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Court of AppealDismissedCivil Appeal No. 107 of 1997

Blueshield Insurance Co. Ltd v Raymond Buuri M'Rimberia

Court of Appeal
27 May 1998
1,985 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Court of Appeal (Gicheru, Akiwumi and Pall JJ.A) dismissed an appeal by Blueshield Insurance Co. Ltd against a High Court judgment (Ole Keiwua J, 20 July 1995) striking out the insurer's defence in an enforcement suit and entering judgment against it for Shs.571,324.80, being the amount of a judgment the respondent had obtained against the insured (a matatu owner) for the death of his wife, a fare-paying passenger. The insurer's defence was that the policy was a motor commercial policy excluding passenger liability, obtained by non-disclosure, and that the risk was not a third party risk under s.5(b) of Cap 405. The insurer had also filed a separate declaratory suit in 1986 seeking to avoid the policy, which remained pending and unprosecuted some 12 years later. The Court held that once a s.5(b) statutory liability is covered by the policy, s.10(1) obliges the insurer to satisfy the judgment notwithstanding any right to avoid or actual avoidance vis-à-vis the insured. The s.10(4) exemption applies only where the insurer has both commenced a timely action and actually obtained a declaration of entitlement to avoid; a pending suit does not suffice. Further, no mandatory notice under the proviso to s.10(4) had been given, so even a declaration would not have availed the insurer against the respondent. The appeal was dismissed with costs, affirming the judgment below.

Key legal issues

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01

Whether the defence disclosed triable issues

Holding

The defence disclosed no triable issues; striking out the defence and entering judgment was justified.

Reasoning

The appellant did not deny that the vehicle was insured with it or that statutory notice was given. Its only defence was the policy type and the pending declaratory suit. Neither raised a triable issue because s.10(1) liability is not displaced by an unobtained declaration, and the proviso's notice requirement was unmet. The trial judge's discretion was therefore properly exercised.

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02

Scope of s.10(1) and s.10(4) of Cap 405

Holding

Insurer's obligation to pay the third party judgment subsists notwithstanding avoidance rights, unless the s.10(4) declaration has actually been obtained in time with proper notice.

Reasoning

Section 10(1) obliges the insurer to pay sums payable under a judgment on a s.5(b) liability notwithstanding entitlement to avoid or actual avoidance. Section 10(4) is the only exception and is construed strictly: both a timely action and an obtained declaration are required, plus notice under the proviso for earlier-commenced proceedings. The declaratory suit, filed 12 years earlier and never prosecuted, satisfied neither condition.

p. 3

Legal principles established

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  • Once statutory liability under s.5(b) is covered by the terms of the policy, the insurer must satisfy the judgment under s.10(1) notwithstanding any right to avoid or cancel the policy vis-à-vis the insured.
  • The s.10(4) exemption requires both commencement of a declaratory action within the prescribed time AND actual obtention of a declaration; a pending suit does not suffice.
  • Failure to give the mandatory notice under the proviso to s.10(4) deprives the insurer of the benefit of any declaration as against judgments in earlier proceedings.

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.Judgment of Ole Keiwua J striking out the defence and entering judgment as prayed in the plaint with costs of the suit and the application affirmed
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2118 of 1994
Jurisdiction invoked
First appellate jurisdiction over the High Court under the Constitution (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Blueshield Insurance Co. Ltd v Raymond Buuri M'Rimberia", Case Analysis (1998). Civil Appeal No. 107 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/280/eng@1998-05-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.