provides;No sum shall be payable by an insurer under the foregoing provisions of this section if in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy he is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or, if he has avoided the policy on that ground, that he was entitled so to do apart from any provision contained in it.”

Determination 29. The Court has considered the pleadings and submissions of parties/Counsel with regard to the instant appeal.

30. The issue that emerges for determination is whether the Ruling of the Trial Court of April 3, 2019 that upheld the Respondent’s application to strike out the Appellant’s defense and entered summary judgment should be upheld or set aside.

31. The grounds are condensed as follows;1. The Trial Court failed to appreciate that the Defendant’s statement of defense raised weighty triable issues that could only be resolved at a full hearing and not at an interlocutory stage.2. The whole suit was a non-starter and defective ab initio; premised on a defective decree making the whole proceedings defective ab initio.3. failing to find that leave to file suit out of time is usually ex-parte and therefore can only be challenged in subsequent proceedings.4. failing to find that under the Insurance (Motor Vehicles Third Party Risks) Act Cap 405 Laws of Kenya, a declaratory suit against and insurer only lies in personal injury claims and not in material damage claims.

32. The Appellant took issue with filing of CMCC 922 of 2008 Margaret Wanjiru Njoroge v Star Transporters Limited out of the limitation period prescribed by Section 4(2) of the Limitation of Actions Act and deposed that the Respondent did not legally obtain leave legally under Section 27 of the Limitation of Actions Act.

33. Both provisions are outlined hereinbelow as follows;Limitation of Action Act Section 4(2) provides;An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:Section 27 of Limitation of Actions Act provides;Extension of limitation period in case of ignorance of material facts in actions for negligence, etc.(1)Section 4(2) does not afford a defense to an action founded on tort where—(a)the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and(b)the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and(d)the requirements of subsection (2) are fulfilled in relation to the cause of action.(2)The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff…….

34. An Appeal lies in the High Court as prescribed by section 65 of Civil Procedure Act from any original decree or part of a decree of a subordinate court, [and/or] on a question of law or fact;…..In the instant case it is the decree emanating from the impugned Ruling by the Trial Court of 3/4/2019.

35. The issue regarding the fact that the primary suit CMCC 922 of 2008 Margaret Wanjiru Njoroge v Star Transporters Limited to the declaratory suit CMCC 1452 of 2010 was a non-starter and defective ab initio; premised on a defective decree making the whole proceedings defective ab initio. The appellant submitted that that the leave obtained by the Plaintiff to file Machakos CMCC No 922 of 2008 out of time was in itself irregularly obtained as it was an exparte application and the Appellant was not involved and was contrary to exceptions in Section 27 of Limitation of Actions Act.

36. This Court perused the Record of Appeal and found that the Trial Court was moved to hear and determine the application to strike out the Defense filed on 30/8/2012 (Pg 26 of the record) & Replying Affidavit filed by the Appellant ( Pg 42-43 of the record) The parties filed written submissions ;Plaintiff’s submissions (Pg 44of the record) Defendant’s submissions (Pg47 of the record). The issue was only deposed in paragraph 10 of the Defense (pg 7of the record) All these pleadings and submissions made no reference to the Trial Court as to the incompetent suit that resulted in judgment that was the basis of the Ruling appealed against. During the Notice of Motion seeking striking of the Defense, the parties opted to file written submissions and the issue of limitation period and incompetent were not addressed. The Issue of limitation was/is raised on appeal for the 1st time. Naturally and logically the Trial Court could not consider what was not presented before the Court for determination.

37. Be that as it may, this Court has no advantage of the proceedings that culminated with leave granted to file suit before it. However, the Record of Appeal contains correspondence between the Appellant and Respondent through respective advocates/representatives.

38. The Record of Appeal contains correspondence between the Appellant & Respondent between 2006-2007-2008 (Pg 13-14,20,21,22,23 of the Record) when the Appellant was served with the Statutory Notice by the Respondent dated 18/9/2008 ( Pg 19 of the Record) From these documents it is plausible the Respondent waited for response from the Appellant on the way forward in the ongoing negotiations before filing suit. It is also plausible by the time it was clear there was no agreement on negotiations from the long silence the only avenue was to file suit by which time the statutory period expired and legally sought leave to file suit out of time.

39. The Respondent waiting for response from the Appellant on the outcome of ongoing negotiation was a material fact to the cause of action; as presented by Section 27 of Limitation of Actions Act in that the negotiations were fruitful there would have been no need to file suit and vice versa.

