[2000] KEHC 374 (KLR)
The court found that the defendant, having participated in the lower court proceedings and consented to judgment in favour of the plaintiff, could not now deny its status as insurer. The only ground of defence—that the defendant was not the insurer—was inconsistent with the consent judgment and did not raise any...
Source-derived case information.
- Citation
- [2000] KEHC 374 (KLR)
- Parties
- Plaintiff: Mburu Gatumu; Defendant: Stallion Insurance Co., Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1367 of 1999
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence and Enter Judgment
- Outcome
- application allowed; defence struck out; judgment entered for plaintiff
- Judges
- JL Osiemo
- Legal Topics
- Striking Out Defence, Third Party Risks, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mburu Gatumu
Plaintiff
Stallion Insurance Co., Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence and Enter Judgment
Legal Issues
- 1 Whether the defendant's statement of defence should be struck out as scandalous, frivolous, and vexatious.
- 2 Whether the insurer is obligated under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act to satisfy the judgment obtained by the plaintiff against the insured.
Ratio Decidendi
The court found that the defendant, having participated in the lower court proceedings and consented to judgment in favour of the plaintiff, could not now deny its status as insurer. The only ground of defence—that the defendant was not the insurer—was inconsistent with the consent judgment and did not raise any arguable issue. Accordingly, the defence was struck out as frivolous and vexatious, and judgment was entered for the plaintiff as prayed, pursuant to the insurer's statutory obligation under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act.
Court Disposition
application allowed; defence struck out; judgment entered for plaintiff
Orders
- The defence filed on 26th July, 1999 is struck out.
- Judgment is entered for the plaintiff as prayed in the plaint filed on 7th July, 1999.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBIH.C.C.CIVIL CASE NO.1367 OF 1999MBURU GATUMU ……………………………..……… PLAINTIFFVERSUS
STALLION INSURANCE CO., LTD ……..…………. DEFENDANT
R U L I N G
The defendant was the insurer of Motor Vehicles registration No.KZU 552 which was involved in an accident in which one GIBSON MUITI MBURU now deceased was travelling.
The applicant who is the personal Representative of the Estate of the deceased file a suit against the insured one JEDIDAH NDEGWA being MILLIMANI P.M.C.C. NO.5932 of 1997. The defendant engaged a lawyer who filed a defence but later after negotiations Judgment was entered by consent for Shs.90,952/= all inclusive.
The Plaintiff filed this suit in the High court for orders to compel the defendant, the insurer to satisfy the judgment under the Provisions of the Insurance (Motor Vehicles Third Party Risks) Act Cap 504 Laws of Kenya.
The defendant filed a defence and by this application the Plaintiff seeks orders to have the said statement of defence filed by the defendant herein struck out for being scandals, frivolous and vexatious and Judgment be entered for the Plaintiff as prayed.
Under the Provisions of section 10 Cap 405 Insurance (Motor Vehicles Third Party Risks) Act, the Insurer has a duty to satisfy Judgments against persons injured.
The only grounds for opposing this suit is that the defendant was not the Insurer for the accident motor vehicle. But having recorded a consent Judgment in MILIMANI P.M. C.C. NO.5932 OF 1997, the defence herein does not raise any arguable issue.
For the above reasons this application succeeds, and the defence filed herein on 26th July, 1999 is struck out ant Judgment is entered for the Plaintiff as prayed in his plaint filed herein on 7th July, 1999.
The Plaintiff is also entitled to the costs of this suit.
Dated and delivered at Nairobi this 21st day of September, 2000
J.L.A. OSIEMO
JUDGE