[2018] KEHC 1814 (KLR)
The court found that the plaintiff had demonstrated the insurance policy and Certificate of Insurance No. C5991197 for vehicle KBB 742H were validly cancelled following the theft of the vehicle on 14/11/2009 and subsequent payout to the insured. The 2nd defendant was not a party to the insurance contract and thus...
Source-derived case information.
- Citation
- [2018] KEHC 1814 (KLR)
- Parties
- Plaintiff: Phoenix of East Africa Assurance Company; Defendant: William Tengeya Omino; Defendant: Francis Momanyi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 8 of 2015
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- declaration granted in favour of the plaintiff; no order as to costs
- Legal Topics
- Insurance Contract Cancellation, Third Party Liability, Motor Vehicle Insurance, Policyholder Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phoenix of East Africa Assurance Company
Plaintiff
William Tengeya Omino
Defendant
Francis Momanyi
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to a declaration that it is not liable to satisfy any claims or judgments arising from the use of Certificate of Insurance No. C5991197 after 14th November 2009, following its cancellation.
- 2 Whether the plaintiff had any contractual obligation to the 2nd defendant regarding the insurance policy in question.
Ratio Decidendi
The court found that the plaintiff had demonstrated the insurance policy and Certificate of Insurance No. C5991197 for vehicle KBB 742H were validly cancelled following the theft of the vehicle on 14/11/2009 and subsequent payout to the insured. The 2nd defendant was not a party to the insurance contract and thus the plaintiff had no contractual or statutory obligation to satisfy any claims or judgments arising from the use of the vehicle after the cancellation date. The court held that the plaintiff is not liable for any claims or judgments arising from the use of the certificate after 14th November 2009, as the insurance contract had ceased to exist and the 2nd defendant was not an...
Court Disposition
declaration granted in favour of the plaintiff; no order as to costs
Orders
- It is declared that the plaintiff is not entitled to satisfy any claims or judgments arising out of the use of Certificate of Insurance No. C5991197 after 14th November 2009, the certificate having been cancelled.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISII
CIVIL SUIT NO. 8 OF 2015
PHOENIX OF EAST AFRICA ASSURANCE COMPANY.....PLAINTIFF
VERSUS
WILLIAM TENYEGA OMINO........................................1ST DEFENDANT
FRANCIS MOMANYI......................................................2ND DEFENDANT
JUDGMENT
1. The plaintiff in its plaint dated the 23rd of June 2016 prays for a declaration that the plaintiff is not entitled to satisfy any claims, judgment on claim arising out the use of Certificate of Insurance No. C5991197 after 14th November 2009 on grounds that the said Certificate of Insurance had been cancelled.
2. The plaintiff’s evidence and pleadings are that it had insured motor vehicle registration number KBB 742H Toyota. The insured were James Kamau, Boniface Maina and Equity Bank Limited. Their insured paid for the insurance cover for the period between 29/4/2009 to 28/4/2010. On the 14/11/2009 the said vehicle KBB 742H was stolen. Their insured reported the theft to the plaintiff and after investigations the policy of insurance in respect of the motor vehicle was cancelled.
3. Later on the plaintiff received a demand letter from M/s Ochillo and Company Advocates informing them that 1st defendant William Tengeya Omino had filed suit against the 2nd defendant Francis Momanyi seeking compensation for injuries sustained in a road traffic accident on 24/3/2010 involving vehicle registration number KBB 742H and vehicle registration number KAZ 214V. From the demand letter M/s Ochillo and Company Advocates seem to suggest that the2nd defendant is the insured of the plaintiff and that the plaintiff wasliable and obligated to take up the matter and settle the plaintiff’s claim inOgembo PMCC No. 103 of 2011- William Tengeya Omino-vs- Francis Momanyi Obiero. That in response the plaintiff did a letter to M/s Ochillo and Company Advocates denying liability on grounds that vehicle registration number KBB 742H was stolen and the policy cancelled in line with Cap 405 Laws of Kenya.
4. The defendants were served through substituted service. No defence was filed. The 2nd defendant was the alleged owner of vehicle registration no. KBB 742H at the time of the alleged accident whilst the 1st defendant was the claimant in Ogembo PMCC No. 103 of 2011. The matter proceeded to formal proof.
5. The issues for determination is whether the plaintiff is entitled to the declaration sought?
At the hearing the plaintiff’s witness took the court through the documents relating to vehicle registration no. KBB 742H the subject of this suit. The plaintiff demonstrated that after they insured the vehicle they issued a policy document and a Certificate of Insurance No. C. 5991197 commencing the 29th May 2009 and expiring on the 28th April 2010. As per the abstract from police records James Kamau Nganga their insured reported the theft of the said vehicle KBB 742H on the 14/11//2009. They paid off their insured after investigations and they did a letter on the same. That at one time the 2nd defendant went to their offices and indicated that he wanted to settle their outlay now that he was the one in possession of the said vehicle. That he defaulted and did not settle the amount. From this evidence it is clear that the plaintiff’s and the 2nd defendant had no contract. The contract of insurance was between the Plaintiff Company and James Kamau and Boniface Maina the policy holders. The plaintiff has also shown that the vehicle they insured was stolen in November 2009. The alleged accident took place on the 24/3/2010, they were not the insurers of the vehicle on the said date, and they had cancelled the Insurance Certificate in compliance with the provisions of Cap 405 of the Laws of Kenya. The plaintiff had no contract with 2nd defendant, he was not their insured. Thus the plaintiff cannot be obligated to take up responsibility and liability of the claims arising from the use of motor vehicle registration number KBB 742H whilst it was in the possession and control of the 2nd defendant who are not its insured. The plaintiff is not liable for any claims arising from the use of the said vehicle as the 2nd defendant had no contract with the plaintiff. The plaintiff is thus entitled to the order sought. The plaintiff is not entitled to satisfy any claims, judgment on claim arising out of the use of Certificate of Insurance No. C5991197 after 14th November 2009, the Certificate of Insurance having been cancelled. No order as to costs.
Dated signed and delivered this 8th day of November 2018
R. E .OUGO
JUDGE
In the presence of;
Miss Kebungo h/b Mr. Onyinkwa For the Plaintiff
1st and 2nd Defendant Absent
Ms.Rael Court/ clerk