[2025] KEHC 4964 (KLR)

Madison General Insurance Kenya Limited v Mwenda (Civil Suit 9 of 2019) [2025] KEHC 4964 (KLR) (17 March 2025) (Judgment)

Neutral citation: [2025] KEHC 4964 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Suit 9 of 2019

GL Nzioka, J

March 17, 2025

Between

Madison General Insurance Kenya Limited

Plaintiff

and

Nathan Mwiti Mwenda

Defendant

Judgment

1. By a plaint dated 25th July 2019, the plaintiff sued the defendant seeking judgment for the following orders: -a.A declaration that it is not bound to pay/or satisfy judgment in Naivasha CMCC No. 282 of 2017 and Naivasha CMCC No. 283 of 2017 or any suit arising from the said accident and/or indemnify the defendant against any claim in respect of bodily injury to any person, damage to property or satisfy any claim whatsoever arising out of the accident which allegedly occurred on 11th November, 2016 along the Maai-Mahiu-Narok road at Gikesha Area; involving the defendant’s motor vehicle registration number KCF 515K.b.Costs of this suit.c.Interest on (b) above at court rates.

2. The plaintiff’s case is that the defendant approached it to provide an insurance policy cover for motor vehicle registration number KCF 515K. That the subject vehicle was to be used as a public service vehicle offering exclusively chauffeur-driven service.

3. That on 27th February 2016, the plaintiff issued the defendant with an insurance policy cover number NYR/704/102162/2016 for a period of one (1) year expiring on 26th February 2017.

4. That the terms of the policy were that the plaintiff would indemnify the defendant in case of an accident caused by or arising from the use of the subject vehicle exclusively as a chauffeur-driven public service vehicle.

5. Further, the defendant was required to report any accident to the plaintiff at the earliest opportunity and surrender all relevant information to enable the plaintiff to process any claims arising from such an accident.

6. The plaintiff avers that on 11th November 2016, the subject vehicle was involved in an accident at Gikesha Area along the Maai Mahiu-Narok road and was damaged. Consequently, the defendant sought to be indemnified for the loss arising therefrom.

7. That at the same time, two (2) suits, Naivasha CMCC No(s). 282 and 283 of 2017, were instituted against Executive Super Rides and Felix Alambo arising from the accident and the plaintiff served with summons.

8. However, the plaintiff returned the summons to the plaintiff’s Advocate on the ground that defendants in those suits were unknown to them. Upon return of summons, the defendant was enjoined in the suits as a defendant.

9. The plaintiff avers that it became aware of the enjoining of the defendant after being served with a hearing notice dated 14th June 2019 in respect of an application dated 28th September 2018, seeking serve the defendant by way of substituted service.

10. The plaintiff argues that under the Insurance (Motor Vehicle Third Party Risk) Act (Cap 405) Laws of Kenya the defendant is not entitled to be indemnified in relation of the two (2) suits as he breached the terms of the insurance policy being that; he failed to assign a qualified chauffer to drive the subject vehicle, that the vehicle was being used as a self-driven hire when the accident occurred and failed to ascertain the qualification of the driver and, he wilfully concealed pertinent information regarding the accident.

11. Be that as it may, despite the defendant being served with summons to enter appearance and/or file a defence, he failed to do so and as a result judgment in default of appearance was entered in favour of the plaintiff.

12. The matter was fixed for formal proof hearing, and at the hearing, the plaintiff’s case was supported by the evidence of (PW1) Moses Barasa, the plaintiff’s legal officer who adopted his witness statement filed on 13th July 2022 together with the documents filed on 26th July 2019.

13. The plaintiff’s case was further supported by (PW2) Alex Muteti, a director and principal officer of Uptown Loss Assessors (K) Ltd who produced an investigation report dated 3rd March 2017 and filed on the 26th July 2019.

14. At the close of the hearing, the plaintiff filed written submissions dated 13th May 2024 and cited the provision section 10 (4) of the Insurance (Motor Vehicle Third Party Risks) Act which states as follows: -“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:”

15. It is the plaintiff’s submissions that it complied with the afore provisions in that the present suit was lodged within three (3) months of service of summons in the primary suits.

16. That it has proved the defendant breached the condition of the insurance contract and therefore the plaintiff is entitled to repudiate the same. Further as per the insurance policy, the use of the subject vehicle was limited to the business of PSV chauffeur-driven. However, when the accident occurred, the subject vehicle was on a self-drive hire basis, as captured in the report from Uptown Loss Assessors.

17. The plaintiff relied on the case of The Great Insurance Company of India vs Lilian Evelyn Cross and Another [1966] EA 90 where the Court of Appeal stated that the Insurance (Motor Vehicles Third Party Risks) Act (Cap 405) Laws of Kenya is taken from British legislation and in ascertaining construction of certain provisions therein, precedent from Britain be examined and held that an insurer is not liable to cover third party injured in an accident if the motor vehicle was being used in a manner not covered by the policy at the time.

18. The plaintiff further relied on the case of Paul Mutsya vs Jubilee Insurance Company of Kenya Limited [2018] eKLR and Monarch Insurance Company Limited vs Joseph Njenga Maina [2021] eKLR where the High Court held that the term in the policy on the use of a vehicle is a contractual condition and any contrary usage entitles the insurance company not to indemnify the insured and/or satisfy claims of bodily injuries sustained by passengers who were in the insured’s motor vehicle at the time of the accident.

19. The plaintiff further submitted that the investigator established that the driver in control of the subject vehicle at the time of the accident was not qualified to drive and/or be in control of a chauffeur-driven vehicle.

20. That the plaintiff has proved on a balance of probability that the defendant breached the insurance contract and therefore judgment be entered as prayed.

21. The defendant did not file any submissions.

22. At the conclusion of the case, I note that the plaintiff has produced a copy of the insurance policy document executed by the parties herein. It indicates that the motor vehicle was to be used as a PSV and chauffer driven. The investigation report by Uptown Loss Assessors (K) Limited confirms that, at the time of the accident the driver of the motor vehicle was one Vincent Mayaka Mukolwe, who was not an employee of the defendant and neither did he receive authority from the defendant to drive the vehicle. That he had hired the vehicle from Brothers Tours services, where the defendant had leased it.

23. In addition, it is revealed in the report that, the said driver was not qualified to drive a class “A” motor vehicle and the motor vehicle herein being a “PSV chauffer driven vehicle” it should have been driven by a person in possession of a class “A” licence.

24. The subject report further indicates that the said driver, Vincent Mayaka Mukolwe, who was driving the vehicle declined to meet the investigators but confirmed on phone that, he was not an employee of the defendant and that, he had hired the vehicle. Notably, again the court has not had the benefit of the evidence of Felix Ooro whom the insured had leased the vehicle to.

25. Similarly, the defendant having failed to defend the suit, the evidence adduced by the plaintiff is not controverted and/or rebutted and the court finds that in the given circumstance the plaintiff has proved its case on the required standard.

26. The upshot is that I enter judgment in favour of the plaintiff as against the defendant as prayed for. However, taking into account the nature of the claim, wherein the plaintiff is seeking to be released from any liability on any claims against it in relation to the accident herein and the fact that, the defendant did not defend the suit, I find that, though costs follow the event, this matter is appropriate to order that each party, meet its own costs.

27. It is so ordered

DATED, DELIVERED AND SIGNED THIS 17TH DAY OF MARCH 2025GRACE L. NZIOKAJUDGEIn the presence ofMr. Karanja for the plaintiffN/A for the defendantMs Hannah court assistant