BLUE SHIELDS INSURANCE CO. LTD v ROMA SCRAP METAL DEALDERS LTD [2006] KEHC 2135 (KLR)
- Court
- High Court of Kenya
- Case number
- 2135
- Citation
- [2006] KEHC 2135 (KLR)
- Decided
- 18 May 2006
The appeal is allowed, the judgment of the subordinate courts is set aside, and the defence is reinstated. The parties are to proceed to full trial.
Facts
The respondent insured his vehicle with the appellant. A suit was filed against the respondent in another lower court case for damages in tort. Judgment was entered against the respondent. The respondent then served the appellant by way of a declaratory suit on grounds that they were to indemnify the respondent for not defending them. A defence was filed, and the appellant appealed.
Issues
- Whether the trial magistrate erred in striking out the defence
- Whether the appellant was notified of the accident and the suit
Reasoning
The court finds that the trial magistrate evoked order 6 r 13 Civil Procedure Rules on summarily striking out the defence whilst there were triable issues on the face of the record. In an insurance claim, when an accident is reported, excess is to be paid and claim forms filled, which was not done by the appellant.
Outcome
Appeal allowed
Orders
- The judgment of the subordinate courts is set aside
- The defence is reinstated
- Parties to proceed to full trial
Remedies
- Proceed to full trial
Authorities cited
Legislation (1)
- Order 6 r 13 Civil Procedure Rules
Cases cited (1)
- Achkay Holding Ltd v N.M. Shah Trading as Braidwood Colledge CA 187/94 Gachui, Akiwumi & Tunoi JJA
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