PAN AFRICA INSURANCE COMPANY LTD & 2 others v CLARKSON & SOUTHERN LIMITED [2008] KEHC 2487 (KLR)
- Court
- High Court of Kenya
- Case number
- 2487
- Citation
- [2008] KEHC 2487 (KLR)
- Decided
- 23 May 2008
The court held that the defendant was not liable to the plaintiffs and further that the plaintiffs' loss is not covered by the professional indemnity policy.
Facts
The plaintiffs (PAN AFRICA INSURANCE COMPANY LTD, AMERICAN LIFE INSURANCE CO. LTD, and HERITAGE INSURANCE COMPANY LTD) claimed against the defendant (CLARKSON & SOUTHERN LIMITED) for Shs.15,000,000/= advanced by the bank to Silvester Holdings LTD (SHL) and guaranteed by each plaintiff proportionately. The defendant issued a third party notice against the third parties (KENYA NATIONAL ASSURANCE COMPANY LTD, INTRA AFRICA ASSURANCE COMPANY LTD, and JUBILEE INSURANCE COMPANY LTD) claiming indemnity for the plaintiffs' loss and damage under a professional indemnity policy dated 1st April, 1980.
Issues
- Are the Third Parties liable to indemnify the defendants under the policy of insurance referred to in the Third Party Notice in view of the following: (i) Repudiation of the claim by the Third Parties for breach of policy conditions by the defendant in failing to notify the Third Parties of the claim. (ii) Is the defendant’s claim covered under the policy? (iii) Is (ii) above applicable in all the circumstances of this case including repudiation of the claim by the Third Parties for breach of policy conditions? (iv) Are the Third Parties estopped from raising (ii) above and/or have they by their conduct and acts waived the same? (v) If the Defendants are entitled to be indemnified under the policy then in what amount? (vi) Who should pay the costs of the suit.
- The defendant had with leave of the court issued a third party notice against the three third parties (KNAC, INTRA AFRICA, JUBILEE respectively) claiming indemnity for the plaintiffs' loss and damage under a professional indemnity policy dated 1st April, 1980. On 18th February, 1991, Bosire J. ordered that the trial between the plaintiffs and the defendant should precede the trial between the defendant and the third parties.
Reasoning
The court re-stated the facts which gave rise to the plaintiffs' claim against the defendant and the tenor of the judgment delivered by the court.
Outcome
The court held that the defendant was not liable to the plaintiffs and further that the plaintiffs' loss is not covered by the professional indemnity policy.
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