[2022] KEHC 12693 (KLR)

Gitau (suing as administrator and or personal representative of Agnes Mwihaki Mwangi (Deceased)) v Africa Merchant Assurance Co. Ltd (Amaco) (Civil Case 10 of 2019) [2022] KEHC 12693 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 12693 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Case 10 of 2019

RM Mwongo, J

June 14, 2022

Between

Job Mwangi Gitau (suing as administrator and or personal representative of Agnes Mwihaki Mwangi (Deceased)

Plaintiff

suing as administrator and or personal representative of Agnes Mwihaki Mwangi (Deceased)

and

Africa Merchant Assurance Co. Ltd (Amaco)

Defendant

Judgment

Background and facts of the case 1. In his plaint dated 25/9/2019, the plaintiff’s seeks a declaration that the defendant is liable to satisfy the judgment, decree and certificate of costs issued in Naivasha CMCC No 37 of 2017, plus interest; costs of the suit and any other relief the court deems fit. The judgment was for:Pain and suffering Kshs 60,000. 00Loss of expectation of life Kshs 100,000. 00Loss of Dependency Kshs 1,810,080. 00Special damages Kshs 184,130. 00Total Kshs 2,154,210. 00

2. The judgment in the lower court arises from an accident that occurred along the Naivasha Nakuru highway at Marula area, involving motor vehicle KBW 191N with trailer ZE 4756 which collided with motor vehicle KAY 876H in which the deceased was a fare paying passenger. Following the fatal accident, the driver of vehicle KBW 191N, one Abdikadir Mumin Jimale, was charged in CMCC No 17 of 2014, with two counts of causing death by dangerous driving and one count of careless driving. He was convicted and sentenced to pay a fine of KShs 100,000 each in the first two counts and KShs 40,000 in the latter count.

3. Thereafter, the Plaintiff filed CMCC No 374 of 2017 against the registered and beneficial owners and the driver of the motor vehicle KBW 191N, one Isaak Gaal Daudi and Gadano Trading Co. and Abdikadir Mumin as 1st, 2nd and 3rd Defendants, respectively. The suit invoked section 10 of the Insurance (Motor Vehicles Third Party Risks) Act Cap 405 of Laws of Kenya. The present Defendant (AMACO) duly acknowledged the suit papers by stamping them. However, none of the defendants filed a defence. The trial court, being satisfied that service had been duly effected, proceeded to a formal proof hearing, resulting in the said judgment.

4. In the present suit, the plaintiff seeks a declaration that the lower court judgment should be paid by the insurance company. The court granted a hearing for formal proof. The plaintiff’s case is essentially that despite service, the defendants failed to file any defence. In the circumstances judgment should be entered following formal proof.

5. At the formal proof hearing, the plaintiff testified that he was the husband of the deceased and administrator of her estate; that he had sued the defendant because it had not paid any amount of the decretal amount following judgment in the lower court in CMCC No 374/2017. He stated that his wife had been travelling in vehicle registration number KAY 876 H Matatu which had been involved in an accident with vehicle registration number KBW 191N; and that the trial court had awarded him damages of Kshs 2,154,210. 00; that the decretal sum had not been paid; and that under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, the insurer was obliged to make that payment.

6. The plaintiff exhibited, inter alia, the following documents: the formal proof notice, Certificate of Death of the deceased, Grant of letters of administration of the deceased, Police Abstract disclosing the insurer of the accident vehicle, letters of demand issued to the defendants in the lower court case, the statutory notice he had served on the insurer in terms of the Insurance (Motor Vehicles Third Party Risks) Act, and the judgment of the lower court.

7. The defendant, despite service of the various pleadings and notices did not file defence or any court papers or submissions.

Analysis and determination 8. There is only one issue for determination:Whether a declaration for payment should issue in terms of section 10 of the Insurance (Motor Vehicles Third Party Risks) Act applies in the circumstances of this case.

9. Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act is titled“Duty of insurer to satisfy judgments against persons insured”and provides as follows:(1) 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.(2) No sum shall be payable by an insurer under the foregoing provisions of this section—(a)In respect of any judgment, unless before or within fourteen days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings;…”

10. In his submissions in support of the claim, the plaintiff relied on the authority of Julient Waringa Wanyondu (Deceased) v Lion of Kenya Insurance Company [2017] eKLR. There, it was held in circumstances similar to those in the present case, that:“23. I note further from the documents annexed to the plaintiff’s affidavit in support of his application that a statutory notice under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act had been served on the defendant. A copy of the notice, duly stamped by the defendant in this case, shows that the notice was served on June 18, 2007. 24. That being the case, can the defendant be heard to argue that there was no valid judgment against its insured, and that it had no notice of the filing of the suit? Clearly not.25. In the case of Joseph Mwangi Gitundu v Gateway Insurance Co Ltd (supra), Gikonyo J expressed himself as follows with respect to the liability of insurers to meet third party claims against its insured:“….under section 10(1) of Cap 405 Laws of Kenya, the insurer has a statutory obligation to 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.”26. I agree with the sentiments expressed by my brother in the case above. The insurer has a statutory obligation which it can only avoid in the circumstances provided under section 10 ….”

11. In the present case, as already noted, the plaintiff availed evidence that he had carefully ensured to follow the requirements of the Act as to service of suit papers, statutory notice, that the defendant had failed to file defence, that he had obtained judgment.

12. He had further come to court in the present suit to claim under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act.

13. I am satisfied that the plaintiff’s case fits squarely into the kind of case to which the provisions of Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act apply. Accordingly, I find and hold that the defendant is obliged under the provisions of that Act “to 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” up to the statutory limit of Kenya shillings three million (Kshs 3,000,000/-) out of a decretal sum.

14. In this particular case the judgment was entered for Kshs 2,154,210/- a figure well within the above mentioned ceiling of Kshs 3,000,000/- . That sum is payable to the plaintiff.

15. The plaintiff also cited the case of Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR on the point that the defendant ought to bear costs and interest of the suit. On this, the plaintiff contends that despite serving all relevant court papers on the defendant and dutifully attending court, the defendant failed to attend to the suit.

16. Similarly, I would allow costs to the plaintiff.

17. It is so ordered

DELIVERED AT NAIVASHA ON THIS 14TH DAY OF JUNE, 2022. R MWONGOJUDGEDelivered in the presence of:1. Ms Wambui for the Plaintiff2. No representation for the Defendant3. Quinter Ogugu - Court Assistant