[2022] KEHC 3390 (KLR)

Kinyanjui (Suing as administrate of the estate of Justus Muingai Kinyangui (Deceased)) v Gitu & another (Civil Suit 7 of 2017) [2022] KEHC 3390 (KLR) (11 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3390 (KLR)

Republic of Kenya

In the High Court at Murang'a

Civil Suit 7 of 2017

J Wakiaga, J

May 11, 2022

Between

Boniface Kinyanjui

Plaintiff

Suing as administrate of the estate of Justus Muingai Kinyangui (Deceased)

and

Peter Stanlely Maina Gitu

1st Defendant

African Merchant Assurance Co Ltd

2nd Defendant

Judgment

1. By a plaint dated October 21, 2016, the plaintiff sued the Defendant for sum of ksh 608045 (six hundred and eight thousand and forty-five shillings) together with interest thereon at courts rate being the amount due as a result of the judgement delivered in CMCC NO 135 of 2014 (Kandara) delivered on June 10, 2015 in favour of the plaintiff against the defendant.

2. It was pleaded that the decretal sum was ksh 769820 plus cost of ksh 106705 of which upon execution, the 2nd defendant only paid ksh 400000 by two instalments of kshs 200000 leaving a balance thereof of ksh 608045 as at September 2016.

3. By a defence dated August 17, 2017 the defendants denied the content of the plaint and put the plaintiff to strict proof thereof save from admitting the descriptive part of the plaint and the particulars of the accident.

Hearing 4. When this matter came up for hearing before me, the plaintiff testified on oath and stated that he was the son of the deceased who filed the suit at Kandara of which the 2nd defendant paid him ksh 400000 without paying the full decretal sum leaving a balance thereof but without producing any document in support of the claim.

Submissions 5. On 21st March 28, 2022 the plaintiff filed written submissions in which it was stated that on August 17, 2015 the plaintiffs advocate wrote a letter to Mose & Mose Milimo Advocates for the defendant and a copy of the letter was also served on the 2nd defendant who did not raise any objection to the claim and that the only issue for determination was whether the 2nd defendant was liable to satisfy the balance of the decretal amount awarded to the plaintiff.

6. It was submitted that the 2nd defendant having admitted liability and paid ksh 400000 of the decretal sum as per the insurance policy, the same had by implication admitted that it was served with the appropriate statutory notice under section 10 of the Act and that prior to or within three month of the commencement of the suit had not obtained a declaration to avoid the policy.

Determination 7. The only issue for determination in this suit is whether the plaintiff proved its case against the defendant on a balance of probability notwithstanding the fact that the matter proceeded before me ex-parte. As stated herein, the plaintiff did not tender in any document in support of his claim neither d`id the same adopt his written statement and the documents attached thereto.

8. 8. The plaintiff suit as I understand it from the pleadings is a declaratory suit to compel the 2nd defendant to pay the decretal sum awarded against the 1st defendant its insured in the primary suit being Kandara CMCC NO 135 of 2014? The plaintiff under section 10 of the Insurance (motor vehicle Third Party Risk ) Act is entitled the duty of the insurance to satisfy judgement against the insured provides as follows :(1)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.(2)No sum shall be payable by an insurer under the foregoing provisions of this section—(a)In respect of any judgment, unless before or within fourteen days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceeding.

9. The only exception to the is provided in the same section was stated in the case of Joseph Mwangi GitunduvsGateway Insurance Co Ltd where the Judge had this to say “….under section 10(1) of cap 405 Laws of Kenya, the insurer has a statutory obligation to 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.” And proceeded further and stated that “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…”

10. From the documents attached to the pleadings herein, it is clear that the 2nd defendant made part payment of the decretal sum leaving a balance claimed herein and that the same had not taken steps in repudiating the policy of insurance which has not been denied and therefore find that the plaintiff has on a balance of probability proved his case and hereby enter judgement in favor of the plaintiff against the 2nd defendant for the sum of ksh 608045 plus cost and interest thereon at courts rate from the date herein.

11. In the final disposition I hereby enter judgement for the plaintiff against the 2nd defendant for:-(a)Ksh 608045(b)Interest thereon at court rates.(c)Cost of the suit.

DATED, SIGNED AND DELIVERED THIS 11th DAY OF MAY 2022J. WAKIAGAJUDGE