[2022] KEHC 15372 (KLR)

Jubilee Insurance Company Ltd v Otewa (Suing as personal representatives of the Estate of Maritha Anyango Ogweno - Deceased) (Civil Appeal E020 of 2021) [2022] KEHC 15372 (KLR) (14 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15372 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E020 of 2021

KW Kiarie, J

November 14, 2022

Between

Jubilee Insurance Company Ltd

Appellant

and

James Ogweno Otewa

Respondent

Suing as personal representatives of the Estate of Maritha Anyango Ogweno - Deceased

(Being an Appeal from the judgment and decree in Oyugis Senior Principal Magistrate’s SPMCC No. 106 of 2019 by Hon. B.O. Omwansa–Senior Principal Magistrate)

Judgment

1. Jubilee Insurance Company Ltd, the appellant herein was the defendant in Oyugis Senior Principal Magistrate’s SPMCC No 106 of 2019. This was a suit seeking a declaration that the appellant was bound to pay the decretal amount and costs in Oyugis PMCC No 152 of 2018 which was in favour of the respondent. The judgment was delivered on February 10, 2021 in favour of the respondent.

2. The appellant was aggrieved by the said judgment and filed this appeal through the firm of LG Menezes & Company Advocates. Five grounds of appeal were raised as follows:a.That the learned trial magistrate grossly misdirected himself in treating the evidence and submissions on liability before him superficially and consequently coming to a wrong conclusion on the same.b.That the learned magistrate misdirected himself in ignoring the principles applicable and the relevant authorities cited in the written submissions presented and filed by the appellant.c.That the learned trial magistrate erred in not sufficiently taking into account all the evidence presented before him in totality and in particular the legal provisions relied on and the evidence presented on behalf of the appellant.d.That the learned trial magistrate erred in failing to address and hold that the respondent had failed to prove service of the mandatory statutory notice as required under Section 10(2) of Insurance (Motor Vehicles Third Party Risks) Act (Cap 405) Laws of Kenya hence arriving at a decision unsustainable in law.e.That the learned trial magistrate failed to apply judicially and to adequately evaluate the evidence and exhibits tendered and thereby arrived at a decision unsustainable in law.

3. The appeal was opposed by the respondent through the M/S Kuke & Company Advocates on the following grounds:a.That the appellant was served with Notice of intended suit but failed to enter appearance.b.That at the time of the complained accident the motor vehicle subject of the suit was insured by the appellant.c.That the appellant was served with the statutory Notice before the commencement of the primary suit.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle v Associated Motor Boat Co Ltd [1965] EA 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. In a declaratory suit, the issue of liability or quantum of damages does not arise. This is because the same has already been decided elsewhere and any dissatisfied party may seek redress on appeal. This therefore means that the appellant’s grounds 1 & 2 are misplaced.

6. The appellant in the declaratory suit contended that there was no valid policy in respect of motor vehicle KBV 494U. It was contended that the policy in respect of the said motor vehicle had been cancelled before the accident in issue. It was also pleaded that the statutory Notice was not issued to the appellant.

7. At the time of the hearing in the trial court, the respondent produced a copy police abstract that showed that motor vehicle KBV 494U as at the time of the accident was insured by the appellant under policy No P/KSM/ 2011/2017/ 18518. This therefore contradicted the appellant’s claim in the pleading that at the time of the complained accident the policy had been cancelled. No evidence was adduced to support the claim of cancellation.

8. Section10 (4) of the Insurance (Third Party Motor Vehicles Risks) Act cap 405. Section 10 (4) of the Actprovides as follows:(4)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:Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgment obtained in proceedings commenced before the commencement of that action, unless before or within fourteen days after the commencement of that action he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the non-disclosure or false representation on which he proposes to rely, and any person to whom notice of such action is so given shall be entitled, if he thinks fit, to be made a party thereto.

9. Section 10 of the Insurance (Third Party Motor Vehicles Risks) Act elaborates the duty of the insurer to satisfy judgments against persons insured. This obligation can be avoided as provided for under section 10 (4) of the Act. This is where the insurer has obtained a declaration that he is entitled to avoid the policy before the commencement of an action in which a judgment has been obtained or within three months of commencement of such proceedings. There is a proviso however which the insurer must satisfy in order to benefit from the declaration. The appellant herein had not obtained such a declaration and cannot therefore be heard to say that she cannot be liable to satisfy the decretal amount in in Oyugis PMCC No 152 of 2018.

10. The appellant’s pleadings are denials and pleaded in the alternative. The trial court could not place any reliance on evidence which was intended to support such pleadings. The pleadings portrayed the evidence adduced for the appellant as unreliable, rightfully so. I have no reason to make me make a finding that the statutory Notice was not served upon the appellant.

11. I therefore find that the appeal lacks merit. I accordingly dismiss it with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 14TH DAY OF NOVEMBER, 2022. KIARIE WAWERU KIARIEJUDGE