40. The application for leave for enlargement of time and/or extension of time is envisaged under order 50 rule 6 & 7 of the Civil Procedure Rules, 2010. Therefore, in the circumstances CMCC 922 of 2008 was legally and properly filed with leave of Court.

41. The Appellant took issue with the fact that the Trial Court failed to appreciate that the Defendant’s statement of Défense raised weighty triable issues that could only be resolved at a full hearing and not at an interlocutory stage.

42. This Court considered various authorities on striking out of pleadings (Plaint/Defense) and entry of summary judgment as follows;The case of DT Dobie & Company (Kenya ) Ltd v Muchina [1982] eKLR espoused principle where Madan, JA (as he then was) adopted the findings of Sellers, LJ in Wanlock v Moloney (1965) 1 WLR 1238 where the learned Judge had this to say, while setting out principles to be considered by a court in striking out a pleading:“this summary jurisdiction of the court was never intended to be exercised by a minute and a protracted examination of documents and the facts of the case in order to see whether the Plaintiff really has a cause of action. To do that is to usurp the position of the trial judge and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power”

43. Further and in the same case, Danckerts, LJ detailed:“the power to strike out any pleading or any part of a pleading under this rule is not mandatory; but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending pleading”

44. Magunga General Stores v Pepco Distributors Ltd [1986-1989] EA 334, The Court held;“A mere denial is not a sufficient Defence and a Defendant has to show either by Affidavit, oral evidence or otherwise that there is a good Defence.”

45. Raghbir Singh Chatte v National Bank of Kenya Ltd [1996] eKLR referred to Thorn v Holdsworth (1876) 3 CH 637 at 640 where it was held;“When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with diverse circumstances, it shall not be sufficient to deny it as alleged along these circumstances, but a fair and substantial answer must be given.

46. In Kenya Commercial Bank v Suntra Investment Bank Ltd [2015] eKLR it was held;“I have looked at the Defence and I have carefully considered all the averments therein. It is in plain eye sight that it is an assembly of mere denials. The Defendant has attempted to explain some of the averments through its submissions, the defence remains a complete demurer; I do not see any hope of injecting life into it even through amendment. Looking at the Defence and the generalized denials, it is a mere sham. It is a perfect candidate for striking out

47. Civil Appeal No 217 of 2015, Kivanga Estates Ltd v National Bank Ltd where the Court of Appeal held that,“It is not for nothing that the jurisdiction of the court to strike out pleadings has been described variously as draconian, drastic, discretionary, a guillotine process, summary and an order of last resort. It is a powerful jurisdiction, capable of bringing a suit to an end before it has even been heard on merit, yet a party to civil litigation is not to be deprived lightly of his right to have his suit determined in a full trial. The rules of natural justice require that the court must not drive away any litigant from the seat of justice, without a hearing, however weak his or her case may be. The flip side is that it is also unfair to drag a person to the seat of justice when the case brought against him is clearly a non-starter. The exercise of the power to strike out pleadings must balance these two rival considerations”.

48. The jurisdiction of the Court of striking out Plaint or Defense preempting hearing and determination of the dispute on merits is one that should be used sparingly and plain and obvious cases especially in the clearest of cases, such that the Plaint/Defense sought to be struck off meets the requirement outlined in order 2 rule 15 of the CPR that the Defense discloses no reasonable Defense or triable issue(s) for hearing and determination of the matter.

49. The Court ought to carefully consider all the facts of the case without conducting a trial before dismissing a case or striking out the defense for not disclosing reasonable cause of action of defense, being frivolous and/or vexatious and /or meant to delay the matter and/or is an abuse of the Court process.

50. In the instant appeal, the Trial Court considered the Plaint & Defense Filed in CMCC 1452 of 2010. The Respondent in the Plaint sought a declaration that the Defendant is liable to satisfy the decree in MHC CMCC 922 of 2008.

51. According to the Respondent, the Appellant was at all material times the Insurer of the Defendant Star Transporters Ltd as shown by the Police Abstract (Pg 17 of the Record).

52. It is as a result of the fatal road traffic accident that arose on 10/8/2004 between Motor Vehicle Reg KWG 191 Isuzu Van & Reg KAD 155/ZB4151that was the subject of the primary suit CMCC 922 of 2008 between the Respondent and the Insured Star Transporters Ltd and the Respondent obtained judgment and decree. Thereafter, the Respondent filed CMCC1452 of 2010 against the Appellant, Insurer of the insured for declaration and settlement of the decree.

