1.By a plaint dated 25th September 2015, the plaintiff sued the Defendant and sought the following prayers;-a)A declaration that the Defendant is in breach of the Insurance contract held by the plaintiff.b)A declaration that the Defendant is liable to indemnify the plaintiff for loss and damage to his motor vehicle registration number KBT 194 S under insurance policy number 012/03311/0092/98/2012/12C.
2.It was pleaded that at all material times, the plaintiff was the registered owner of motor vehicle registration number KBT 194 S which was insured by the Defendant and which motor vehicle was involved in a road traffic accident on 6th June 2013 along Nyahururu- Nyeri Road upon which the plaintiff notified his Brokers Ms Chase Bank who were the financiers of the same and who were the defendants known agent, who then notified the plaintiff to tow the motor vehicle to Nairobi for repairs.
3.While the motor vehicle was being driven to Nairobi for repairs on 24th June 2013, the same suddenly lost power while uphill at 49 Kambiti area along Kenol Sagana road and rolled severally and was damaged beyond repairs and that despite demands made the defendant indicated that it will not honour the policy and or indemnify the plaintiff for the loss.
4.By a statement of defence dated 9th December 2015 the defendant admitted having insured the subject motor vehicle but stated that despite the motor vehicle being involved in an accident on 6th June 2013, the plaintiff concealed the said fact to the defendant contrary to the provisions of the policy and that if the motor vehicle was immobile on the said date, it could not have been driven on the 24th June 2013.
5.It was contended that despite the fact that the plaintiff reported the accident of 24th June 2013, the report was marred by misrepresentation and was actuated by bad faith with the intent to cover up the accident of 6th June 2013, which act amounted to breach of the policy terms for which it was entitled to void the contract.
6.Based on the pleadings herein, the matter proceeded for hearing by way of oral evidence at which the plaintiff PW1 Francis Njogu Njihia confirmed and adopted his witness statement and list of documents and stated that the defendant did not pay for his motor vehicle which he had bought on loan, leading to him being reported to the credit reference bureau. He stated further that he did not agree with the content of the investigation report upon which the defendant declined to compensate him for the loss.
7.In cross examination he stated that on 6th June 2013 while on safari he was told that his motor vehicle had been involved in road traffic accident and that his manager reported to the police for which he was given a police abstract dated 19th June 2013, he was then told to take the motor vehicle to a garage in Nairobi for repairs by the defendants Agents, he thereafter recorded his statement with the Defendant agent and that by a letter dated 5th November 2013, the defendant indicated that it was not going to pay for the loss of the motor vehicle which he bought at the sum of Kenya shillings three million five hundred thousand .
8.On behalf of the defendant DW1 Lydia Wairimu a Claims Manager adopted her statement and testified that the plaintiffs motor vehicle had an accident on 6th June, 2013 and another one on 24th June but only reported the accident of the 6th and upon looking at the damage they an Investigator, from his investigations they discovered that the motor vehicle was not motor able from 6th since there was nothing to show that it had been repaired to allow it to be driven.
9.She contended that if the motor vehicle was driven, thereafter then the plaintiff was in breach of the principle of utmost good faith for not disclosing that the motor vehicle had an accident on the 6th and that there was misrepresentation on the part of the plaintiff and that the police abstract issued on 19th indicated that the report was made on 13th but they only learned of the accident when he reported on 24th. Further the police abstract indicated that the driver was Peter Kamau and not Leacky Ondieki, that the plaintiff only indicated the accident of 24th on the claim form and not the accident of 6th, therefore failing to make full disclosure.
10.In cross examination, she stated that they based their decision not to settle the claim based on the investigation report and that they only got to know of the first accident trough the investigation report but stated that it is possible that the accident was reported to their Nyahuruhu office and that the report indicated that the motor vehicle did not have any pre accident defect.
11.On behalf of the plaintiff it was submitted that the investigation report confirmed that the first accident was reported by the plaintiffs Manager to the Nyahururu office, who instructed a garage owner to inspect the motor vehicle and gave his finding and that the plaintiff subsequently reported the accident to the defendants authorized Agent where he filed the claim forms and that the defendant did all that was expected on his part to notify the defendant.
