[2022] KEHC 10410 (KLR)

Invesco Assurance Co. Limited v Shimanyula & 2 others (Civil Case E020 of 2021) [2022] KEHC 10410 (KLR) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10410 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Case E020 of 2021

AN Ongeri, J

June 17, 2022

Between

Invesco Assurance Co. Limited

Plaintiff

and

Cleophas Shimanyula

1st Respondent

Western Coss Express Limited

2nd Respondent

Shimcom Company Limited

3rd Respondent

(Being an Appeal against the Judgment and decree by Hon. G. O. Kimanga (SRM) in CMCC No.1 of 2019 delivered on 11/6/2021)

Judgment

1. The Appellant in this Appeal Ivesco Assurance Company Ltd (hereafter referred to as the Appellant) filed CMCC No.1 of 2019 against Cleophas Shimanula & 2 others (hereafter referred to as the Respondents) seeking the following orders:-(i)That the Court be pleased to issue a declaration that at the material date of the alleged Accident that happened on 10/10/2018, Motor Vehicle Reg. No.KBX 092J was inter alia in an un-roadworthy state and was in breach of various Traffic Rules.(ii)That the Court be pleased to issue a declaration that fundamental provisions of the Insurance Policy No.075/0804/1/042608/2016/11T.P. were breached thereby automatically discharging the applicant from liability and an entitlement to the Appellant to avoid Insurance Liability forthwith.(iii)That the Court be pleased to compel the Respondents jointly and severally to satisfy all claims arising out of the alleged Accident which occurred on 10/10/2018 involving Motor Vehicle Reg. No. KBX 092J.(iv)That the proceedings and the suit are defective and ought to be forthwith struck out with costs.

2. Upon hearing the evidence of the appellant’s witness, the Trial Court found that the Motor Vehicle Reg. No. KBX 092J was validly insured by the appellant at the time of the Accident. The Trial Court also found that the Policy terms did not prohibit the vehicle from travelling at night. No road service license was produced to prove the caveat on night travels.

3. The Trial Court also found that failure to have a speed governor did not cause the accident since the Police Abstract did not indicate that the accident was caused by over speeding. The cause of the Accident was poor road design at the point the accident occurred.

4. The Trial Court dismissed the Appellant’s case and the appellant has now filed this appeal against the Judgment delivered on 11/6/2021 on the following grounds:-(i)The learned magistrate erred in fact and in law by indicating that the matter was defended when in fact it was not(ii)The learned magistrate erred in fact and in law by relying on a defence in which the defendants never prosecuted during trial despite proper service, therefore plaintiff’s witness testimony and evidence was uncontroverted.(iii)The learned magistrate erred in fact and in law by failing to consider the doctrine of uberrimae fides, which required the defendants to disclose all material facts before being granted insurance by the Appellant.(iv)The learned magistrate erred in fact and law by failing to consider authorities of superior courts filed before the court.(v)The learned magistrate erred in fact and in law by indicating that the investigation report dated 15th October, 2018 was prepared by a biased third party.(vi)The learned magistrate erred in law and fact by failing to consider evidence in the National Transport Safety Authority (NTSA) report dated 15/10/2018. (vii)The learned magistrate misdirected himself by failing to consider and comprehend various sections of the policy document.(viii)The honorable magistrate erred in law and in fact by stating that the bus did not carry excess passengers yet the bus was a sixty four yet evidence confirmed that there were more people in the bus.(ix)The honorable magistrate erred in law and in fact by failing by the filing to take into account submissions of the Counsel for the Appellant and authorities relied upon by the Appellant.

5. The parties filed written submissions in the Appeal which I have duly considered.

6. The Appellant submitted that the investigation report was selectively considered thus harming their case. The Appellant submitted that their testimony and evidence before the trial court was uncontroverted.

7. The Appellant submitted that the insurance policy document is a critical document that bind the insurer and insured and is usually relied on to prove whether or not an insurance claim is valid.

8. The Appellant submitted that the Respondents were in breach of some of the conditions of the policy firstly, that the insurer would not be liable if an accident occurred when the vehicle was carrying more than its authorized capacity and secondly, liability could only arise if the insured ensured that the vehicle was in roadworthy conditions at all times.

9. The Respondent submitted that the trial court considered the investigation report and made its own findings and conclusion. The trial court also considered the police abstract that was produced by the plaintiffs.

10. The Respondents submitted that the suit was defended and that it was immaterial that the respondents did not call evidence in defence, they were not bound to call witnesses. Further to this, they did not admit the claim and they filed a defence denying the claim.

11. The Respondents submitted that the trial court considered the policy document and the plaintiffs did not tender evidence in support of the allegations that the respondents were in breach of the terms of the policy document.

12. This being a first Appeal, the duty of this Court is to re-evaluate the evidence adduced before the Trial Court and to arrive at my own conclusion whether to support the findings of the Trial Court while bearing in mind that the Trial Court had the advantages of seeing the witnesses.

13. The issues for determination in this Appeal are as follows:-(i)Whether the Appellant proved its case to the required standard.(ii)Whether the appeal should be allowed.

14. On the issue as to whether the Appellant proved its case to the required standard, the Appellant submitted that the case was not defended and therefore the Appellant’s evidence was uncontroverted. The Appellant further submitted that the Trial Court failed to consider the doctrine of uberrimae fides which requires all disclosure of material facts.

15. However, I find that the Trial Court scrutinized the Insurance Policy and did not find that the Respondents were in violation of the terms of Policy No.075/0804/1/042608/2016/11 T.P.

16. The Appellants admitted that there was a valid cover and the Trial Court noted that failure to fit the Motor Vehicle with a speed governor was not the cause of the accident.

17. The Respondents filed a defence which the Trial Court considered and it is therefore not true that the suit was not defended. Although the Respondents did not call a witness, they filed their defence which the Trial Court relied on.

18. I find that the Plaintiff did not prove their case to the required standard which is on a balance of probabilities in Civil Cases.

19. It is the duty of the appellant to find out whether the vehicles they cover are un-roadworthy or not. In the current case, I find that the Trial court was right in dismissing the Appellant’s case.

20. I find that the appeal lacks in merit and I accordingly dismiss it with costs to the Respondents.

DELIVERED, SIGNED AND DATED AT KERICHO THIS 17TH DAY OF JUNE 2022. A. N. ONGERIJUDGE