Takaful Insurance of Africa Limited v Gulf Energy Transport Limited [2022] KEHC 9875 (KLR)

Takaful Insurance of Africa Limited v Gulf Energy Transport Limited (Commercial Case E070 of 2021) [2022] KEHC 9875 (KLR) (Commercial and Tax) (8 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9875 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Commercial and Tax

Commercial Case E070 of 2021

DAS Majanja, J

July 8, 2022

Between

Takaful Insurance of Africa Limited

Plaintiff

and

Gulf Energy Transport Limited

Defendant

Judgment

1. The Plaintiff is an insurance company. It has filed this suit against its insured, seeking declarations to avoid a commercial insurance policy in respect of motor vehicle registration number KAV 536K (‘’the Motor Vehicle’’) under policy number P/CBD/2014/102/004070 (‘’the Policy’’).

2. The Defendant was served with the plaint and summons to enter appearance but failed to enter appearance and file defence. The matter proceeded for formal proof. The Plaintiffs Legal Officer, Ms Jennifer Solovea (PW 1), testified on behalf of the Plaintiff and produced documentary evidence in support of its case.

3. According to the Plaintiff, the Policy was subject to the payment of premiums and policy excess by the Defendant in default of which the cover would stand repudiated. It was an express term of the Policy cover that the Motor Vehicle was limited as to use for social, domestic and pleasure purposes and for the Defendant’s business but did not cover use for racing competitions, rallies or trials or the carriage of passengers for hire or reward. It was also an express term of the Policy that the Defendant would report to the Plaintiff any accident, injury, loss or damage involving the Motor Vehicle. Under the Policy, the Defendant was required to inform the Plaintiff immediately of any current or future proceedings in connection with any event that may bring about liability under the Policy.

4. The Plaintiff avers that on 24th February 2018, the Motor Vehicle was involved in a road traffic accident with motor vehicle registration number KBN 092T thereby occasioning material damage to KBN 092T. The Plaintiff avers that did not report the accident contrary to the Policy. That Plaintiff further avers that a suit was filed against the Defendant in relation to the accident seeking damages for damage to the motor vehicle; Milimani CMCC No. 1303 OF 2021, Mercy Waitherero Gachoya v Gulf Energy Transport Ltd. The Plaintiff avers that under the terms of the Policy cover it is not liable to indemnify the Defendant as the it failed to report the accident contrary to the terms of the Policy.

5. Based on the foregoing, the Plaintiff prays for judgment against the Defendant for declarations that it is entitled to avoid the Policy and that it is not liable for any claims against the Defendant arising out of the material damage sustained as a result of the accident on 24th February 2018 involving the Defendant’s Motor Vehicle.

6. PW 1 adopted the case set out in the Plaint. Even though the suit is not defended, the Plaintiffs’ has a duty to satisfy the court that it has sufficient evidence entitling it to judgment (Rosaline Mary Kahumbu v National Bank of Kenya [2014] eKLR). Further, the burden of proof is not in any way lessened merely because the matter is a formal proof. The Plaintiff still has the duty to prove its case on a balance of probabilities (Karugi and Another v Kabiya and 3 Others [1983] eKLR).

7. PW 1 produced a copy of the Policy, notice of disclaimer and the pleadings in Milimani CMCC No. 1303 of 2021. The Policy entitles the Plaintiff to disclaim liability if the insured does not report the accident to the Plaintiff as it is a condition of the Policy. The Defendant failed to report the accident to the Plaintiff as testified by PW 1. In the circumstances, I find that the Plaintiff has proved its case on the balance of probabilities.

8. I allow the Plaintiff’s suit as prayed on the following terms:(a.)A declaration be and is hereby issued that the Plaintiff is entitled to avoid Policy of Insurance No. P/CBD/2014/102/004070 and on the ground that the Defendant failed to report the accident on 24th February 2018 involving the motor vehicle registration number KAV 536K.(b)A declaration be and is hereby issued that the Plaintiff is not liable to make any payment under the Policy of Insurance No. P/CBD/2014/102/004070 in respect of any claims against the insured of KAV 536K arising out of the material damage sustained as a result of the accident on 24th February 2018 involving the motor vehicle registration number KBN 092T and/or from any accident involving the motor vehicle KAV 536K during the pendency of the said insurance policy.(c)The Defendant shall pay costs of the suit of the suit assessed at KES. 50,000. 00 exclusive of court fees and disbursement to be certified by the Deputy Registrar.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF JULY 2022. D. S. MAJANJAJUDGECourt Assistant: Mr. M. Onyango.Machari Burugu and Company Advocates for the Plaintiff.