12.On the issue of non-disclosure, it was submitted that the plaintiff in his letter dated 24th November 2013 indicated who the driver of the motor vehicle was at the time of the second accident to the defendant. It further contended that the defendant did not prove its claim of none disclosure or misrepresentation of material facts and that as was stated in the case of Elius Gachii Karanja v Concord Insurance Company Ltd  e KLR the law is already sufficiently tender to insurers who seek to avoid contract for innocent non-disclosure and it is not unfair to require insurers to show that they have suffered as a result of non-disclosure. Of course they suffer if the risk matures but that risk is accepted by every insurer.
13.It was contended that failure to report an accident is not a ground sufficient for an insurance to avoid its obligations under the contact of insurance as was stated in the case of Pacis Insurance Company Ltd v Mohamed F Hussein  eKLR.
14.On whether the defendant was liable to honour the claim, it was contended that the people whose statements the defendant relied upon the decline the claim where not called as witnesses and that the investigation report by the defendant indicated that the motor vehicle did not have any pre accident defect before the second accident and that most of those witnesses were a creation of the investigator so as to assist the defendant void the contract and that the investigation was wanting as was stated in the case of Pacis Insurance Company Ltd v Outreach Community Centre & Another  eKLR.
15.On behalf of the defendant it was that the relief sought by the plaintiff was incapable of being awarded as the same has not been pleaded as the same failed to plead the particulars of breach of contract as provided for under order 2 Rule 10 of the Civil Procedure rules and as was stated in the cases of Barclays Bank of Kenya Ltd v Mema KEHC 333(KLR) and China Overseas Engineering Company Ltd v Isaac Kitchwen Kijo  eKLR , it was contended that the plaintiff failed to prove that he was the registered owner of the subject motor vehicle , valuation report towing receipts and the neither did he call the driver to corroborate his evidence in court.
16.It was contended that the plaintiff failure to prove the breach of contract would not entitle him for the remedy sought.
Analysis and Determination
17.From the pleadings and the procedings before the court, the following facts were not disputed. That the plaintiff had an insurance cover with the defendant over motor vehicle registration number KBT 194 S and the said motor vehicle was involved in two road accidents one on the 6th of June 2013 which was reported at Karai Police station on 13th June 2013 as per the copy of the police abstract issued on the same date and that the said motor vehicle was involved in another accident on 24th June while being driven to Nairobi for the purposes of repairs arising out of the said accident, which accident was reported to the police on 29th June 2013 as per the police abstract attached to the plaintiffs witness statement .
18.The only issue ibn dispute is whether the plaintiff reported the accident of 6th to the defendant and if not is the defendant entitled to void the contract?
19.From the evidence tendered before the court, it is clear that the accident of 6th was reported to the defendant’s office at Nyahururu who gave instructions on what was to be done, this was confirmed by the defendant’s witness in court who confirmed that it was possible, thereby corroborating the evidence of the plaintiff. This is further confirmed by the defendant’s own investigation report; it is further clear to my mind that the plaintiff did not lodge any claim with the defendant in respect of the accident of 6th June which according to the witness statement of the driver had only broken the sixth wheel.
20.It is therefore my finding that the plaintiff having tendered evidence on a balance of probability that he made the report, the burden then shifted to the defendant to prove otherwise and at the close of the defence case the defendant failed to disapprove the said contention.
21.It therefore follows that the defendant cannot use the alleged failure to report the 1st accident to void the plaintiffs claim, there being no evidence that the said motor vehicle could not move after the 1st accident which was confirmed by the defendant’s own report which confirmed that there was no pre accident effect noted on the said motor vehicle and therefore find and hold that the defendant was and is under obligation to honour the terms of the contract of insurance which has not been disputed by the defendant.
22.I therefore find and hold that the plaintiff proved his case against the defendant on a balance of probability and therefor enter judgement against the defendant as follows;-a)A declaration that the defendant is in breach of the contract of insurance held by the plaintiff.b)A declaration that the defendant is liable to indemnify the plaintiff for the loss and damage to motor vehicle registration number KBT 194S under the insurance policy number 012/03311/0092/2021/12C.c)The plaintiff is entitled to the cost of this.
23.Before I pen off, as stated by the defendant the plaintiff did not specifically plaid what he has lost as a result of the breach herein above and neither did the same pray for an award of general damages and therefore decline to award any.
24.And it is ordered