[2002] KECA 233 (KLR)
The court held that the appellant's failure to notify the insurer of the third party proceedings, as required by both the insurance policy and the Traffic Act, meant that the insurer's liability was not triggered. The court further found that claims for loss of earnings were expressly excluded by the policy. As...
Source-derived case information.
- Citation
- [2002] KECA 233 (KLR)
- Parties
- Appellant: Simon Mugo; Respondent: Intra Africa Assurance Co. Ltd.; Respondent: Association of Kenya Insurers; Respondent: Risk Shield Insurance Brokers
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 37 of 1999
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- JE Gicheru, EO O'Kubasu
- Legal Topics
- Insurance Contracts, Policy Exclusions, Notice Requirements, Third Party Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Mugo
Appellant
Intra Africa Assurance Co. Ltd.
Respondent
Association of Kenya Insurers
Respondent
Risk Shield Insurance Brokers
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the insurer is liable to indemnify the insured where the insured failed to give notice of third party proceedings as required by the insurance policy and the Traffic Act.
- 2 Whether claims for loss of earnings are recoverable under the terms of the insurance policy.
Ratio Decidendi
The court held that the appellant's failure to notify the insurer of the third party proceedings, as required by both the insurance policy and the Traffic Act, meant that the insurer's liability was not triggered. The court further found that claims for loss of earnings were expressly excluded by the policy. As such, the matters upon which the appellant's claim was based were not covered by the contract between the parties. The superior court was justified in dismissing the suit, and the appeal was accordingly dismissed with costs.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, LAKHA & O'KUBASU, JJ.A.)
CIVIL APPEAL NO. 37 OF 1999
BETWEEN
SIMON MUGO ...........................................................................APPELLANT
AND
INTRA AFRICA ASSURANCE CO. LTD. .................... 1STRESPONDENT
ASSOCIATION OF KENYA INSURERS ...................... 2NDRESPONDENT
RISK SHIELD INSURANCE BROKERS ...................... 3RDRESPONDENT
JUDGMENT OF THE COURT
This is an unsuccessful plaintiff's appeal from a decision of the superior court (Ole Keiwua, J., as he then was) given on December 14, 1998whereby he dismissed the plaintiff's suit against the defendants with costs.
The plaintiff's claim arose from the involvement of his car in an accident on 17 December 1987 in which the other driver to the accident was charged and convicted. He was separately sued by a third party to the accident. Notice of such proceedings, however, was not given to the first defendant as the insurer in compliance with the Traffic Act. Pursuant thereto, K.Shs.10,000/= was paid by
the plaintiff to the first defendant on account of policy excess and thereby make it possible for the first defendant to process and deal with the claim of the third party.
Ultimately, the third party obtained judgment against the plaintiff for K.Shs.63,975/= in respect of which the plaintiff's motor vehicle was attached. The plaintiff claims the value of the motor vehicle, loss of earnings from the said motor vehicle and general damages.
The plaintiff concedes he had not informed the defendants about the third party suit against him. But the plaintiff applied to set aside the judgment of that case. He did not succeed because it was found that the plaintiff had been served with summons.
The defendants submit that the claim in the instant case was by the insured and not by a third party and the provisions of the Traffic Actdo not apply as they apply in relation to claims by third parties to the policy. We agree and see Section I Loss or Damage. Under conditions 4 and 10 of the Policy, the insured is required to give notice to the insurers of an impending claim to render the defendants liable.
Accordingly, we are satisfied that this suit must fail as the matters upon which the claim is made are not matters provided in the contract between these parties and claims for loss of earnings which are specifically excluded by Exceptions to Section I of the policy. The learned judge, in our judgment, was fully justified www.kenyalawreports.or.ke 3 in dismissing the suit. The appeal also fails and it is dismissed with costs.
Dated and delivered at Nairobi this 26th day of April, 2002.
J.E. GICHERU
....................
JUDGE OF APPEAL
A.A. LAKHA
....................
JUDGE OF APPEAL
E. O'KUBASU
....................
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR