Heritage Insurance Co. Ltd v Mary Joy Kindergarten & Primary School [2014] KEHC 5900 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 630 OF 2011

THE HERITAGE INSURANCE CO. LTD ….………………….... PLAINTIFF

V E R S U S

MARY JOY KINDERGARTEN & PRIMARY SCHOOL ……… DEFENDANT

RULING

The Plaintiff filed this suit seeking orders that the Court do declare that the Plaintiff is entitled to avoid the Policy of Insurance issued to Defendant in respect of bus registration No. KBA 919T belonging to Defendant.  Plaintiff alleges the Defendant was issued with a Commercial Insurance and not a Public Service Policy of Insurance.  Contrary to that Insurance Plaintiff alleged the Defendant was conveying passengers for hire or reward.  That the Defendant lodged a claim for indemnity in respect of an accident which occurred on 27th November 2010 and further that claims arose on behalf of the passenger for damages for injuries suffered in that accident.  Plaintiff seeks to declaration that it is entitled to avoid the said Policy of Insurance.

Defendant has filed a Notice of Motion dated 17th May 2012 seeking stay of proceedings in Kilungu SRMCC No. 27 of 2011 where Defendant has been sued in respect of the aforesaid accident.  Defendant seeks stay of that case on the ground that this present case where the Plaintiff Insurer is seeking to avoid the policy of Insurance, be heard and determined first for it is in the interest of justice that that issue be determined before the hearing of the claim for personal injury is heard.

The Plaintiff did not oppose the application and in my view quite rightly so.  It is essential a determination of the Plaintiff’s liability in respect of the accident be made, so that if the Court does find Plaintiff is liable, Plaintiff can participate in hearing at the Magistrate’s Court.

It is for that reason I make the following orders-

A stay of Kilungu SRMCC No. 27 of 2011 and any other claim in respect of the accident of vehicle KBA 919T is hereby granted for only six (6) months from this date hereof, unless this Court grants a further extension for sufficient cause being shown.

The costs of Notice of Motion dated 17th May 2012 shall be in the cause.

At the reading of this Ruling a hearing date of this case and pre-trial directions shall be given.

DATED and DELIVERED at MOMBASA   this 3RD day   of APRIL, 2014.

MARY KASANGO

JUDGE