Apa Insurance Limited v Peninah Mbithe David & 2 others [2015] KEHC 6480 (KLR)

Facts

Peninah Mbithe David and Teresiah Nyokabi Nganga obtained a decree in the sum of Kshs. 704,019/= in CMCC No. 593 of 2004 against Benson Ndwiga, an insured with APA Insurance. The 1st and 2nd respondents filed a declaratory suit against APA Insurance and Pan African Insurance Co. Ltd in CMCC 872 of 2009.

Issues

1. Whether the learned magistrate erred in law and fact by striking out the appellant's defence
2. Whether the learned magistrate erred in law and fact in failing to find that there was no nexus between the appellant and the third respondent
3. Whether the learned magistrate erred in law and fact in holding that the appellant and the third respondent were jointly and severally liable despite them being two separate legal entities
4. Whether the learned magistrate erred in law and fact by failing to expunge privileged communication from the record
5. Whether the learned magistrate erred in law by entering judgment for the sum of Kshs. 704,019/= plus interest and costs when the same was not awardable

Reasoning

The court found that the learned magistrate erred in law and fact by striking out the appellant's defence and judgment. The court also noted that the appellant and the third respondent genuinely believed they were not liable to pay the sum awarded.

Outcome

Appeal successful, judgment and orders set aside

Authorities cited