[2022] KEHC 206 (KLR)

Musau v Explico Insurance Company Limited (Civil Appeal 64 of 2020) [2022] KEHC 206 (KLR) (15 March 2022) (Judgment)

Neutral citation: [2022] KEHC 206 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 64 of 2020

MW Muigai, J

March 15, 2022

Between

Fredrick Kimenye Musau

Appellant

and

Explico Insurance Company Limited

Respondent

(Being an appeal from Ruling delivered on 20 th August, 2020 by Honourable Principal Magistrate Anne Nyoike in the Chief Magistrate Court at Machakos Civil Suit No. 35 of 2020)

Judgment

1. By a declaratory suit vide the Plaint dated 22nd January, 2020 and filed on 23rd January, 2020, the Plaintiff, Appellant herein sought for an order of declaration against the Defendant, Respondent herein to satisfy the decretal sum of Kshs. 918,831/- plus interest and costs of the suit awarded to the Appellant in Machakos CMCC No. 285 of 2016 on 2nd July, 2019.

2. In the Plaint dated 18th April, 2016 and filed on 28th April, 2016, the Appellant pleaded the cause of action was that on or about 18th August, 2013 at 7. 30 am along Machakos-Wote Road Peter Mwatu Kivuva alias Kivuva Peter the registered owner of motor vehicle registration number KBR 409G drove the said motor vehicle carelessly, recklessly and/or negligently that he caused and/or permitted the said motor vehicle to violently knock the Appellant. As a result the Appellant sustained serious injuries.

Defence Dated 25/02/2020 3. In opposition to the declaratory suit, the Respondent filed a Memorandum of Appearance and Statement of Defence dated 25th February, 2020 on even date. The Respondent denied that it issued an insurance cover vide policy No. P/070/052052/02/01/040 in respect of motor vehicle registration number KBR 409G. The Respondent denied the occurrence of the accident between the Appellant and the said motor vehicle. According to the Respondent, the judgement was not entered against the alleged insured.

4. According to the Respondent, the mandatory provisions of Section 10 of the Insurance (Motor Vehicle Third Party Risks) ActCap. 405 of the Laws of Kenya were not complied with as the notice of intention to sue and demand letter were not served upon it hence it is pleaded that the Appellant’s suit should be struck out.

Notice of Motion Dated 10/03/2020 5. The Appellant filed a Notice of Motion dated 10th March, 2020 on even date which was premised on Order 2 Rule 15(d) of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act seeking an order that the defence filed on 25th February, 2020 be struck out. According to the Appellant the defence was an abuse of the court process and filed out of time. The Appellant sought judgement for the declaratory suit be entered as prayed in the Plaint dated 22/01/2020.

6. The Notice of Motion was supported by the supporting affidavit of the Appellant sworn on 10th March, 2020. He averred that he was advised by his advocate that the Respondent and its insured were served with a Statutory Notice 29th April, 2016 and demand letters dated 14th November, 2020 and 29th April, 2016 respectively. Based on the advice of his advocate, he averred that a demand and notice of intention to sue both dated 31st July, 2018 were served upon the Respondent.

7. He averred that the defence is an afterthought, a sham, a delaying tactic and did not raise triable issues. According to the Appellant, based on advice from his advocate, there can never be a valid defence to a declaratory suit instituted under Cap.405 of the Laws of Kenya.

Replying Affidavit 8. By an order of the Trial Magistrate issued on 15th July, 2020, the Respondent was ordered to file a replying affidavit to the application dated 10th March, 2020 but none was filed as noted by the Trial Magistrate in her impugned ruling.

Trial Court Ruling Dated 20/08/2020 9. The Trial Magistrate was satisfied that the notices stipulated under Section 10 of Cap. 405 were duly served but held that there was no proof that the subject motor vehicle was insured by the Respondent herein at the time of the accident. According to the Trial Magistrate, the only proof tendered in court was contained in the police abstract which in her view was a triable issue to be dealt with at the trial hence the defence raised a bona fide triable issue. Consequently, the Trial Magistrate dismissed the application with orders as to costs.

