[2022] KEHC 15401 (KLR)

Mwendwa v Kenya Orient Insurance Co Ltd (Civil Appeal E024'A' of 2021) [2022] KEHC 15401 (KLR) (15 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15401 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal E024'A' of 2021

RK Limo, J

November 15, 2022

Between

Nicholas Musyoki Mwendwa

Appellant

and

Kenya Orient Insurance Co Ltd

Respondent

(Ruling and Order of Principal Magistrate Hon M Onkoba delivered on 31st March 2021 in Civil Case No 24 of 2020 at the Principal Magistrate’s Court in Mwingi.)

Judgment

1. This is an Appeal that arose from the Ruling of Principal Magistrate Hon M Onkoba delivered on March 31, 2021 in Civil Case No 24 of 2020 at the Principal Magistrate’s Court in Mwingi.

2. The cause of action arose from a traffic road accident which occurred on December 27, 2016 along Mwingi-Garissa road involving a motor vehicle registration KBP 860U and motor cycle registration number KMCR008K. The Appellant avers that he was lawfully riding the said motor cycle when the accident occurred. The Appellant sued the Respondent’s insured in Mwingi, CMCC151 of 2017 for general damages, special damages incurred as a result of a traffic accident and was awarded a sum totalling to Kshs 5,580,477/- together with costs and interest on June 12, 2019.

3. The Appellant then sued the Respondent herein in CMCC No 24 of 2020 on the grounds that prior to instituting Civil Suit No 151 of 2017 against the Respondent’s insured, the Appellant had served the Respondent with a statutory notice as required by Section 10 of the Insurance (Third Party Motor Vehicle Risks) Act. The Appellant’s claim was that the Respondent being the insurer of the accident vehicle was obligated to pay the decretal sum and interest in the aforementioned suit to the extent of Kshs 3,000,000/-.

4. The Respondent declined to satisfy the decree and filed a Statement of Defence dated June 2, 2020. Consequently, the Appellant filed an Application dated November 23, 2020 seeking to have the Respondent’s defence struck out on grounds of being a sham and only intended to cause delay.

5. The trial court heard the application and found no merit in it and dismissed it vide its ruling dated March 31, 2021. The trial court found that service of Statutory Notice had been disputed and that the same needed further ventilation in a full trial.

6. The appellant felt aggrieved and filed this appeal raising the following grounds namely:a.The learned Magistrate erred in law and fact when he decided that the Respondent’s Replying Affidavit sworn on December 10, 2020 by Jane Mbau and the Defence dated June 2, 2020 raise triable issues.b.The learned Magistrate erred in law and fact in finding that the Appellant did not serve the Statutory Notice as required by the Insurance (Motor Vehicles Third Party Risks) Act, Chapter 405 of the Laws of Kenya.c.The learned trial Magistrate erred as he improperly exercised his discretion.d.The Learned magistrate erred in law when he failed to strike out the defendant’s defence.

7. The Appellant submits that the trial court’s decision was erroneous and contradictory because the court found that the Respondent had indeed been served before the primary suit was filed but at the same time also concluded that parties needed to go to full trial.

8. He submits that the Statutory Notice was served on September 26, 2017 and that being the only issue that was raised by the Respondent, there is no need for parties to go through a full trial on the issue of service which has already been determined.

9. The Appellant has supported his submissions with decision of Mercy Nduta Mwangi t/a Mwangi Keng’ara & Co Advocates vs Invesco Assurance Company Limited(2019) eKLR where the court held that striking out of pleadings is warranted in order to prevent vexatious litigation.

10. The Respondent opposes the appeal and submit that it was only served by the Appellant with the Notice of intention to sue 3 years after commencement of the suit on September 26, 2020 contrary to the provisions of Section 10(2) of the Insurance (Motor Vehicles Third Party Risks) Act.

11. The Respondent company submits that it has a right to be heard and defend the declaratory suit as it has a triable issue in its defence. He has relied on the case of Madison Insurance Company Limited vs Augustine Kamanda Gitau (2020) eKLR In support of that contention. It contends, that a court should exercise its discretion of summarily dismissal only where it appears that a suit is so hopeless and discloses no reasonable cause of action.

12. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and make own conclusion on the issues at hand. In Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..."

13. The issue for determination revolves around the question of whether the trial court erred in dismissing the Appellant’s application which sought to have the Respondent’s defence struck out.

14. The power of the court to strike out pleadings is donated by Order 2 Rule 15 of the Civil Procedures Rules which provides; -"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; orb.it is scandalous, frivolous or vexatious; orc.it may prejudice, embarrass or delay the fair trial of the action; ord.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.”

