[2003] KEHC 83 (KLR)
The court found that while the Defendant alleged non-service of statutory notice, the Plaintiff presented affidavit evidence suggesting that notice was given by letter dated October 26, 1992. There was no categorical denial of the existence of this letter. Given the drastic nature of striking out pleadings, the...
Source-derived case information.
- Citation
- [2003] KEHC 83 (KLR)
- Parties
- Plaintiff: Silvia Owure; Defendant: Gateway Insurance Company Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 73 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Plaint
- Outcome
- application dismissed
- Legal Topics
- Striking Out of Pleadings, Statutory Notice Requirement, Motor Vehicle Third Party Risks, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silvia Owure
Plaintiff
Gateway Insurance Company Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the Plaintiff served a statutory notice under the Insurance (Motor Vehicle Third Party Risks) Act upon the Defendant.
- 2 Whether the absence of such notice warrants striking out the Plaint under Order VI Rule 13.
Ratio Decidendi
The court found that while the Defendant alleged non-service of statutory notice, the Plaintiff presented affidavit evidence suggesting that notice was given by letter dated October 26, 1992. There was no categorical denial of the existence of this letter. Given the drastic nature of striking out pleadings, the court held that this was not a clear case warranting such a remedy. The application to strike out the Plaint was therefore dismissed with costs to the Plaintiff.
Court Disposition
application dismissed
Orders
- The Defendant's application dated May 18, 2001 to strike out the Plaint is dismissed with costs.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU CIVIL SUIT NO. 73 OF 2001
SILVIA OWURE ……………………………………………….…..PLAINTIFF VERSUS GATEWAY INSURANCE COMPANY LIMITED ……….……DEFENDANT
RULING
This is an application under Order VI Rule 13 (1) (b) and (d) of the Civil Procedure Rules, section 3A of the Civil Procedure Rules, Section 3A of the Civil Procedure Act (Cap. 21) and Section 10 (2)(a) of the Insurance (Motor Vehicle Third Party Risks) Act (Cap. 405). In it, the Defendant seeks to have the Plaintiff’s Plaint struck out.
It is common ground that this action can only be maintained if a statutory Notice under Cap. 405 was served upon the Defendant. The Defendant says that no such notice was served. The Plaintiff on his part relies on an affidavit sworn on August 3, 2000 by the Defendant’s insured one Simon Ng’ang’a Kamau in HCCC No. 334 OF 2000 between the said insured and the Defendant and the Plaintiff in which he stated that the Plaintiff informed the Defendant of the relevant action by a letter dated October 26, 1992. I did not see that letter but there was no allegation that no such letter existed. I am warned that the remedy sought by the Defendant is a draconian one which will have a final effect of putting the Plaintiff out of the seat of justice and that remedy ought to be exercised sparingly and in the clearest cases only. That is not the case here. I, therefore, dismiss the Defendant’s application dated May 18, 2001 with costs.
Dated and Delivered at Nakuru this 30th day of July, 2003.
ALNASHIR VISRAM JUDGE