[2022] KEHC 11811 (KLR)

Omenge v Gateway Insurance Co (Civil Case 10 of 2014) [2022] KEHC 11811 (KLR) (6 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11811 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Case 10 of 2014

AN Ongeri, J

May 6, 2022

Between

Cleve A. Omenge

Plaintiff

and

Gateway Insurance Co

Defendant

Judgment

1. The Plaintiff in this case Cleve A. Omenge (hereafter referred to as the Plaintiff) has sued the Defendant Gateway Insurance Company Limited(hereafter referred to as the Defendant) seeking the following orders:-i.Special damagesii.General damagesiii.Costs and interest of the suitiv.Any other relief the court may grant fit and just to grant

2. The Plaintiff averred in his Plaint filed in Court on 21/5/2014 as follows:-That on the 17th of June 2011, the plaintiff’s motor vehicle, registration no. KAG 399A Isuzu FVR lorry, was involved in an accident along the Ikonge-Ngoina-Kericho road, where it was extensively damaged and required repairs amounting to Kshs. 1, 490, 600 which the defendant promised to undertake. It was stated that on the instructions of the defendant, the motor vehicle was towed to a garage of the defendant’s choice, however to date the repairs have not been undertaken despite several requests from the plaintiff and despite the motor vehicle being comprehensively insured by the defendant at a value of Kshs. 1, 500, 000 under policy no. 051/080/119003.

3. The Defendant filed a Defence dated the 10th of September, 2014 and averred as follows:- that they were informed on the 22nd of July, 2011 that the plaintiff’s motor vehicle was involved in an accident on the 17th of June, 2011 however the plaintiff failed to disclose the situation of the said vehicle to enable the inspection and assessment of its state, extent of damage and probable cost of repairs and further that the plaintiff failed to pay outstanding premiums until the 28th of August, 2013, which were conditions precedent to the authorization of repairs by the defendant. The defendant averred that after the plaintiff’s payment of premium, the defendant accessed the motor vehicle to be repairable at Kshs. 632, 258, which offer the plaintiff rejected.The defendant further averred that upon receiving a demand letter from the plaintiff in December, 2013, the defendant caused a second assessment to be done, and the vehicle was assessed at Kshs. 591, 890 with a pre-accident value of Kshs. 1, 300, 000, which the defendant offered to pay to the plaintiff, but the plaintiff declined the offer. The defendant averred that the plaintiff’s suit is incompetent and premature as the same was brought to court without the plaintiff first resorting to arbitration, which is a condition precedent for a court action under the policy of insurance and further that the delay in repairing the plaintiff’s vehicle was caused by the plaintiff’s own acts and omissions.

4. The parties called one witness each and the witnesses adopted their respective statements as their evidence in Chief as follows:-The plaintiff’s witness, Mr. Cleve A. Omenge testified that on the 17th of June, 2011, his motor vehicle, registration no. KAG 399A, comprehensively insured by gateway insurance company for the sum of Kshs. 1, 500, 000 was involved in an accident along Ikonge-Ngoina-Kericho road and that despite several requests to the defendant to repair the vehicle, the defendant has failed to make good his request. The witness stated that he received a call from the defendant’s manager to sign a discharge voucher for a sum of Kshs. 516, 890, which did not take into consideration towing charges of Kshs. 50,000, storage charges from the time of the accident, repair charges amounting to Kshs. 1, 490, 600 and loss of revenue from the date of the accident to date, amounting to Kshs. 12, 385, 628. 25.

5. The defendant’s witness, Ms. Joan Oburu stated that the defendant was notified of the accident on the 22nd of July, 2011 but that they were only notified on the 29th of August, 2012 that the vehicle was lying at Jeet Motors. She further stated that the plaintiff had delayed payment of his premium and the same was only paid by him on the 28th of August, 2013 and that the defendant only began processing the claim after payment of the premium. She further stated that any delay before the payment of outstanding premium was not the fault of the defendant.

6. The witness stated that upon the plaintiff paying the outstanding premium, they instructed the Automobile Association of Kenya to assess the vehicle at Jeet motors, and as per their report, the vehicle was repairable at Kshs. 632, 258 and authorization of the repairs at that cost was done on the 7th of November, 2012.

7. She further stated that on the 20th of December, 2013, the defendant got a demand letter from the plaintiff’s advocate, indicating that the vehicle still remained unattended to at the garage, despite them authorizing the repairs of the same. She stated that the defendant then appointed primedots assessors to inspect the vehicle and they reported that it was repairable at Kshs. 591, 890 and the pre-accident value assessed at 1, 300,000. She further stated that the delay in authorization of the repairs was as a result of the insured taking over two year to pay premiums.

