[2005] KEHC 2189 (KLR)
The court found that the plaintiff's suit is based on a contract, namely the COMESA Treaty and its Protocol on Third Party Motor Vehicle Insurance Scheme, which is governed by Kenyan law. The defendant, being a company incorporated in Uganda, falls outside the jurisdiction of the Kenyan courts for purposes of...
Source-derived case information.
- Citation
- [2005] KEHC 2189 (KLR)
- Parties
- Plaintiff: Joseph Murigi; Defendant: National Insurance Corporation (Uganda)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 71 of 2005
- Procedural Posture
- Civil Case / Application for Leave to Serve Summons Outside Jurisdiction
- Outcome
- application granted
- Legal Topics
- Service Out of Jurisdiction, Cross Border Contracts, Insurance Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Murigi
Plaintiff
National Insurance Corporation (Uganda)
Defendant
Procedural Posture
Civil Case / Application for Leave to Serve Summons Outside Jurisdiction
Legal Issues
- 1 Whether the court should grant leave to serve summons and plaint on the defendant outside the jurisdiction, specifically in Uganda.
- 2 Whether the suit is properly founded under Order V, Rule 21 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the plaintiff's suit is based on a contract, namely the COMESA Treaty and its Protocol on Third Party Motor Vehicle Insurance Scheme, which is governed by Kenyan law. The defendant, being a company incorporated in Uganda, falls outside the jurisdiction of the Kenyan courts for purposes of ordinary service. However, since the cause of action arises from a tort committed in Kenya and the contract is governed by Kenyan law, the requirements of Order V, Rule 21(e)(iii) of the Civil Procedure Rules are satisfied. The court therefore exercised its discretion to grant leave for service of summons and plaint outside the jurisdiction, specifically in Uganda.
Court Disposition
application granted
Orders
- Leave is granted to the plaintiff to serve summons to enter appearance and plaint upon the defendant outside the jurisdiction, specifically in Uganda.
- The defendant may enter appearance within twenty-one (21) days after service of summons to enter appearance.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBICOMMERCIAL DIVISION, MILIMANICIVIL CASE NO. 71 OF 2005JOSEPH MURIGI……………………………………….PLAINTIFFVERSUS
NATIONAL INSURANCE CORPORATION
(UGANDA)………………………………………………….DEFENDANT
R U L I N G
The Plaintiff seeks by chamber summons dated 4th February, 2005 leave of court to effect service of summons to enter appearance and plaint upon the Defendant outside the jurisdiction of this court, more particularly at Kamplala in the Republic of Uganda. The application is brought under Order V, Rule 21 of the Civil Procedure Rules.
I have read the supporting affidavit sworn by the Plaintiff’s advocate, Mr. George Onyango Oloo. I have also perused the plaint and also the Treaty Establishing the Common Market for Eastern and Sourthern Africa (COMESA), particularly the Protocal on Third Party Motor Vehicle Insurance Scheme(Annex II of the Treaty) which is signed by both Kenya and Uganda, among other States. It would appear that the Defendant may be liable to settle the decree in Nakuru HCCC No. 504 of 1999 under the terms of the aforesaid protocal. The Defendant is described in the plaint as a registered company incorporated in Uganda.
The suit giving rise to the aforesaid decree was founded on tort committed in Kenya. The present suit is based on a contract (the aforesaid Treaty) which, by its terms, appears to be governed by Kenyan law, and thus comes within the provisions of Order V, Rule 21 (e) (iii) of the Civil Procedure Rules.
I will therefore grant the application and grant the leave sought in prayer No. 2 thereof. The Defendant may enter appearance within twenty-one (21) days after service upon it of summons to enter appearance. Costs in the cause. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 26TH DAY OF APRIL, 2005. H.P.G. WAWERU JUDGE DELIVERED THIS……………………DAY OF APRIL, 2005.