Appeal Dated 26/08/2020 10. The Appellant is aggrieved by the Trial Magistrate’s dismissal of his Notice of Motion dated 10th March, 2020 since the application was unopposed. According to the Appellant, the police abstract report was prima facie evidence that the Respondent was the insurer of motor vehicle registration number KBR 409G hence not a triable issue.

11. The Appellant has urged the court to allow his appeal by setting aside and/or review the Trial Magistrate’s ruling, allow the Notice of Motion dated 10th March,2020 for being unopposed and strike out the defence dated 25th February, 2020. He prayed for the costs of the Appeal.

Appellants Submissions 12. On behalf of the Appellant, it is submitted that the Trial Magistrate ought to have allowed the Appellant’s application sine it was unopposed. According to the Appellant, the Trial Magistrate converted the defence to a replying affidavit. Reliance was placed on the case of Trust Bank Ltd vs. Mohamed Bakaribwana (2004) eKLR on the interpretation of Order 50 Rule 16(1) of the Civil Procedure Rules, 2010.

13. According to the Appellant, there was no contrary evidence from the Respondent to counter the contents of the police abstract dated 26th June, 2015 which show the insurer was Xplico Assurance Co. Ltd and the policy number is P/070/052052/13/02/040 which commenced from 10th May, 2013 and expiring on 8th February, 2013. Reliance was placed on the case of Esther Muthoni Munyiri vs. Amaco Insurance Company Ltd (2021) eKLR where the police abstract was produced in support of the Appellants claim and the court held that it was upon the Respondent to disprove that the Appellant did not hold a valid policy of insurance with it.

14. It is submitted that the Respondent did not take out proceedings within 3 months of filing Machakos CMCC No. 285/2016 under Section 10(4) of the Insurance (motor Vehicle Third Party Risk) Act Cap.405 (“the Act”) to avoid the claim. Reliance was placed on the case of JKG & Another vs. General Accident Insurance Co. Ltd (2019) eKLR.

15. According to the Appellant the Statutory was served and received by the Respondent on 10th December, 2019. The Appellant urge this court to find that there was unchallenged evidence that the Respondent was the insurer of the subject motor vehicle hence there was no triable issue.

Determination 16. I have considered the grounds of appeal and Appellant’s submissions. The Appellant has not confirmed when the Respondent was served with the Plaint and summons vide affidavit of Service.

17. Secondly, if starting period under Order 8 CPR 2010 for filing defence has expired an interlocutory judgment ought to have been entered. In the absence of these 2 issues above the Trial Court was entitled to consider the filed defence raised triable issues. If it did as in the case of James Kiyiita– that the matter ought to proceed for interparte hearing and determination on merit. Although there is a valid request and legal judgement of the Court for declaration to be granted by the Court the matter ought to be heard.

18. This being a first appellate court, it was held in Selle vs. Associated Motor Boat Co. [1968] EA 123 that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

19. It is not in dispute that judgement was entered in favour of the Appellant in Machakos CMCC No. 285 of 2016. In her judgement, the Trial Magistrate was of the view that there was no proof to the averment that the Respondent had insured the subject motor vehicle apart from the information contained in the police abstract dated 26th June,2015 hence a triable to be adjudicated upon at the trial.

20. According to the Appellant, the police abstract was sufficient to establish ownership of motor vehicle registration number KBR 409G. The Appellant asserted that there was no contrary evidence produced by the Respondent in court hence the contents of the police abstract remain unchallenged. According to the Appellant, the Trial Magistrate erred to find that the issue of ownership was a triable issue.

