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|Case Number:||Criminal Application 10A of 2006|
|Parties:||GENERAL ACCIDENT INSURANCE CO. LTD v FRANCIS MUCHOI NG’ANG’A|
|Date Delivered:||04 Oct 2010|
|Court:||High Court at Busia|
|Judge(s):||David A Onyancha|
|Citation:||GENERAL ACCIDENT INSURANCE CO. LTD v FRANCIS MUCHOI NG’ANG’A  eKLR|
|Case History:||From the judgement and Order of J.R. Ndururi, in Busia Civil Siut No. 345 of 2005|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
Criminal Application 10A of 2006
GENERAL ACCIDENT INSURANCE CO. LTD…………APPLELLANT
FRANCIS MUCHOI NG’ANG’A…………………………RESPONDENT
(From the judgement and Order of J.R. Ndururi, in Busia Civil Siut No. 345 of 2005 )
The responded filed a suit against the appellant seeking a declaratory judgement and order directing the Appellant to pay the Respondent asum of kshs 194,762/= in satisfaction of Busia Senior Resident Magistrate’s Court Civil case NO. 42 of 2002 together with interest thereof since 12.7.05. The Defendants in the above cited suit were, first, Charles Oluoch and second, Equator Bottlers Ltd. The said Charles Oluoch had failed to enter appearance and defence in the case of judgment in default which was eventually assessed at Ksh s 194,792/= as general damages, was entered for the plaintiff/ Respondent herein. The claim against the Defendant, Equator bottlers Ltd., was dismissed on the basis that the Plainttiff / Respondent, had failed to prove that the motor vehicle Reg. No. KZS 683, Isuzu Lorry, at the material time being driven by the said Charles Oluoch, belonged to the said Equator Bottlers Ltd.
It later transpired however, that in correspondence between the Plaintiff / Respondent and Appellant herein , Appellant had in response to a demand notice under the Act ,admitted that it had insured the said motor vehicle at the request of the said Equator Bottlers Ltd . Who was their insured. The letter from the Operations Manager, Mrs Hellen Omiti Machora, to F.O. Wanga & Company Advocates dated 12.2.02 had stated inter-alia.
“Kindly note that our insured’s vehicle was a commercial vehicle with no passenger liability cover and therefore your client was traveling in the said vehicle illegally , and at his own risk and on frolic of his own. We would like to inform you that liability is denied ad any legal action taken against our insured will rigorously defended”
The letter in its topic heading had clearly stated thus-
In Busia, PMCC No. 345 of 2005 from which this appeal arises, the Respondent however, produced the demand letter from the Respondent’s advocates as well as the Appellants reply already quoted hereinabove to prove that the Appellant had insured the motor vehicle above mentioned and that it had so admitted and should not be heard to deny it. The Respondent accordingly filed an application seeking to strike out the defense filed by the Appellant based on denial of existence of such insurance cover and non-ownership of the motor vehicle. It further tried to argue that the contents of the quoted letter had been written on a “without-prejudice-basis” and that the trial court should not rely on it.
However, on a very well reasoned ruling, the trial court first struck out a replying affidavit filed by the Appellant for good reasons therein given which this court approves and upholds. That striking out of the replying affidavit, in this court’s view, left the application seeking striking out of defense, uncontrolled. But the trial magistrate nevertheless went ahead to support the course of his action by other additional grounds. He found as a fact that the correspondence earlier cited had actually been exchanged. He concluded that a Notice under Section 10 (2) (b) of Cap 405 had been properly served, and acknowledged by the Appellant. He found also that the receipt of such notice cannot be on a without-prejudice basis. Once received, it is received. The trial court further accepted that the Appellant sufficiently admitted that there was an insurance cover over the operation of the relevant motor vehicle at the time of the accident. The court also lastly observed that while no judgment stood against the Appellant out of Civil case No. 42v of 2002, nevertheless one stood against the driver of the motor vehicle Reg. No. KZS 683. He quoted S. 10 (1) of Cap 405, which states:–
I have carefully considered each ground of appeal herein. I am satisfied that the Lower court properly approached the application before it. He made findings of fact that the court did not misdirect itself. It was indeed in a better position to judge those facts as the facts were argued before it and the court was placed in a more advantaged position to judge them. In ant case, this court most likely would have come to the same conclusions. In addition, as earlier stated, the struck out replying affidavit left the application before court uncontroverted which then entitled the court to come to the decision it did on that ground alone it also relied on the facts before it.
Upon the above grounds, this court finds no merit in this appeal. The appeal is dismissed with costs.
DATED and DELIVERED at Busia this 4TH day of October 2010
D .A ONYANCHA