15. The discretion to proceed through summary procedure as striking out a pleading is used sparingly by courts because of the attendant consequences.The consequences include driving a party from the seat of judgement without the benefit of a full trial.

16. The celebrated Madan JA inDT Dobie and Co (Kenya) Ltd versus Muchira(1982) eKLR, made the following observations regarding striking out pleadings for disclosing no cause of action;“The power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case.”

17. The Court of Appeal in Blue Shield Insurance Company Ltd V Joseph Mboya Oguttu [2009] eKLR held;“‘‘We may add that like Madan J.A, said, the power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable.’’

18. Odunga J (as then was) in Madison Insurance Company Limited Vs Augustine Kamanda Gitau [2020] eKLR held as follows;“‘‘In the exercise of its powers under the said provision there are certain well established principles that a court of law is to adhere to. Whereas the essence of the said provisions is the striking out of an action or defence, that is a jurisdiction that must be exercised sparingly and in clear and obvious cases and unless the matter is plain and obvious, a party to civil litigation is not to be deprived of his right to have his suit tried by a proper trial. The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case or striking out a defence for not disclosing a reasonable cause of action defence for being otherwise an abuse of the process of the court.The power to strike out pleadings must be sparingly exercised and it can only be exercised in clearest of cases. If a pleading raises a triable issue even if at the end of the day, it may not succeed then the suit ought to go to trial. However, where the suit is without substance or groundless of fanciful and or is brought is instituted with some ulterior motive or for some collateral one or to gain some collateral advantage, which the law does not recognise as a legitimate use of the process, the court will not allow its process to be a forum for such ventures.’’

19. From the above authorities, what is coming clearly is that for a statement of defence to be struck out, a court must satisfy itself that it raises no triable issue.

20. In this instance, the appellant sued the Respondent for the satisfaction of the decree in Mwingi CMCC No 151 of 2017 to the extent of 3 million. The appellant contends that the Respondent was under an obligation to satisfy the decree as per Section 5(iv) of the Insurance (Third Party Motor Vehicles Risks) Act. It’s the appellant’s case that the Respondent was duly served with the Statutory Notice as required by Section 10 of the said Act.

21. In its Statement of defence, the Respondent admitted to the occurrence of the accident on December 27, 2016 but denied knowledge of particulars of how the accident took place. The Respondent also denied knowledge of the court’s judgment in CMCC 151 of 2017 despite stating that its lawyer represented the Defendant in the said suit. The Respondent also refuted the claim that it was served with Statutory Notice by the Appellant.

22. Upon filing of the Notice of Motion dated November 23, 2020 seeking to strike out the defence, the Respondent filed a response to the application vide the Affidavit of Jane Mbau where it was averred that the defence raised triable issues. The issue was that the Respondent was not served and was only served with the said notice on September 26, 2020.

23. According to the Respondent’s response to the application and its submissions, the one triable issue that ought to go to trial is the issue of service. On one hand the Appellant states that he served the Respondent on September 26, 2017 before institution of the initial proceedings while the Respondent insists that it was only served on September 26, 2020.

24. Section 10(2) of the Act provides;(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 proceedings…’’

25. This court has gone through the lower court file and from the documents annexed to the appellant’s affidavit in support of his contention that service under Section 10 of the Insurance (Motor vehicles Third Party Risks) Act had been served on the Respondent, a copy of the notice duly stamped by the Respondent shows that the said Notice was served on September 26, 2017. That being the case, the only issue that the trial court found fit to be ventilated in full trial was decimated.There was no valid argument advanced by the Respondent that it should be allowed to defend the suit on that account and the trial court fell into error by making finding in its favour. There was no triable issue at all for trial because the respondent was properly served and was aware of the existence of the suit.

26. The duty of insurer to satisfy judgments against persons insured is provided for under Section 10(1) of Cap 405 Laws of Kenya as follows;“‘‘Duty of insurer to satisfy judgments against persons insuredi.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.’’

27. This court finds that the Respondent’s defence at the trial court was only to buy time and could not see the light of the day.In the premises this court finds merit in this appeal the same is allowed. The Ruling of the trial court dated March 31, 2021 is set aside and in its place the appellant’s application dated November 23, 2020 is allowed with costs to the Appellant who will also get costs of this appeal.

DATED, SIGNED AND DELIVERED AT KITUI THIS 15TH DAY OF NOVEMBER, 2022. HON. JUSTICE R. K. LIMOJUDGE