8. The parties filed written submissions as follows:-The plaintiff submitted that the report by triple seven assessors dated the 12th of August, 2014, stated that the vehicle was a write off and therefore under the policy and contract of insurance, the insurer is under a duty to indemnify the insured by reinstating the insured’s vehicle to its pre-accident state or for any loss or accidental damage to the vehicle.

9. It was also submitted by the plaintiff that the purpose of an insurance contract is to put the insured in a position as though the damage never occurred, which principle the insurance company has violated by failing to indemnify the plaintiff for the damages to his car. It was also submitted that the plaintiff has pleaded and proved special damages being loss of revenue amounting to Kshs. 12, 385, 628. 25 and towing charges amounting to Kshs. 50,000 and the defendant should therefore be ordered to settle the claim as prayed in the plaint.

10. The defendant submitted that the plaintiff’s vehicle was not a write off as claimed, as the plaintiff had from the beginning claimed that the vehicle was repairable. It was submitted that the cost of repair was assessed by two assessors the Automobile Association and Primedots Assessors, and the defendant admitted to being liable to pay the plaintiff the repair costs as assessed by primedots assessors at Kshs. 591, 980.

11. It was further submitted that the special loss allegedly suffered by the plaintiff is consequential loss, and the onus was on the plaintiff to prove that such loss was covered by the policy of insurance, failure to which the claim for consequential loss must fail. It was also submitted that loss of user was a special damage claim that required proof. It was stated that the plaintiff only produced in court several invoices and bank statements which were not sufficient proof of loss.

12. It was also submitted that the plaintiff did not mitigate his loss, which was avoidable and also that the plaintiff did not prove that the defendant was contractually bound to pay for towing charges and the claim must therefore fail.

13. The issues for determination in this case are as follows:i.Is the Plaintiff entitled to General Damages against the Defendant?ii.Did the Plaintiff prove special damages against the Defendant?

14. On the issue of general Damages, there is evidence which is not disputed that the Plaintiff had insured his motor Vehicle (Registration KAG 399A) at a value of Kshs.1, 500,000/= vide policy No.051/080/1/119003/2007/08.

15. The Motor Vehicle was comprehensively insured and the Plaintiff was entitled to compensation upon being written off. Justice Kuloba (as he then was) in Patrick Muturi Versus Kenindia Assuarance Company Ltd (1993) eKLR, stated as follows: “The very foundation of every rule which has been promulgated, applied and acted upon by the Courts with regards to insurance law is the fundamental principle of insurance, that the contract of insurance in an insurance policy document is a contract of indemnity. It is a contract giving security from damage or loss. It is not that it ensures that no damage or loss shall occur; rather, it is an agreement by an insurer to make good a loss, to pay compensation for loss or injury which may occur within the terms of the agreement, the insured keeping his part of the bargain. It means that the assured fulfilling his undertaking under the contract, in case of a loss against which the policy has been made, shall be fully indemnified. Full indemnity means, of course, that the assured is not to be more than fully indemnified. He shall not be deprived of a full indemnity; and he will not be given more than a full indemnity.”

16. I find that the Plaintiff is entitled to full indemnity since there is no dispute that his motor vehicle was comprehensively insured.

17. On the issue of Special Damages, the law requires that the same be specifically pleaded and proved. The Court of Appeal in James Mwangi Versus Alex Njuguna & 2others (2011) eKLR, held as follows: “The law requires that special damages be specifically pleaded and also strictly proved, failing which they are not for granting. See Mwai V Kenya Tourist Development Corporation [1983] KLR 358. The record shows that all that the appellant did as far as special damages were concerned was to simply specify them in the plaint without proving them. He moreover never led any evidence in proof of them. In our view, the learned Judge cannot be faulted for not granting them.”

18. Further, the Court of Appeal in Herbert Hahn Versus Amrik Singh (1985) eKLR held as follows: “special damages must not only be claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves.”

19. I find that the Plaintiff did not plead and prove Special Damages to the required standard.

20. The claim for special damages must fail for reasons that it was neither pleaded nor proved.

21. I enter Judgment in the sum of Kshs.1, 500,000/= in favour of the Plaintiff against the Defendant.

22. I also award costs of the suit to the Plaintiff with interest at Court rates from the date of filing suit until payment in full.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 6TH DAY OF MAY, 2022A. N. ONGERIJUDGE