(From the judgment in Civil Case No. E122 of 2022 delivered on 16th February 2022 by Hon. C. K. Kithinji (PM) at Voi Law Courts)
- In a ruling delivered on 16th February 2022, the learned Magistrate dismissed an application dated 26th August 2021 seeking striking out of the plaint dated 6th May 2021 and also dismissal of the suit with costs.
- Dissatisfied with the above ruling, the appellant who was the defendant in the Magistrate’s court has come to this court on appeal through counsel Jengo Associates Advocates on the following grounds:-
- The learned Magistrate erred in law and in fact by applying the wrong principles of law taking into account irrelevant factors and leaving out of account some relevant factors hence erroneously dismissing the application dated 26th August 2021.
- The learned Magistrate erred in law and in fact in holding that the plaintiff’s suit, emanating from material damage claim and not personal injury disclosed a reasonable cause (of) action in law against the defendant .
- The trial Magistrate erred in law by misinterpreting the provisions of Section 5 and 10 of the Insurance (Motor Vehicles Third Party Risks) Act Chapter 405 Laws of Kenya by holding that the plaintiff was a Third Party under the Act.
- The ruling was arbitrarily made without due regard for the law judicial precedent, the parties submissions hence unsustainable in law hence occasioning a miscarriage of justice.
- The learned Magistrate went off target interpreting and trying to apply Section 10(4) of the Insurance (Motor Vehicle Third Party Risk) Act Chapter 405 Laws of Kenya when the issue at hand was not repudiation of the policy of insurance hence made a fundamental error.
- The learned trial Magistrate erred in law and in fact in failing for one reason or another to interpret the provisions of Section 5(b) of the Insurance (Motor Vehicle Third Party Risk) Act Chapter 405 Laws of Kenya instead (of) dwelling on Section 10(4) which was the provision under consideration in the application.
- The appeal was canvassed through written submissions. However, only Jengo Associates Advocates for the appellant filed written submissions. The respondent’s advocates failed to file submissions though they were given adequate time to do so.
- I have considered the documents filed, including the plaint, Memorandum of Appeal, the submissions of the appellant and the ruling of the trial court.
- This being an appeal arising from an objection raised in an application before the Magistrate dated 26th August 2021, means that the applicant had raised a technical legal point regarding the proceedings or suit filed in the Magistrate’s court which had to be decided before the substantive hearing of the suit. It was thus in the form of what may be called a Preliminary Objection.
- I note that the said objection raised in the application was to the effect that the plaint dated 6th May 2021 and lodged in court on 19th August 2021 should be struck out as it disclosed no reasonable cause of action in law, with costs.
- I note also that in the learned Magistrate’s ruling, the subject of this appeal, the learned Magistrate observed that the case filed herein was a declaratory suit, though it was not specifically pleaded as such.
- In my view, this appeal will succeed.
- The first reason is that from the contents of the plaint, the Magistrate was correct in finding that the suit was in the form of a declaratory suit as it referred to another suit relating to a motor vehicle, which collided with the plaintiff’s motor vehicle and in which judgment had already been delivered and damages awarded against that other driver, in favour of the plaintiff herein. Decree had been issued in SRMCC No. 228 of 2018 for Kshs. 1,693,243/=, which the present suit was meant to pursue against the appellant.
- According to paragraph 5 of the plaint also, the defendant in that civil case was the insured of the appellant herein, thus the commencement of the present case to obtain judgment against the appellant for payment of the above decretal amount with costs, is an attempt to enforce that judgment.
- In my view, based on pleadings filed, this suit does not disclose a cause of action as the respondent herein has no basis of obtaining a declaratory judgment against the appellant herein under the insurance cover because the alleged insurance policy was in favour of a third party, not the respondent herein. In my view, the defendant in that other civil case could have a cause of action in a declaratory suit against the appellant for satisfaction of the judgment. However, the respondent herein (who was the plaintiff) being a stranger to the insurance policy, could only proceed to levy execution against the defendant therein not a third party. They cannot also come to court in a declaratory suit to enforce a judgment against the appellant (insurer and third party), as he attempted to do herein.
- The second reason why the respondent has no cause of action is the provisions of Section 5 and Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act Chapter 405.
- Under the above provisions of the Act, compulsory insurance for motor vehicles is only envisaged for death of, or bodily injury to any person caused or arising out of the use of a vehicle on a road.
- The claim of the respondent herein per the plaint, being a claim for recovery of costs of damage to the motor vehicle, is not covered under compulsory insurance. Thus it cannot be enforced by them through the blanket statutory compulsory insurance cover.
- I thus find that the suit herein instituted by way of plaint by the respondent is not sustainable. I will allow the appeal, and strike out the plaint.
- Consequently, and for the above reasons, I allow the appeal, set aside the ruling of the learned trial Magistrate, and strike out the plaint herein, with costs to the appellant payable by the respondent.
Dated, signed and delivered this 23rd day of May 2024 in open court at Voi virtually.
In the presence of:-
Trizah – Court Assistant
Ms. Masinde for respondent