JOSEPH MBUTA NZIU V KENYA ORIENTAL INSURANCE CO. LTD [2004] KEHC 336 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

Civil Suit 110 of 2005

JOSEPH MBUTA NZIU ............................................................................... PLAINTIFF

V E R S U S

KENYA ORIENTAL INSURANCE CO. LTD ..................................... DEFENDANT

Coram :       Before Hon. Justice J. Mwera

Jiwaji for Applicant

Njengo for Respondent / defendant

Court clerk - Kazungu

RULING

The plaintiff prays for orders under O6r.13 (1) (b) (c) (d) Civil Procedure Rules and this court’s inherent jurisdiction that, the defence dated 16th June 2005 be struck out and consequently judgement be entered in his favour for Kshs. 1. 5m as per the claim.

Mr. Jiwaji told the court that the said defence was frivolous, vexatious and an abuse of the court process because there was once HCCC 438/2001 between the present plaintiff and one Musau Kasinga following a road accident in which the plaintiff was injured while traveling in a motor vehicle Reg. No. KAG 407X.  That this motor vehicle was owned by M/S Tsavo Tours & Travels Ltd who had taken out an insurance cover with the present defendant.  That the said Musau Kasinga was the driver.

That in the parent suit (HCCC 438/2001) Mr. K. Nanji represented Kasinga and on 17th March 2005 that suit was compromised by a consent judgement between the advocate of the plaintiff and Mr. Nanji for Musau Kasinga.  The sum of Kshs. 1. 5m was agreed plus orders that payment would issue in 45 days in default to execute.  This is not in dispute.  That indeed on 4th April 2005 Mr. Nanji for (Kasinga) wrote to M/S A. Y. A. Jiwaji & Jiwaji Advocate for the plaintiff, that he had written to his client to avail the Kshs. 1. 5m for onward transmission to the plaintiffs’ lawyers.  Seemingly that did not happen and this declaratory suit was filed on 7th June 2005.  Quoting the law in such causes Mr. Jiwaji told the court that since the accident in question happened when the present defendant insurance company had covered the motor vehicle by way of insurance, and a sum of Kshs. 1. 5m was agreed as damages, then the present defendant has no worthwhile defence to this suit save to pay up.

Mr. Njengo had a different view.  He did not deny that his client insured the subject motor vehicle at the time the accident occurred and the applicant was injured.  He did not deny either that the applicant sued Musau Kasinga and a consent judgement was recorded on 17th March 2005 giving the plaintiff / applicant Kshs. 1. 5m in damages.  His only contention was that first his client did not insure Musau Kasinga’s vehicle.  That it insured the motor vehicle belonging to M/S Tsavo Safarais & Travels Ltd, and this insured was not a party in the parent case HCCC 438/01.  That M/S Tsavo Safaris did not instruct Mr. Nanji to defend Musau Kasinga in that case and so it cannot accept to pay what the applicant and Musau agreed in the consent judgement.  And further that the present defendant had pleaded in its defence that no statutory notice under Section 10 of Cap. 405 was ever served on it before proceedings were instituted in HCCC 438/01.

In the light of the foregoing this court is unable to accede to the orders sought.  It appears to it that the issue of whom the present defendant had insured, and it was not a party in the parent suit, plus the claim that the statutory notice in such cases was not served on it, will be issues to be canvassed at the trial and determined on evidence.  Those points, to this court’s view, cannot at this stage be considered frivolous, vexatious or an abuse of the court process.

In sum this application is dismissed with costs.

Orders accordingly.

Delivered on 17th November 2004.

J. W. MWERA

JUDGE