Mercy Moraa Bosire VS KENINDIA ASSURANCE CO.LIMITED Mercy Moraa Bosire VS KENINDIA ASSURANCE CO.LIMITED

INTRODUCTION

The Appellant in this matter filed the appeal challenging the ruling delivered on 22^nd march 2024 dismissing the suit on the basis of a preliminary objection premised on the provisions of Section 10 (1) of the (Motor Vehicle Third Party Risks) Act Cap 405, Laws Of Kenya ,2010.
According to the appellant the learned Honorable magistrate erred in law by upholding the preliminary objection and thus the appellant seeks t have the decision overturned on the following grounds:-
THAT the Honourable Magistrate erred in law and in Fact in dismissing the suit.
THAT the Honourable Magistrate erred in Law and in Fact in upholding the Respondent’s Preliminary Objection.
THAT the Honourable Magistrate erred and misdirected himself in law and in fact in failing to holistically consider the import of Section 10 (1) of The Insurance (Motor Vehicle Third Party Risks) Act Cap 405, Laws Of Kenya ,2010 when dismissing the suit.
The issue that arises from these grounds is whether the preliminary objection raised by the respondent leading to the dismissal of the suit amounted to a pure point of law thus justifying the dismissal of the suit.

APPELLANTS CASE

The appellant’s claim arises out of a decretal sum of Ksh 449,730.41 plus cost assessed at Ksh55,800 vide a decree issued and sealed by the court on 2^nd June 2023 in Milimani Small Claims case No. E1108/2023.
The respondent filed a response to the claim accompanied by a Preliminary Objection dated 1st December, 2023 on the basis that the claim was against the provisions of Section 10(1) of the Motor Vehicle Third Party Risks Act.
The appellant poses the question, what is a preliminary objection in law and in answer therefore refers to the decision of the Court of Appeal in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696. Where At page 700 Law JA 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."
At page 701 Sir Charles Newbold, P added:
"A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side. are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of Judicial discretion...

The appellant submits that the said Preliminary Objection does not disclose how the claim offends the said Act.
Further, the appellant submits that the respondent has not demonstrated how the suit offends the Act thus the Preliminary Objection ought to have been dismissed.
The appellant has also taken issue with the filing of the response arguing that the same was not filed with 14 days from the mention date thus it ought to have been rejected.
The appellant has also taken issue with service by way of email and argued that service was not sufficient.
The appellant maintains that the suit was properly before court and that a letter of demand and notice of intention to sue dated 24th October, 2023 were issued as per The Insurance (Motor Vehicle Third Party Risks) Act Cap 405, Laws of Kenya
The appellant further argued that since the respondent had responded to the claim issues of service were matters that parties can and should canvass at the hearing of the suit.
The appellant urges the court to find that the respondent was notified of the accident and the claim by way of the forwarding letters annexed to the list of documents and further list of documents, dated 20th November, 20222 and 15th March, 2023 respectively.
In any event the appellant submits that once the claimant had filed the documents under reference, the burden of proof shifted to the respondent to establish that the suit was improperly before the court.
The appellant further maintained that once the evidential burden had shifted, it was incumbent upon the respondent to discharge it. In support of that argument the appellant relied on the case of Mbuthia Macharia v Annah Mutua & Another [2017] eKLR in which the court discussed the burden of proof and stated thus:

"The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? In this case, the incidence of both the legal and evidential burden was with the appellant."

According to the appellant, the respondents have to discharge the burden of establishing that the suit was improperly before court. The respondents having attached the claim in the primary suit in their emailed response, that according to the appellant was an undeniable indication that they had the primary suit documents with them but wilfully neglected to defend the primary suit.
The appellant has also urged this Court to find that the Small Claims Court mandated by section 12(1) (c.) of the Small Claims Court Act to adjudicate over matters involving liability in tort in respect of loss or damage caused to any property or for the delivery or recovery of movable property. The appellant therefore submits that by didn’t of Section 12 (1) (c) of the Act the court could determine the claim since it had the necessary subject matter jurisdiction.
The appellant went on to submit on whether the Respondent was legally bound to cover claims arising out of material Damage: in his submission the appellant cited Section 10 (1) of Cap 405 which provides:

If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments."

The appellant further relied on Section 5(b) of the said Act provides;

In order to comply with the requirements of section 4, the policy of insurance must be a policy which insures such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of death of, or bodily injury to, any person caused by or arising out of the use of the vehicle on a road.

It is on the basis of these two provisions of the Act that the appellant submits that the respondents were bound under the law to satisfy the decretal sum since the claim was permissible under the law. In the appellants view therefore the adjudicator was wrong in dismissing the claim.
The appellant referred the court to the responds list of documents to which the respondents attached a policy schedule that includes a cover of Kenya Shillings Five Million (Ksh.5,000,000.00) for third party property damage.
Black's Law Dictionary defines "third Party" as;

"A party who is not a party to a lawsuit, agreement or other transaction but who is somehow implicated in it; someone other than the principal parties." This definition clearly contemplates existence of a class of persons who are not principally parties to the contract but by the very existence of the Insurance Contract, their interests and rights are covered.
The appellant sought to anchor his claim on this.