53. The Defendant/Appellant filed Defense dated December 17, 2010 and denied Paragraphs 4 5 of the Plaint. The Defendant deposed that it was not served with Statutory Notice, there is a copy of Statutory Notice by the Respondent dated 18/9/2008 addressed to the Defendant (Pg 19 of the Record). The Defendant denied that there was an Insurance policy and/ or was cancelled or waived and/or the insured breached both terms and warrants of the said policy and/or that the policy was not a 3rd party policy. The Defendant denied the insurance contractual relationship with the Defendant/ insured in the primary suit.

54. The Plaintiff was accused of fraud for not notifying the Defendant filing of the primary suit CMCC 922 of 2008 and that the suit was time-barred and that the Plaintiff/respondent failed to serve the statutory notice.

55. The Record of Appeal confirms service of Statutory Notice. The Record of Appeal confirms that the Defendant /Appellant was informed and aware of the primary suit arising from correspondence that informed negotiations between the parties until there was a deadlock/stalemate/silence and thereafter the primary suit was filed with leave to file out of time.

56. If there were issues regarding the insurance policy with the insured Star Transporters Ltd, a declaratory suit ought to have been filed by the Appellant between Insurer & Insured as the Insurance contract cannot involve a 3rd party, the contract binds parties and not 3rd Parties. The Respondent was/is not privy to the said insurance contract. The Appellant ought to have sought leave join the Insured Star Importers Ltd as 3rd Party to the proceedings for the Trial Court to determine the question who is liable to settle the decree from the primary suit between Insured and Insurer.

57. The issue regarding provisions of section 5 & 10 (4) of the Insurance (Motor Vehicles Third Party Risks) Act cap 405 have been settled in the following case-law;a.Kairu v Lion of Kenya Insurance Co Ltd- [1988] KLR 790 where LJ J Aluoch stated as follows;“I have considered the circumstances of this case and find the Defendant herein does not have a valid Defense to the suit. I say so because though it gave the Plaintiff necessary notice within 3 months of filing suit it never obtained declaration before judgment in that suit.”b.First Assurance Co Ltd v Florence Wavinya Mutua MHC Civil Appeal 21 of 2019, the Court relied on the case of Ogada Odongo v Phoenix EA Insurance Ltd Kisumu HCC132/2003 that held;By an insurer issuing a policy of insurance, it automatically assures the rights of 3rd parties. It simply means, the rights /obligations of the insured are automatically transferred to the insured unless it is proved otherwise. By covering 3rd Parties, rights, the insurance was in essence performing a statutory duty imposed by an Act of Parliament.

58. Section 5 & Section 10 (1) of the Act, prescribe the 3rd Party insurance cover taken by the insured from the Insurer and therefore spells out the duty of the insurer to satisfy judgments against persons insured.

59. At no point in the pleadings and proceedings in the Trial Court was the issue of repudiation of Insurance Contract was brought out save for allegation in the Defense and contrary to an official document Police Abstract that clearly indicated the Appellant was the insurer of the insured.

60. The Appellants’ appeal is pegged on section 10(4) of the Insurance (Motor Vehicle Third Party Risks) Act cap 405:“No sum shall be payable by an insurer under the foregoing provisions of this section if in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy he is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or, if he has avoided the policy on that ground, that he was entitled so to do apart from any provision contained in it: ……….”

61. The Appellant failed to produce and/or obtain a declaration prescribed by section 10(1) of the Act before the judgment/ruling. From consideration of totality of the evidence on record, the issues /grounds of appeal raised by the Appellant I find no triable issue for hearing and determination at full trial. The Defence raised mere denials that were controverted by the Police Abstract, Statutory Notice and Correspondence between the parties that informed ongoing negotiations but recruited no settlement and the primary suit was filed.

Disposition 62. This court finds no legal basis to set aside vary or allow the appeal, the trial court ruling of 3/4/2019 is upheld, the appeal dismissed with costs.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 8TH NOVEMBER, 2022 (VIRTUAL/PHYSICAL CONFERENCE).MW MUIGAIJUDGEIN THE PRESENCE OF:NZULA H/BRIEF MS WANGAI -FOR THE APPELLANT.THORONJO - FOR RESPONDENT.PATRICK/GEOFFREY - COURT ASSISTANT(S)