[1998] KEHC 216 (KLR)
The court found that the defendant's assertion that the motor vehicle was not insured to carry passengers but only for commercial purposes constitutes a triable issue. The absence of the insurance policy copy notwithstanding, this issue is material to the determination of liability. As such, the defence cannot be...
Source-derived case information.
- Citation
- [1998] KEHC 216 (KLR)
- Parties
- Plaintiff: Mbaika Makau Kalima and another; Defendant: Stallion Insurance Company Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2702 of 1997
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence
- Outcome
- application dismissed with costs
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Striking Out of Pleadings, Summary Judgment, Insurance Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbaika Makau Kalima and another
Plaintiff
Stallion Insurance Company Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence
Legal Issues
- 1 Whether the defence filed by the defendant discloses any triable issue warranting a full hearing.
- 2 Whether the defence should be struck out under Order 6 Rule 13 (1) (c) & (d) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the defendant's assertion that the motor vehicle was not insured to carry passengers but only for commercial purposes constitutes a triable issue. The absence of the insurance policy copy notwithstanding, this issue is material to the determination of liability. As such, the defence cannot be struck out at this stage, and the matter should proceed to trial for full ventilation of the issues. The application to strike out the defence is therefore dismissed with costs to the defendant.
Court Disposition
application dismissed with costs
Orders
- The application to strike out the defence is dismissed with costs to the defendant.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO 2702 OF 1997
MBAIKA MAKAU KALIMA
AND ANOTHER.....................................................................PLAINTIFF
-versus-
STALLION INSURANCE COMPANY LTD..................................................................DEFENDANT
R U L I N G
This is an application to struck out the defence filed against the plaintiff’s claim. The application is made under Order 6 Rule 13 (sub-rule (1) (c) & (d) of the Civil Procedure Rules of section 3A of the Civil Procedure Act. This is supported by an affidavit swon by Mbaika Makau which is annexed to the application.
The application is opposed and the defendant has filed grounds of opposition and a replying affidavit. The plaintiff obtained judgment against the party which had insured the defendant herein. That party did not satisfy the judgment. There followed a suit against the present defenda nt which insured the said party. They now seek the declaration that the defendant is liable to satisfy the decree against the defendants insured. The defendant has filed a defence and said among other things that, the motor vehicle which was involved in the accident was not insured to carry passengers but was covered for commercial purposes only.
It is true that the copy of the Policy has not been annexed to this application by the defendant but clearly that is a triable issue which if upheld in favour of the defendant, the orders sought can not be granted.
In the circumstances I find that the application fails and is accordingly dismissed with costs.
Dated and delivered at Nairobi this 21st day of May, 1998.
A. MBOGHOLI MSAGHA
JUDGE