The appellant went further to cite the provisions of Sections 107 and 108 of the Evidence Act and sought to persuade this court that if the respondent wanted the court to believe that material damage is not covered by the policy, they would be duty bound to adduce evidence for the court to find in its favour. According to the appellant the evidence in support of the claim contradicts the respondent's position in raising the preliminary objection.
In conclusion the appellants relied on the decision in Joseph Mwangi Gitundu v Gateway Insurance Co Ltd [2015]eKLR where the duty of an Insurer to satisfy judgements against persons insured was upheld. The appellant very strongly submitted that there being a valid judgment of the court the respondents were bound to satisfy the same thus the Preliminary objection should have been dismissed and the suit heard on merit.

THE RESPONDENT’S CASE

The respondent raised a preliminary objection dated 1/12/2023 seeking to have the suit dismissed with cause on the ground that the same offence the insurance (Motor Vehicle Third Party Risks) Act Cap 405. In summary the appellants claim arose from a decree issued in Milimani Small Claims Court N0.E1108 of 2023 Mercy Bosire Vs Fredrick Mukuvi Kiilu in which the appellant was awarded the sum of Ksh.512,681 being compensation for loss of property which occurred on 25^th November 2022.
The costs were incurred out of repairs that were occasioned in an accident involving motor vehicles KDQ 486P and KBA 713G which vehicle was insured by the respondent.
The appellant was forced to repair her motor vehicle out of pocket because the cover issued by the respondent was a third party cover and pursued a claim for material damage.
The respondent contends that claimant is not seeking damages in respect of personal injuries to herself but material damages in respect of a damaged motor vehicle. The respondent maintains that the provisions of the insurance (Motor Vehicle third party Risks] Act cap 405 laws of Kenya only relate to award of damages in respect of personal injuries to a person.
The respondent relies on Section 10(2) (c) of the insurance third party risks act cap 405 which states:-

"In connexion with any liability if before the happening of the event which was the cause of the death or bodily injury giving rise to the liability, the policy was cancelled by mutual consent or by virtue of nay provision contained therein"

The respondents relied on the decision of the court In PHOENIX OF EAST AFRICA ASSURANCE CO. LTD VS ALFRED ONYANGO OBONGO (2011) eKLR (Kisii Civil appeal No. 162 of 2008), where the court observed as follows:-

The appellant may perhaps be right in saying that a claim anchored on material damage to a motor vehicle may perhaps not have been one of the risks.

The respondents consequently sought to have the suit struck out since the claim for material damages was not one of the claims contemplated under third party insurance cover.
It is the respondents position that the appeal is not merited and should be dismissed.

DETERMINATION

In dealing with the appeal the court appreciates that it is called upon to determine whether indeed the Preliminary objection leading to the striking out of the suit met the test of a preliminary objection as a spoused in the Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696
This court has perused the statement of claim filed against the respondent in the lower court as well as the statement filed by the appellant in support of that claim.
The court has also looked at the response filed by the respondents and is satisfied from the pleadings no doubt the claim by the appellant was one arising out of material damage. The appellant in her own statement stated

“I was forced to repair my motor vehicle out of pocket because it had a third party cover and pursued a claim for material damage in Milimani Small Claims Court Claim E1108 of 2023, Mercy Moraa Bosire v. Fredrick Mukuvi Kiilu. I was awarded special damages of Kenya Shillings Five Hundred and Twelve Thousand, Six Hundred and Eighty One (Ksh. 512, 681.00) plus costs and interest. Despite the Respondent having been served with the decree in the primary suit aforesaid, and having attempted but failed to set aside proceedings in the primary suit, the Respondent has neglected to satisfy the decree as per the provisions of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya.
The Claimants's claim against the Defendant is for a declaration that it is by law entitled to satisfy the decree arising from Milimani Small Claims Court Claim E1108 of 2023, Mercy Moraa Bosire v. Fredrick Mukuvi Kiilu In spite of my advocates issuing a Demand and Statutory Notice to the Respondent, they have failed to make good of my claim”

It is therefore clear from a plain reading of the pleadings and the evidence in support there arises a pure point of law which is whether a material damage claim can be satisfied by the insurer or a suit instituted for that purpose is maintainable in law against an insurer who at the time of the accident had taken out a Third Party cover.
It is the considered view of this court that a material damage claim is not one of the claims contemplated under Section 10 of the Act thus the learned Honorable magistrate was correct in law in entertaining the preliminary objection based on a plain reading of the pleadings.
The appellants claim could not be maintained and sustained against the respondent in the circumstances of the case. The question as to whether there was controversy that could invite the tendering of evidence to establish liability of the respondent does not arise.
It is clear that when the appellant filed the suit she sought to recover damages against the respondent purely on the basis of the Third Party Cover. The respondent did not deny the existence of the cover but maintained that it did not extent to the nature of claim that the appellant was pursuing.
In the end this court finds that the appeal has no merit and is therefore dismissed. The appellant is not without remedy for she still has every right to pursue the judgment creditor in Milimani Small Claims Court E1108 of 2023 , Mercy Moraa Bosire Vs Fredrick Mukuvi Kiilu.
It is so ordered.