[2022] KEHC 11803 (KLR)

Wairegi v Resolution Insurance Company Ltd (Civil Case 5 of 2020) [2022] KEHC 11803 (KLR) (13 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11803 (KLR)

Republic of Kenya

In the High Court at Kisii

Civil Case 5 of 2020

REA Ougo, J

July 13, 2022

Between

Humphrey Brian Nduhiu Wairegi

Applicant

and

Resolution Insurance Company Ltd

Respondent

Ruling

1. On the October 18, 2020 the plaintiff/applicant filed suit against the defendant/respondent. The plaintiff claims to be a policy holder of policy No P/160/0802/2017/0373 that was issued by the defendant commencing on the 20/9/2017 to 19/9/2018. Vide the said policy the defendant insured the plaintiff against liability or bodily injury to any other person a rising from the use of motor vehicle registration No KCF 418E Isuzu lorry and a certificate of insurance was issued upon payment of the required premium.

2. That on or about the 30/4/2018 an incident happened along Nyangusu Keroka road involving motor registration No KCF 418E Isuzu whilst carrying a passenger who sustained body injuries.

3. The plaintiff avers that he had another policy of insurance No P/160/0802/2017/06607 issued by the defendant commencing on the 18/1/2018 to 17/1/2019 against liability or bodily injuries to any other person arising from the use of motor vehicle registration No KCB 633M and issued a certificate of insurance upon payment of the required premium.

4. That on the 14/7/2018 vehicle registration No KCB 633M hit a pedestrian who sustained bodily injuries and suffered loss and damage.

5. The injured person in the respective accidents instituted claims for damages and decrees were issued in Kisii CMCC No 691 of 2018 between Milka Kerubo Chango vs Humphrey Brian Nduhiu Wairegi and Ogembo CMCC No 71 of 2018 between Sarah Kwamboka vs Humphrey Brian Nduhiu.

6. It is averred further that the defendant/respondent appointed an advocate to defend the plaintiff in the 2 suits but thereafter the defendant has failed and or neglected to pay the decretal sums of Kshs 297,096 in Kisii CMCC No 691 of 2018 and Kshs 631,973. 30 in Ogembo CMCC No71 of 2018 for which execution process is ongoing as the judgment remains wholly unsatisfied.

7. According to the plaintiff the defendant has breached the policy and statutory obligations of satisfying the judgment in Kisii CMCC 691of 2018 pursuant to the Insurance (Motor vehicle third party Risk) as a result the plaintiff’s vehicle registration No KCD 322R was attached and is in danger of being sold. That the defendant further breached the policy and statutory obligations of satisfying the judgment in Kisii CMCC No 71 of 2018 claim pursuant to the insurance (Motor vehicle third party risk) as a result the plaintiff is facing execution process.

8. The plaintiff avers that by virtue of the policy agreement and statutory provisions under the Insurance (Motor vehicle third party risks)Actcap 405 Laws of Kenya the defendant is duty bound to satisfy the judgment against the plaintiff (insured) in respect of the liability arising from the said 2 accidents.

9. The plaintiff seeks judgment against the defendant for:a.An injunction to restrain the defendant by itself, its agents or servants or otherwise howsoever from breaching the policy agreement and statutory duty relating to the policy.b.A declaration that the defendant is bound to satisfy all the judgments given against the plaintiff arising from the accident involving motor vehicle registration No KCB 633M which occurred during the validity of the policy of Insurance No P/160/082/2017/0607. c.A declaration that the defendant is bound to satisfy all the judgments given against the plaintiff arising from the accident involving motor vehicle registration No KCF 418 which occurred during the validity of the policy of insurance No P/160/0802/2017/0373. d.Damagese.Costs and interest.

10. Following the execution process the plaintiff filed a notice of motion dated October 16, 2020 simultaneous with the plaint, under section 63(c) & (e) of the CPAorder 40 rule 2 of the CPR seeking the following orders:1. Spent2. The execution process commenced against the applicant in Kisii CMCC No 691 of 2018 and Ogembo PMCC NO 71 of 2018 be stayed pending the hearing and determination of this application or in the alternative.3. Pending the hearing and determination of this application, the honourble court be pleased to issue an interim injunction restraining the defendant, its servant or agents or otherwise howsoever manner breaching the policy agreements or statutory duty in respect to the satisfaction of the judgments in Kisii CMCC No 691 of 2018 between Milka Kerubo Chango vs Humphrey Brian Nduhiu Wairegi and Ogembo PMCC No 71 of 2018 between Sarah Kwamboka vs Humphrey Brian Nduhiu (the applicant herein).4. Pending the hearing and determination of this suit the honourable court be pleased to issue a temporary injunction restraining the defendant from breaching the policy agreements and/or statutory duty in respect of the satisfaction of the judgments in Kisii CMCC NO 691 of 2018 and any judgment arising from Ogembo PNCC No71 of 2018. 5.In the alternative, the judgment and in Kisii CMCC No 691 of 2018 and Ogembo PMCC No 71 of 2018 be directed to the defendant for satisfaction pending hearing and determination of the suit.6. Any other suitable or further orders to be made as the court may deem just.7. The costs of the suit be provided for.

