Malike Co Ltd v Attorney General

High Court, at Nairobi April 13, 2000

Rawal, Commissioner of Assize

Civil Application No 3739 of 1995

Insurance – Commissioner of Insurance – powers of Commissioner – immunity against suit for anything done or intended to be done in good faith under the Insurance Act (cap 487)

By notice of preliminary objection dated February 28, 2000 the Attorney General sought that the suit filed against him on behalf of the Government of Kenya, Ministry of Finance averring only the tort of negligence on the part of the Commissioner of Insurance be struck out since it contravened section 168 of the Insurance Act (cap 487).

Held:

1. Bad faith or lack of good faith means dishonesty and should not be treated as synonym for an honest though mistaken consideration of an irrelevant factor.

2. Section 3 of the Insurance Act appoints the Commissioner of Insurance who is responsible for general administration of the Insurance Act and the performance of all the duties and functions assigned to him by or under the Act.

3. Section 168 of the Insurance Act gives protection to the Commissioner of Insurance for anything done or intended to be done in good faith under the Act.

Application allowed.

Cases

Cannock Chase District Council v Kelly [1978] 1 All ER 152

Texts

1. Saunders, J B (Ed) (1969) Words & Phrases Legally Defined London: Butterworths 2nd Edn

2. Stroud, R S (Ed) (1971) Stroud’s Judicial Dictionary of Words & Phrases London: Sweet & Maxwell

Statutes

1. Insurance Act (cap 487) sections 3, 168 (1) (2)

2. Interpretation and General Provisions Act (cap 2)

Advocates

Mr Wamalwa for the Plaintiff

Mr Imbambwa for the Defendant

Customary law – burial dispute –  deceased  wish to be interred/buried  in her piece of land  – defendant’s claim that he had a customary right to decide the deceased burial place - Luo customary law in regard to burial of a married woman – claim by the plaintiffs  that the defendant mistreated the deceased during her life time and therefore undeserving to bury her remains – effect of the deceased wish vis a vis luo customary law on burial – whether in the circumstances the deceased wish should be respected – Judicature Act section 3 (2).

Constitutional law- fundamental rights and freedom- breach of-torture by police contrary to sections 74(2) of the Constitution-alleged violation of right to liberty contrary to section 72 of the constitution- period of arraignment in court- constitutional reference after dismissal of appeal by High Court- whether the matter was funtus officio-limitation period in claims against the government under the Public Authorities Limitation Act-claim made 17 years after cause of action arose-doctrine of delay and laches in constitutional matters-damages- award of damages- whether damages could be awarded-the Constitution sections 72 and 74(2), Public Authorities Limitation Act (Cap 39) section 3

Civil Practice and Procedure-court proceedings-stay of-application to stay all proceedings in Milimani CMCC No. 11810 of 2004 pending the final determination of the appeal-appeal arising from an interlocutory application-procedure in such applications-application seeking to strike out lower court proceedings having been struck out-applicant wanting to stop the proceedings claiming that the lower court had no jurisdiction to hear such matters-inherent jurisdiction of the court-circumstances under which the inherent jurisdiction of the court was to be invoked-whether the applicant could have appealed without seeking the leave of the lower court from which the appeal arose-Civil Procedure Act section 3A and 63(3)Civil Procedure Rules order 41(4)

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[Ruling] Criminal practice and procedure – bail – application for bail pending appeal – principals the court considers before granting  an applicant bail pending appeal – whether the applicant  was entitled to bail pending appeal-Criminal Procedure Code section 357 (1)

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Family Law-probate and administration-grant- summons for confirmation of grant- application opposed-where some of the beneficiaries were not happy about the mode of distribution of the estate-effect of-court consideration-distribution ratio-court order