Octagon Private investigation Security Services v Lion of Kenya Insurance Co. [1994] KECA 105 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a supporting affidavit is required or permissible on an application under order VI rule 13(1)(a)
No. Rule 13(2) bars evidence on such an application; attaching a supporting affidavit would introduce barred evidence. Only the plaint is examined.
Rule 13(2) provides that no evidence shall be admissible on an application under sub rule (1)(a). The court endorsed the holding in Nyagah v Nyamu that in dealing with a submission of no cause of action only the plaint is looked at. A supporting affidavit would constitute evidence and is therefore impermissible.
Whether subrogation under a contract of insurance confers a direct right of action by the insurer against third parties
No. Subrogation merely transfers the insured's rights to the insurer, exercisable only on behalf of and in the name of the insured; it does not create privity between insurer and third party.
The court held the respondent's claim of suing in its own right under subrogation was wholly false. Citing Byamugisha's Elements of Insurance Law in East Africa and Rahemtulla and Premji v Bishen Singh, the court affirmed that the insurer takes over the insured's rights and must sue in the insured's name.
Whether the plaint disclosed a reasonable cause of action against the appellant
It did not. No privity of contract between the parties was pleaded, and none could arise by subrogation, so the plaint should have been struck out.
On a fair reading of the plaint alone, there was no plea of privity between the respondent and the appellant. The judge erred in deferring the matter to trial evidence since no evidence was needed; the chamber summons ought to have been allowed and the plaint struck out.
Legal principles established
#- In dealing with a submission of no cause of action under order VI rule 13(1)(a), only the plaint is to be looked at; no evidence, and hence no supporting affidavit, is admissible.
- The right of subrogation under a contract of insurance does not create privity of contract between the insurer and third parties; the insurer may enforce the insured's rights against third parties only on behalf of and in the name of the insured.
Court orders
#- 1.Appeal allowed
- 2.Orders of Khamoni, J dismissing the chamber summons set aside
- 3.Substituted order allowing the appellant's chamber summons and striking out the plaint as disclosing no reasonable cause of action
- 4.Costs of the High Court and of the appeal awarded to the appellant
- On appeal from
- High Court of Kenya at Eldoret
- Not stated in the judgment
- Jurisdiction invoked
- Not expressly stated; first appeal to the Court of Appeal against an interlocutory order of the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Octagon Private investigation Security Services v Lion of Kenya Insurance Co. [1994] KECA 105 (KLR)", Case Analysis (1994). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1994/105/eng@1994-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.