11. The plaintiff/applicant claims that he was not aware that the 2 suits had been instituted against him in Kisii CMCC No 691 of 2018 and Ogembo PMCC NO 7 of 2018. He claims that he has a prima facie case with overwhelming chances of success, that he stands to suffer irreparable loss in the event that orders of temporary injunction are not granted and that the balance of convenience tilts towards granting the injunction.

12. In a defence filed on the 25/2/2021 the defendant denies that it insured vehicles registration No KCF 418 E & KCB 633M as alleged by the plaintiff. That it did not receive any statutory notices pursuant to section 10 (2) (a) of the Insurance (Motor Vehicle Third Party). Risks Act and puts the plaintiff to strict proof. The defendant further claims the existence of any polices of insurance in respect of motor vehicle registration No KCF 418E & KCB 633M and that if the said policies were issued by it then they were not in the name of the plaintiff in Kisii CMCC No 691 of 2018 and Ogembo CMCC NO 71 of 2018. It also denies the existence of the said judgments and that if the said judgments exist against persons insured by the defendant then such judgments are not among ones in respect of such liability as is required to be covered by a policy under paragraphs (b) of section 5 of the insurance (Motor Vehicle Third Party Risks) Act.

13. The defendant filed a replying affidavit shown by Mr Elisha Gogi the acting claims manager for Resolution Insurance Company Ltd. He avers that the injunction reliefs sought by the plaintiff have the effect of disposing off the entire suit at the interim stage hence denying the defendant its constitutional rights to be heard. That the judgments referred to by the plaintiff are not amongst the ones in respect of such liability as is required to be covered by a policy under paragraph (b) of section 5 of the Insurance Motor Vehicle Third Party Risks) Act.

14. That in Ogembo PMCC No 71 of 2018 the plaintiff was a non-fare paying passenger therefore excluded from the liability as provided under section 5 (b). That the subject motor vehicle registration No KCF 418E Isuzu lorry was covered under the commercial General Carriage class and as such the policy did not extend to passenger liability.

15. That the relationship between the plaintiff and the defendant is contractual and is limited to such liability as covered under the policy schedule with the effect that any unspecified risk on breach of terms thereof by the plaintiff would warrant the defendant to avoid the policy in toto. That its procedurally unsafe to grant any interim reliefs as the balance of convenience heavily tilts in favor of denying the injunction.

16. On the 8/4/2021 Justice Ndung’u ordered that the application dated 16/2/202 be disposed off by way of written submissions. The plaintiff/applicant filed written submissions on the 2/8/2021 and the defendant/respondent on the 26/7/2021.

Analysis & Determination 17. I have considered the pleadings, the rival affidavits the written submissions and the law relating to injunctions. The issue for determination is whether the plaintiff/applicant is entitled to the injunctive reliefs sought in his application.The principles of granting an injunction were clearly spelt out in the famous case of Giella vs Cassman Brown & Company Ltd (1973) EA 358. The applicant has to demonstrate a prima face case with a probability of success. There appears to be no dispute that there is a contractual obligation between the plaintiff and the defendant.The defendant has however denied breaching terms of the contract. The defendant has raised issues of breach on the part of the plaintiffs and has also admitted that the decretal sum in Kisii CMCC NO 691 OF 2018 has been settled by the defendant in the sum of Kshs 297096. The defendant has raised an issue that the judgment in Ogembo PMCC No 71 of 2018 is not amongst the ones in respect of the liability as is required to be covered by a policy under paragraph (b) of section 5 of the Insurance (Motor Vehicle Third Party Risks Act). This in my view is an issue that can only be determined at a full hearing. The defendant cannot be asked to meet this liability at this interlocutory stage.

18. The next limb to be demonstrated by the plaintiff/applicant is that, he will suffer irreparable loss. I find that the plaintiff/applicant has failed to demonstrate the irreparable loss he will suffer. I find that he can be easily compensated for any loss or damage he will pay the respective plaintiff, the claim is quantifiable and can be settled by an award in damages.

19. Lastly in my view the balance of convenience does not tilt it in favour of the plaintiff/applicant. The order sought cannot be granted at this interlocutory stage, doing so would be granting part of the final prayers sought by the plaintiff in his plaint. I therefore find no merit in the application dated the October 16, 2020. The same is dismissed. Parties shall proceed to prepare the matter for full hearing. Pre-trial conference shall take place within 60 days from the date of this ruling. Costs shall be in the cause.

DATED, SIGNED AND DELIVERED AT KISII THIS 13TH DAY OF JULY, 2022. R. E. OUGOJUDGEIn the presence of:Miss Nyaenya For the Plaintiff/ ApplicantDefendant/Respondent Absent*s. Aphline Court Assistant