[2017] KEHC 3987 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 302 OF 2014

KENYA ORIENT INSURANCE LIMITED...............................APPELLANT

V E R S U S

MILLICENT AWUOR ONDIEK ........................................ RESPONDENT

(Being an appeal from the judgement of the learned Chief Magistrate Hon. Mr. Obulutsa delivered on 8th July, 2014 in Milimani CMCC No. 6734 of 2013 )

JUDGEMENT

1. On 8th July 2014, Hon. Obulutsa, learned Chief Magistrate, issued an order striking out the defence of Kenya Orient Insurance Co. Ltd, the appellant herein, on the basis that the same did not raise any triable issues. The learned Chief Magistrate also proceeded to enter summary judgment in favour of Milicent Awour Ondiek, the respondent herein, vide Milimani C.M.C.C. No. 6734 of 2013. The appellant being dissatisfied, preferred this appeal and put forward the following grounds in its memorandum of appeal:

1. That the honourable magistrate erred in law and in fact in allowing the application to strike the defence and entering judgment.

2. That the honourable magistrate erred in law and in fact in failing to grant the defence an unconditional leave to defend the suit.

3. That the honourable magistrate erred in law and in fact by failing to consider and find that since no judgment was obtained against an insured of the appellant no liability attached.

4. That the honourable magistrate erred in law and in fact by failing to find that the plaintiff/respondent had not complied with Section 10(1) of Cap 405.

5. That the honourable magistrate erred in law and in fact by failing to find that a statutory notice had not been served in compliance with the requirement of Section 10(2) (a) of Cap 405.

6. That the honourable magistrate erred in law and in fact by failing to find the respondent had not established that she was a third party within the meaning of the Act (Cap 405)

7. That the honourable magistrate erred in law and in fact by failing to find that the defence raised extremely triable issues sufficient to defeat the respondent’s claim fully at trial.

8. That the honourable magistrate erred in law and in fact by failing to follow and be bound by the principles of stare decisis exposed in Yobesh Amoro –Vs- The Herial; All Ins. Co. Ltd (2007) eKLR, Blue Shield Ins. Co. Ltd –Vs- Agnes Mueni Wambua (2008) Eklr, Mary Adhiambo Onyango –vs- Jubleee Ins. Co. Ltd (2007), Mercantile Ass. Co. Ltd –vs- Kinunu Maharia (2003) eKLR.

9. That the honourable magistrate erred in law and in fact by failing to appreciate and consider the impact of the appellant’s submissions.

10. That the honourable magistrate erred in law and in fact by considering extrinsic matters and thereby arriving at a wrong decision in the matter.

2. When this appeal came up for hearing, this court gave directions to have the appeal disposed of by written submissions. Before considering the substance of the appeal, I think it is appropriate to first set out the history behind this appeal. On 13. 12. 2008, the respondent was knocked down by motor vehicle registration no. KBB 303G, while she was walking along Lenana Road. The aforesaid motor is alleged to be registered in the name of one Badio Haribai. The aforesaid motor vehicle is alleged at the time to be insured by the appellant. On 14. 7.2011, the respondent filed a compensatory suit against Badio Haribai before the chief magistrates court vide Milimani C.M.C.C No. 2564 of 2011. On 9. 1.2013, the suit was determined in favour of the respondent whereof she was awarded ksh.507,000/= for damages. The respondent issued the appellant with a notice to satisfy the decree. The respondent proceeded to file a declaratory suit when the appellant failed to settle the decree in Milimani C.M.C.C No. 6734 of 2013. The appellant filed a defence which was later on ordered struck out as alluded hereinabove.

3. Though the appellant put forward a total of ten grounds of appeal, I am of the view that the main issue in contention is whether or not the defence put forward by the appellant before the trial court raised triable issues. The issue was substantively argued before the trial court vide the motion dated 18th December 2013. It is the submission of the appellant that its defence raised the following triable issues.

4. First, whether or not the defendant (appellant) was the insurer of the Badio Haribai

5. Secondly, whether or not the judgment sought to be executed was against the appellant’s insured.

6. Thirdly, whether or not the respondent was a person for whom a compulsory insurance cover is mandatory under Section 5 of Cap 405 Laws of Kenya. It is the appellant’s submission that the respondent failed to establish that he was a person for whom a compulsory insurance is mandatory under Section 5 of Cap 405.

7. The appellant further pointed out that it had denied that it had insured motor vehicle registration no. KBB 303G and put the respondent to strict proof which issue was not determined since the defence was struck out.

8. The respondent on the other hand is of the contrary view that the appellant’s defence did not raise any triable issueworth being heard. It was pointed out that the trial court took cognizance of the fact that the insurance policy showed that the owner of the car, had been insured by the appellant from 25. 3.2008 to 24. 3.2009, therefore the accident of the motor vehicle occurred before the ownership of it took place. The respondent’s motor vehicle registration no. KBB 303G was insured by the appellant therefore there was no competent defence. The respondent has further argued that the Section 10 of Cap 405 is not applicable and was even served with a statutory notice.

9. I have also re-evaluated the arguments made before the trial court. The recorded proceedings shows that the issues argued before this court were equally raised and argued before the trial court. The trial magistrate pointed out that the insured at the time of the accident was one Abubakar Salim Abdi and that the accident occurred when the defendant (Badio Haribai) was still the insured of the motor vehicle. The learned Chief Magistrate did not address his mind to the question as to whether or not the appellant was the insurer of Badio Haribai. The proposal form indicated that the person who applied for the insurance cover was one Abubakar Salim Abdi. Judgment was entered against Badio Haribai and not Abubakar Salim Abdi. The police abstract form does not specify the name of the owner of motor vehicle registration no. KBB 303G. The question as to whether or not the appellant was bound to settle the decree against Badio Haribai was not answered. Those issues could only be answered via a substantive trial. In my humble view I think the learned Chief Magistrate fell into error - hence this appeal has merit.

10. In the end, the appeal is allowed. Consequently, the order striking out the appellant’s defence and that entering summary judgment against the appellant are set aside and are substituted with an order dismissing the motion dated 18. 12. 2013. The appellant is given unconditional leave to defend the suit.

11. A fair order on costs is that costs shall abide the outcome of the suit.

Dated, Signed and Delivered in open court this 20th day of July, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Appellant

..................................................... for the Respondent