Okoth (Suing as the legal administrator of the Estate of Teresa Achieng Nicholas - Deceased) v Jubilee Insurance Company Limited [2022] KEHC 16318 (KLR)

Okoth (Suing as the legal administrator of the Estate of Teresa Achieng Nicholas - Deceased) v Jubilee Insurance Company Limited (Civil Case E002 of 2022) [2022] KEHC 16318 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16318 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Case E002 of 2022

KW Kiarie, J

December 15, 2022

Between

Henry Okoth

Plaintiff

Suing as the legal administrator of the Estate of Teresa Achieng Nicholas - Deceased

and

Jubilee Insurance Company Limited

Defendant

Ruling

1. The defendant herein raised a preliminary objection dated September 2, 2022 premised on the following grounds:a.That the suit herein, is fatally defective, incompetent and bad in law and the same ought to be struck out ex debito justitiae.b.That the plaint dated June 6, 2022 is legally untenable and incurably defective and no amount of amendment can cure the defect.c.That the jurisdiction to entertain the entire suit is expressly ousted by the mandatory and express provision of sections 5 and 10 of the Insurance (Motor Vehicle Third Party Risks) Act, cap 405. d.The claim herein is prohibited by the express provision of sections 5 and 10 of the Insurance (Motor Vehicle Third Party Risks).e.That the defendant herein has already paid the plaintiff its statutory obligation of Kshs 3, 000,000/- hence this suit is bad in law and should be dismissed with costs to the defendant.f.That the entire suit is otherwise an abuse of the due process of court.

2. The preliminary objection was opposed by the plaintiff who sought the following orders:a.That the court be pleased to strike out the defence dated August 18, 2022 since it does not disclose any defence in law and therefore an abuse of the process of court and is meant only to delay and embarrass the conclusion of the suit.b.That the judgment be entered in favour of the plaintiff as prayed in the plaint dated June 6, 2022.

3. A preliminary objection must be on a point of law and nothing more. This was clearly stated in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969)EA 696. At page 700 paragraph D-F Law JA as he then was, stated:"....A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration."

4. Section 5 of the Insurance (Motor Vehicle Third Party Risks) Act provides for requirements in respect of insurance policies whereas section 10 provides for the duty of insurer to satisfy judgments against persons insured. In the submissions, the defendant raised issues of fact which can only be ascertained by adducing evidence.

5. I therefore find that the preliminary objection has no basis and the same is hereby dismissed. Equally, the application by the plaintiff cannot be argued together with the preliminary objection. Costs to abide with the outcome of the suit.

DELIVERED AND SIGNED AT HOMA BAY THIS 15TH DAY OF DECEMBER, 2022. KIARIE WAWERU KIARIEJUDGE