[2023] KEHC 24709 (KLR)

Kenya Orient Insurance Limited v Ondiek & another (Civil Appeal 623 of 2019) [2023] KEHC 24709 (KLR) (Civ) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24709 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 623 of 2019

AN Ongeri, J

November 3, 2023

Between

Kenya Orient Insurance Limited

Appellant

and

Millicent Awuor Ondiek

1st Respondent

Abubakar Salim Abubakar

2nd Respondent

(Being an appeal from the judgment and decree of Hon. Obura (SPM) in Milimani CMCC no. 6734 of 2013 delivered on 8/10/2019)

Judgment

1. The court delivered a judgment on 17/3/2023 in HCCA no. 642 of 2019 which was consolidated with HCCA no. 623 of 2019 and inadvertently did not make a determination in HCCCA no. 623 of 2019.

2. The two appeal arose from Milimani CMCC no. 6734 of 2013 where the trial court delivered a judgment on 8/10/2019 in the following terms;“…I enter judgment for the plaintiff as against the 1st Defenadant in terms of prayers (a), (b), (c) and (d) of the amended plaint dated 13th December 2017. The suit against the 2nd Defendant is hereby dismissed”

3. The undisputed facts were that the motor vehicle registration no. KBB 303G was insured by KEnya Orient Insurance Limited, the appellant in HCCA 623 of 2019.

4. The appellant in HCCA no. 623 OF 2019 filed this appeal on the grounds that the statutory notice was not served upon the Appellant in compliance with the requirements of Section 10 (2) (a) of CAP 405 Laws of Kenya.

5. Further, that the trial court did not consider issues raised in the Appellant’s statement of defence and written submissions and also failed to consider that no liability would attach since no judgment was obtained against the Appellant’s insured.

6. The parties filed submissions in respect of HCCA 623 of 2019 as follows;i.The insurance company (Appellant) submitted that there could be no liability against the Appellant since there was no judgement against the appellant’s insured.ii.The appellant relied on section 10(1) of the Insurance (motor Vehicles Third Party Risks) Act Cap 405 Laws of Kenya.iii.The appellant further submitted that in the primary suit, it was one BADIO HARIBAI that was sued and not ABUBAKAR SALIM who was the appellant’s insured.iv.The appellant further submitted parties are bound by their pleadings and further that any evidence which is at variance with the pleadings must be rejected.v.The appellant also submitted that the trial court did not address the pertinent issue on whether the appellant had insured the judgement debtor and further that the trial court rightly struck out the 2nd respondent.

7. The issues for determination in this appeal arei.Whether the appellant is bound to pay the decretal sum since there was no judgment against the Appellant’s insured in the primary suit.ii.Whether the trial court failed to consider the appellant’s submission and issues canvassed.

8. The appellant submitted that the requisite statutory notice was not served upon them in accordance with Section 10 (2) of Cap 405 Laws of Kenya which states as follows;“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.”

9. The respondents on their part submitted that the appellant served the statutory notice on 23/2/2016 and receipt was acknowledged.

10. Upon perusal of the record, the said notice is displayed on page 6 of the record of appeal.

11. The Court stated as follows in the case of Laichard Shah & Another Vs Kenindia Insurance Company Ltd [2005] eKLR;“The insurance company according to law are never enjoined as a party in a tort suit. This is because the cause of action against an insurance company arises after liability and quantum has been determined by a court of law. All the party suing requires to do before trial is to issue a statutory notice to the insurance company to notify them that a suit will be filed against their insured where the tort case is finalized and there are no pending appeals, review application and any issues, the insurance company on behalf of its insured would be obliged to pay. If it fails to do so, the plaintiffs are to file a declaratory suit in the High court seeking for the court to pronounce that they are owed the award”.

12. I find that the statutory notice was served as required and the Appellant is duty bound to settle the decretal sum.

13. On the issue as to whether the trial court failed to consider the appellant’s evidence and submission and decided the case against the weight of evidence, again I find that the record of appeal is clear that the motor vehicle KBB 303G was insured by the appellant and that the motor vehicle was being driven by the authorized driver of the insured of the appellant.

14. I find that the appeal herein lacks in merit and I dismiss it.

15. This court having found in HCCCA No.642 of 2019 that the suit against the 2nd respondent was wrongfully dismissed since there was interlocutory judgment against the 2nd respondent, the order dismissing the suit against the 2nd defendant is set aside and substituted with the following judgment;i.That judgment be and is hereby entered in favorMillicent Awuor Ondiek against Kenya Orient Insurance Limited andAbubakar Salim Abubakar .ii.That the costs of the primary suit are granted toMillicent Awuor Ondiek.iii.That each party to bear its own costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2023. A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the 1st Respondent…………………………….for the 2nd Respondent