Mchale & another v Kimanga & 2 others [2022] KEHC 15644 (KLR)

Mchale & another v Kimanga & 2 others (Civil Case 211 of 2009) [2022] KEHC 15644 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15644 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 211 of 2009

JK Sergon, J

November 11, 2022

Between

Sheila Mchale

1st Plaintiff

White Horse Insurance Limited

2nd Plaintiff

and

Fredrick Kimanga

1st Defendant

Hyoung & Co (EA) Limited

2nd Defendant

Alex Iseo Kasyoka

3rd Defendant

Judgment

1. Sheila Mchale the 1st plaintiff herein filed an action against Fredrick Kimanga and Hyoung & Co (EA) Ltd being the 1st and 2nd defendants herein respectively vide the plaint dated February 13, 2009 whereof she sought for special damages for the injuries the plaintiff sustained in a road traffic accident while she was a passenger in Motor Vehicle Registration No KAS 867Q owned by the 2nd defendant.

2. The plaintiff took out an application dated September 26, 2012 whereof she sought for leave to amend the plaint to enjoin White Horse Insurance Company Ltd as the 2nd plaintiff and Alex Iseo Kasyoka as the 3rd defendant to the suit.

3. The 1st defendant filed grounds of opposition to resist the 1st plaintiff’s application. Hon Wangila, learned deputy registrar directed the parties to file written submissions.

4. The learned deputy registrar determined the application in favour of the 1st plaintiff by allowing the same by her ruling delivered on June 26, 2013. The appellant being dissatisfied with the deputy registrar’s ruling preferred this appeal and put forward the following grounds:i.The learned deputy registrar erred in fact and law in allowing the joinder of a foreign insurance company in an action in tort yet the said insurance company neither the tortfeasor nor the victim.ii.The learned deputy registrar erred in fact and law in allowing the joinder of a foreign insurance company in an action yet the doctrine of subrogation had not been invoked.iii.The learned deputy registrar erred in fact and law by allowing an amendment which included a time barred claim.iv.The learned deputy registrar erred in fact and law by failing to substantially and adequately consider the appellant’s submissions.

5. When the appeal came up for hearing, this court gave directions to have the appeal disposed of by written submissions.

6. I have re-evaluated the arguments that were presented before the trial court. I have further considered the rival written submissions. Grounds (i) and (ii) of appeal can be dealt with together. It is the submission of the appellant that the learned deputy registrar erred by enjoining the intended new plaintiff (2nd plaintiff) since the same had no cause of action against the defendant.

7. The appellant argued that the 2nd plaintiff was not on the subject highway and was therefore not endangered by the 1st defendant’s use of the motor vehicle on the road. It is also pointed out that the 2nd plaintiff would be categorised as a third party under the Insurance Third Party Liability Act, cap 405 Laws of Kenya.

8. The appellant further argued that the 2nd plaintiff being an insurance company can be compelled to settle a claim vide a new declaratory suit under section 10 of the Insurance Third Party Liability Act. For the above reasons, the appellant urged this court to hold that the deputy registrar’s action to allow the application of joinder was erroneous.

9. The respondent on the other hand is of the submission that the appellant failed to demonstrate to the court how he would be prejudiced by the joinder of the 2nd respondent. The respondent further averred that the deputy registrar did not error in allowing the joinder of the 2nd plaintiff as leave to amend the pleadings was properly sought through a formal application.

10. Having considered the rival submissions, I am persuaded by the respondents’ submissions that the joinder of the 2nd plaintiff did not prejudice any party and even if it were to be said that it prejudiced any party such prejudice can be compensated by way of costs. The 2nd plaintiff’s joinder therefore was properly done hence the learned deputy registrar cannot be faulted.

11. In ground (iii) it is argued by the appellant that by allowing inclusion of the 2nd plaintiff’s monetary claim the deputy registrar erred since the claim was time-barred. The appellant pointed out that the aforesaid expenditure was incurred in April 2007 which was approximately six (6) years to the time of the application was being made.

12. It is the submission of the appellant that the claim was time-barred under section 4(2) of the Limitations of Actions Act. The respondents are of the submission that the cause of action in the suit arose on April 14, 2007 and this suit was filed on April 17, 2009 within the statutory time limit of 3 years.

13. With respect, I am convinced by the respondents’ argument that the claim introduced by way of amendment arose within the statutory period. It cannot therefore be said to be time-barred.

14. In the end, I find the appeal to be without merit. The same is dismissed with costs abiding the outcome of the suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. J K SERGONJUDGEIn the presence of:………………. for the 1st Plaintiff............ for the 2nd Plaintiff………………. for the 1st Defendant............ for the 2nd Defendant............ for the 3rd Defendant