Vegpro (K) Limited v Tausi Assurance Company Limited & Insurance Legulatory Authority (IRA) [2018] KEHC 5341 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 112 OF 2017

VEGPRO (K) LTD..................................................................PLAINTIFF

VERSUS

TAUSI ASSURANCE COMPANY LIMITED ..........1ST DEFENDANT

INSURANCE LEGULATORY

AUTHORITY IRA.......................................................2ND DEFENDNAT

RULING

This is an application by way of Notice of Motion  dated 13th September, 2017 under Order 4 Rule (1), (f) and Order 2 Rule15 (1) of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act seeking an Order that this suit be struck out with costs to the 1st defendant.

The reason for seeking that order is that, the plaint is a gross abuse of the court process in that prior to filing this suit the plaintiff lodged another suit before the Chief Magistrate’s Court, being No. 6422 of 2016 against the 1st defendant arising from the same cause of action.  There is a supporting affidavit sworn by the advocate for the 1st defendant.

The plaint relating to CMCC No. 6422 of,2016 and the defence of the 1st defendant are  annextures  to that affidavit.  The application is opposed and there is a replying affidavit sworn by the Group Human Resource Manager of the plaintiff.  The suit in the lower court is admitted, and the reason for filing the present suit is because the 1st defendant has an obligation to meet the judgment in the lower court entered against the plaintiff herein, it being the insurer of the plaintiff, and the 2nd defendant being the Insurance Regulatory Authority with the  duty to compel the 1st  defendant to meet its obligation.  This duty, the 2nd defendant has failed to meet.

Both parties have filed submissions which I have considered.  I have related the pleadings in the lower court to the pleadings in this court alongside the submissions filed.  The thrust of the application is that the plaintiff is guilty of duplicity.  It is true that some of the pleadings in the lower court have been repeated in the instant case word for word.  I notice however that in addition to the prayers set out in the lower court, the present plaint has addressed the duty and liability of the 2nd defendant in a declaratory manner.

It cannot be said therefore that the two cases are identical.  An allegation of duplicity necessarily means that the aggrieved party may be subjected to double jeopardy.  Looking at the prayers, there is no way the 1st defendant can be subjected to such a situation.  There may be some concern about costs when the two matters are eventually determined, but that should not call for the striking out of the plaint.  If the plaint were to be struck out the plaintiff would have no recourse in compelling the 2nd defendant to perform its statutory duty.

Striking out of a pleading is a drastic measure which should be applied cautiously.  This is because it drives out a litigant from the seat of justice.  I consider it undesirable in the circumstances of this case.

This application must fail and is dismissed with costs to the plaintiff.

Dated, signed and delivered at Nairobi this 21st Day of June, 2018.

A. MBOGHOLI MSAGHA

JUDGE