21. The Motion was premised on Order 2 rule 15 (1)(d) of the Civil Procedure Rules which provides as follows:“(1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—(a)it discloses no reasonable cause of action or defence in law; or(b)it is scandalous, frivolous or vexatious; or(c)it may prejudice, embarrass or delay the fair trial of the action; or(d)it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

22. Aburili J. in Transcend Media Group Limited v Independent Electoral & Boundaries Commission (IEBC) [2015] eKLRstated that a pleading is an abuse of the process where it is frivolous or vexatious or both. What is vexatious, the Learned Judge held that a matter is said to be vexatious when (i) it has no foundation; or (ii) it has no chance of succeeding; or (iii) the defence (pleading) is brought merely for purposes of annoyance; or (iv) it is brought so that the party’s pleading should have some fanciful advantage; or (v).where it can really lead to no possible good and a matter is frivolous if (i) it has no substance; or (ii) it is fanciful; or (iii) where a party is trifling with the Court; or (iv) when to put up a defence would be wasting Court’s time; or (v) when it is not capable of reasoned argument. See Bullen & Leakey and Jacobs Precedents of Pleading (12th Edn.) at 145.

23. According to the Appellant, the defence was a sham intended to delay the Appellant from enjoying the fruits of the judgement. According to Aburili J.(supra) a pleading which tends to embarrass or delay fair trial is described is a pleading which is ambiguous or unintelligible or which states immaterial matters and raises irrelevant issues which may involve expenses, trouble and delay and that which contains unnecessary or irrelevant allegations which will prejudice the fair trial of the action and lastly a pleading which is abuse of the process of the court really means in brief a pleading which is a misuse of the Court machinery or process.

24. Aburli J while placing reliance on the Court of Appeal case of DT Dobie & Company (Kenya) Ltd vs. Muchina (1982) KLR where the principles applicable in considering whether or not to strike out pleadings were enunciated, summarized the principles as follows:-a.The Court should not strike out suit if there is a cause of action with some chance of success;b.The power to strike out suit should only be used in plain and obvious cases and with extreme caution;c.The power should only be used in cases which are clear and beyond all doubt;d.the Court should not engage in a minute and protracted examination of documents and facts; ande.If a suit shows a semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward.”

25. In Patel vs. E.A Cargo Handling Services Ltd (1974) EA 75 at p.76 Duffus P. held that “a triable issue is an issue which raises a prima facie defence and which should go to trial for adjudication.”

26. According the Blacks’ Law Dictionary, 9th Edition at page 1644, a “triable issue” is deemed to mean “subject or liable to judicial examination and trial’ whilst “the trial” has been given to mean “a formal judicial examination of evidence and determination of legal claims in an adversary proceeding.”

27. The Appellant has placed reliance on the police abstract to disapprove the Trial Magistrate findings that there was no proof that the suit motor vehicle had been insured by the Respondent hence a triable issue. According to the Appellant, the police abstract show that the Respondent was the insurer of the suit motor vehicle.

28. The purpose of a police abstract was well captured in Peter Kanithi Kimunya vs. Aden Guyo Haro [2014] eKLRwhere court held that:“A police abstract is not proof of occurrence of an accident but of the fact that following an accident, the occurrence thereof was ‘reported’ at a particular police station.”

29. It follows that the purpose of a police abstract is to prove that the accident was reported and not proof of occurrence. The Respondent denied in its defence to have issued an insurance cover vide policy No. P/070/052052/02/01/040 for motor vehicle registration number KBR 409G. The policy number is indicated in the police abstract.

30. Section 10(1) of the Act provides as hereunder:(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.

31. Based on the above provision for the insurer to be liable satisfy the decretal sum, there must be a policy of insurance, the judgement must have been in respect of a liability required to be covered by a policy under paragraph (b) of section 5 and the judgement must have been obtained against a person insured by the policy.

32. In my view, the Trial Magistrate was right to find that the issue of insurance cover in respect of the suit motor vehicle was a bona fide triable issue.

Disposition 33. I find this appeal lacks merit and uphold the ruling of the Principal Magistrate’s Court at Machakos delivered on 20th August, 2020 in Machakos Chief Magistrate’s Court Civil Suit No.285 of 2016.

34. The Respondent did not file written submissions hence there will be no orders as to costs in this appeal.It is so ordered.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 15THDAY OF MARCH, 2022. M.W MUIGAIJUDGE