Makau v Invesco Assurance Company Limited [2023] KEMC 94 (KLR)

Makau v Invesco Assurance Company Limited (Civil Suit 7671 of 2019) [2023] KEMC 94 (KLR) (16 March 2023) (Judgment)

Neutral citation: [2023] KEMC 94 (KLR)

Republic of Kenya

In the Chief Magistrate's Court (Milimani Law Courts)

Civil Suit 7671 of 2019

JP Aduke, SRM

March 16, 2023

Between

Daniel Kituku Makau

Plaintiff

and

Invesco Assurance Company Limited

Defendant

Judgment

1. The Plaintiff filed this suit against the defendants following a road traffic accident on 11th December 2011 in Nairobi. In the plaint on file, the plaintiff avers that a road traffic accident happened, the plaintiff moved to court and obtained a judgment against the insured. The plaintiff avers that the defendant herein has since declined to satisfy the judgment and decree of this court. This is a declaratory suit.

2. Return of Service on Record shows that the defendants were served with the suit papers. The defendant failed to enter appearance within the stipulated period. As a result, judgment in default of appearance was entered against the Defendant. At the hearing thereof, the plaintiff called one witness who testified on oath. The plaintiff filed written submissions. The issues for determination before this court are liability and quantum.1. LiabilityWith respect to liability, I have seen a copy of the judgment of Hon L.M. Wachira (Mrs) SPM dated 06th June 2016. I have also seen a copy of the statutory notice issued to the Defendant herein. I have considered the above against the provisions of section 10 (1) of the Insurance (Motor Vehicle Third Party Risks) Act and find that the Defendant herein is liable to pay the Plaintiff the benefits of the aforementioned judgement. This in my view settles the issue of liability.2. QuontumWith respect to quantum, the plaintiff prays for KES 151,762, the costs of this suit, and interest at court rates until payment in full. The judgement before me awarded a sum of KES 99,600/- in principal. Having considered the submissions filed by the plaintiff and all the authorities annexed thereto, I declare as follows:

3. I enter judgement in favour of the plaintiff as follows:1. The Defendant is liable and is hereby ordered to pay the Plaintiff herein the sums outlined in the judgement dated 06th June 2016 issued by Hon L.M. Wachira Senior Principal Magistrate.2. Costs of this suit.3. Interest on 2 above at court rates.4. I note that the Plaintiff has prayed for interest on the amount of KES 151,762/-. It is my considered view that the sums outlined in the judgement dated 06th June 2016 are treated as special damages in this suit. The plaintiff was awarded interest in that judgment. Awarding interest in this suit on the award will have a compounding effect on the interest and amount to unjust enrichment in my view. I decline to award interest on the outstanding award for the reasons outlined in the text of the decision.

4. The Plaintiff shall have costs in this suit and interests as outlined above from the date of this judgement until payment in full.

JUDGEMENT SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 16TH MARCH 2023 IN THE ABSENCE OF THE PARTIES AT 12. 44PM.ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEIn the presence of :1. Court Assistant: Benjamin Kombe.2. Counsel for the Plaintiff- …………………N/A….…………………………………………………………..(Name, Signature, Date)3. For the Defence: ……………………N/A………………………….………………………………..(Name, Signature, Date)