[2012] KEHC 617 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

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GEORGE MORARA NYANG’AU

FELISTA WAMAITHA MORARA

HEZBORN OTACHI NYANG’AU T/A

KENYA ECO CARE INNOVATIONS

DEVELOPMENT AGENCY (KECIDA)….…………..….…….PLAINTIFF

VERSUS

HERITAGE INSURANCE COMPANY LTD…….………….DEFENDANT

R U L I N G

1. By its Notice of Motion dated 29th June, 2012 brought under the provisions of Order 2 Rule 15(b), (c) and (d) of the Civil Procedure Rules, Sections 1A, 1B (1), 3A of the Civil Procedure Act, the Plaintiff seeks orders for the Statement of Defence dated 14th May, 2012 to be struck out and judgment entered in its favour as prayed for in the Plaint. The Application is premised on the grounds that the Defence is scandalous, frivolous, vexatious and an abuse of the court process, that the Defence does not raise reasonable defence to the suit, that the Defence is merely evasive, inconsistent and does not disclose a defence in law and that the Defence would prejudice, embarrass or delay the fair trial. The Application is supported by the Affidavit Hezborn Otachi Nyang’au sworn on 29th June, 2012. The Plaintiff contended that the Defendant is unlawfully withholding the Plaintiff’s motor vehicle registration number KAS 024B, that the Defendant issued the Plaintiff with a valid Certificate of Insurance Serial Number 5006154, that the allegations that the Plaintiff had failed in remitting premiums are untrue, untenable and impeachable, that the Defendant had issued the Plaintiff with an insurance policy number JP11HP0004 executed and engrossed by the Defendant, that there was a valid contract of insurance between the Defendant and the Plaintiff and that the Defendant was the sole beneficiary of monthly payment through Giro Commercial Bank Limited.

2. The Defendant in objection to the Application filed a Replying Affidavit sworn on 19th July, 2012. It was contended that the Defence raised triable issues, that the Plaintiff has failed to pay the policy excess of Kshs. 154,000/-, that Receipt number 11837 that the Plaintiff relied upon was a forgery, that the Defendant was ready to release the motor vehicle subject to the payment of the excess and that they would suffer loss if the Plaintiff’s application is allowed.

3. I have carefully considered the Application, the Affidavits, both in Support of the Application and the Defendants Replying, both the oral and written submissions by counsels, the Plaint dated 16th April, 2012, the statement of Defence dated 14th May, 2012 and the Reply to Defence dated 14th June, 2012.

4. The principles applicable in an application for striking out pleadings was settled in the case of D.T Dobie (K) Ltd –v-s Muchina (1982) 1 wherein at page 9 the court held:-

“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a Court of justice ought not to act in darkness without the full facts of the case before it.”(Emphasis mine.)

5. The Defendant in its Defence claimed that there was no contract of insurance as between themselves and the Plaintiff. They also alleged that the Plaintiff never paid any consideration as there was no valid insurance cover and that any claim made is misguided and an act of fraud conducted by the said insurance broker. In the Reply to Defence filed by the Plaintiff dated 14th June, 2012, they allege that they remitted premium payment to the duly nominated bank, Giro Commercial Bank Limited for onward transmission to the Defendant. That they also entered into insurance contract and issued with policy number JP11HP0004 through their agents Mavic Insurance Agency.

6. From the record, there is a contract of insurance signed on 22nd March 2011 and a copy of the Policy Document marked “GKF 6”. The date for the cover was for the period 31st January, 2011 to 30th January, 2012. The premium was Kshs. 166,000/- for motor vehicle registration number KAS 024B. There is also a Premium Financing Agreement dated 31st January, 2011 and marked “GFK 2” in which the bank was to transfer the premiums paid to the Defendant’s Account, copies of cheque payments to Giro Commercial Bank Ltd “GKF 3”, copy of Credit Note marked “GKF 4” and a refund transfer for Kshs. 49,214/- marked “GKF 6”. It is clear from the aforementioned documents that there was a contract of insurance entered by the Defendant and Plaintiff for which premiums of Kshs. 23, 573/- were paid monthly to the nominated bank for transmission to the Defendant’s account. The Defendant cannot therefore turn back and claim that the insured was not covered under the policy or any policy yet there is clear evidence that the same was entered. It should be remembered that the Defendant had in its Defence categorically denied the existence of any policy of insurance with the Plaintiff.

7. The Defendant alleges that there is an excess payment for Kshs. 154,000/- that the Plaintiffs have to pay in order for the insured motor vehicle to be released. The Plaintiffs allege that they had paid premiums in excess of the amount claimed and as such the Defendant had no basis for withholding the motor vehicle. They claim that since the motor vehicle premium and excess was paid together with other premium for another vehicle owned by the Plaintiffs but on other different policies, the amount of excess had been paid vide Receipt No. 11837. This receipt has been refuted by the Defendant as a forgery. The Plaintiffs have also not produced a Credit note similar to the one marked as “GKF 4” to authenticate and verify the claims made therein.

8. In the Halsburys Laws of England, 4th Edition, Volume 37 at paragraph 14the learned authors have observed that:-

‘the Defendant does not have to show a complete defence but only fair probability of a defence or that there is a real substantial issue or question to be tried or that there was dispute and facts which raise a reasonable doubt whether the Plaintiff is entitled to judgment.’

In the case of Gohil –vs- Wamai [1983] KLR 489, Chesoni Ag. J (as he was then) and in making reference to the case of Zola & Another –vs- Ralli Brothers(1969) E.A 691held inter alia;

‘…The onus is on the defendant to satisfy the court that he is entitled to leave to defend the suit and he will not be given leave to defend the suit if all he does is to merely state that he has a good defence on merit. He must go further and show that the defence is genuine or arguable or raises triable issues. He must show that he has a reasonable ground of defence to the claim.’

9. The Plaintiffs although can justifiably claim that they had a refund for Kshs. 49,214/- they fail to explain how the same relates to the claim of excess of Kshs. 154,000/- as claimed by the Defendant. The Plaintiff did not controvert the positive allegation by the Defendant that the receipt for Kshs. 193,000/- was a forgery. If the same had been denied then the court would have had a different view of the matter. Having remained unctroverted the same remains prima facie true.

10. At Clause MO22B-Excess-Own Damage and Theft Claims it is provided inter alia;

‘…if the company elects to repair or reinstate or replace the motor vehicle or any part thereof or its accessories or spare parts in accordance with paragraph 2 of Section 1 of the policy then the insured shall forthwith pay to the company any amount payable in terms of this endorsement.’

The Plaintiffs are bound by the terms of the contract to pay any amounts in excess following the repair of the insured’s motor vehicle. In this instance the Defendant claims for Kshs. 154,000/- as excess. The Plaintiffs failed to controvert the Defendant’s positive assertions.

11. With the aforegoing and guided by the principles as set out in the case of D.T Dobie Co. (Kenya) Ltd v Muchina, I find that the application is unmeritorious and the Defendant should be heard on merit. The application is therefore dismissed with costs in the cause.

DATED and DELIVERED at NAIROBI this 22nd day of November, 2012.

………………………………….

A. MABEYA

JUDGE