Geminia Insurance Co Ltd v Incore International Ltd [2022] KEHC 1494 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HC. CIVIL CASE NO. E1 OF 2020

GEMINIA INSURANCE CO. LTD......................................................PLAINTIFF

VERSUS

INCORE INTERNATIONAL LTD................................................DEFENDANTS

JUDGMENT

1.   The plaintiff, an insurance company, has come to this court through a plaint dated 17th September 2020 for two declarations and costs. The declarations sought are basically that the plaintiff is entitled to avoid policy of insurance No. HRH/NBI/2016/002804 and that they are not liable to pay any claims arising from the accident of 2nd September 2019 herein involving motor vehicle registration number KBL 916 J, including but not limited to judgment that may arise out of Kilungu CMCC No. 144 of 2020 and Kilungu CMCC No. 119 of 2020.

2.  The named defendant in the suit is Incore International Limited, and though the defendant was served with pleadings and an affidavit of service sworn on 17th December 2020 was filed, the defendant neither entered appearance nor responded to the plaint.

3.  When the matter came up for hearing on 29th September 2021, the plaintiff called only one witness David Nyaundi, it’s Claims Officer who testified in court.

4.  The plaintiff’s witness adopted his witness statement together with other documents filed by the plaintiff as his evidence in chief, and was not cross examined as the defendant was not present in court.

5.   The evidence of the plaintiff’s witness was that after the accident occurred at the Emali junction on 2nd September 2019, the defendant informed the plaintiff about the accident by filling Motor Accident Report Form, in which he indicated that there were no passengers aboard the vehicle at the time of accident.

6.   It was the plaintiff’s further evidence that, the above notwithstanding, the police abstract indicates that there were two passengers in the vehicle and that subsequently summons in respect of Kilungu CMCC No. 144 of 2020, and CMCC No. 119 of 2020, were received by the plaintiff.

7.   It is the plaintiff’s witness position that there was a breach of the terms of insurance contract, and that the plaintiff is thus not liable, and thus seeks the declarations herein and costs.

8.   In written submissions, the plaintiff’s counsel S.M Chege & company relied on decided court cases such as National Bank of Kenya Ltd –vs- Pipeplastic Samkolit (K) Ltd (2001) e KLR, and Geminia Insurance Company Limited –vs- Kenjap Motors Ltd (2017) e KLR.

9.   I have considered the matter and the evidence on record. From the evidence placed before me herein, which is not controverted, the insurance policy did not cover the passengers. Thus the passengers at the time of the alleged accident were not covered by the insurance policy herein.

10. In those circumstances, and from the evidence on record, I find that the plaintiff is entitled to repudiate the insurance policy No. HRH/NBI/2016/002804. The plaintiff’s case will thus succeed.

11. I thus enter judgment in favour of the plaintiff and grant the declarations prayed for.

12. I also ward costs of this suit to the plaintiff against the defendant.

DELIVERED, SIGNED & DATED THIS 17TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI.

………………………………….

GEORGE DULU

JUDGE