LION OF KENYA INSURANCE COMPANY LTD v TRINITY PRIME INVESTMENTS LTD [2000] KECA 392 (KLR)
The bottom line
#Kenya's Court of Appeal ruled an insurance company could defend a Kshs.6.7 million fire claim because the settlement paperwork was ambiguous and needed a full trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the discharge voucher executed by the respondent was an absolute release or a conditional discharge of the appellant's liability
- 2.Whether the appellant's proposed defence raised triable issues requiring leave to defend under O.XXXV rules 1 and 2 of the Civil Procedure Rules
- 3.Whether the interests insured by the appellant and by Madison Insurance Company were the same, so as to engage the rateable proportion indemnity clauses
- 4.Whether section 49 of the Transfer of Property Act applied so that the respondent's claim lay against Madison, and whether its conditions had been satisfied
Key legal issues
#Whether the discharge voucher was an absolute or conditional discharge
The voucher was ambiguously worded and its construction, possibly with oral evidence, was a triable issue unfit for summary determination
The opening sentence made payment subject to the appellant's own approval, which was incoherent if the release were absolute. The party to be bound signed it, its drafter was unknown, and the respondent afterwards still demanded the balance. The Court held the document's import might require oral testimony, so the defence on this ground required investigation.
Whether the rateable proportion clause applied given possibly differing insured interests
Whether the interest insured by the appellant was the same as that insured by Madison was a question of fact requiring oral evidence
The respondent claimed its interest was ownership while Madison's cover was limited to Stone Crest's indebtedness to the Bank. Since the clause applies only where the interests insured are the same, and the parties disagreed, evidence was needed to establish the distinction between the two interests before liability could be apportioned.
Application of section 49 of the Transfer of Property Act
Section 49 could only assist the appellant if specified matters, including a demand by the transferee for money actually received under the transferor's policy, were established
The section permits a transferee to require insurance monies received by the transferor to be applied to reinstatement, absent contrary contract. It was unknown whether the property had been transferred to the respondent or whether the requisite demand had been made, so the extent of the appellant's liability required investigation.
Summary judgment standard
Leave to defend must be granted where the defence raises issues requiring investigation; only a defendant with no defence or a sham defence is shut out
Under O.XXXV rule 2(1) a defendant may show by affidavit, oral evidence or otherwise that he should have leave to defend. Because multiple triable issues arose on the discharge voucher, the insured interests, section 49 TPA and the non-joinder of the Bank and Madison, the trial judge should have granted unconditional leave.
Legal principles established
#- On an application for summary judgment, if a defendant's defence raises issues requiring investigation, the court is obliged to grant leave to defend, conditionally or unconditionally
- A sham defence is one proffered merely for delay; a defendant with no defence or only a sham defence will not get leave
- A rateable proportion indemnity clause applies only where the interests insured under the concurrent policies are the same
Court orders
#- 1.Appeal allowed
- 2.Summary judgment of 24th March 1999 for Kshs.6,776,471 set aside
- 3.Substituted order granting the appellant unconditional leave to defend the suit
- 4.Costs of the appeal and of the summary judgment application to abide the outcome of the suit in the superior court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2134 of 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal against a High Court summary judgment (no specific constitutional/statutory provision stated in the judgment)
Relief refused
#Determination of the meaning and application of the rateable proportion clause on appeal
The Court declined to decide the substantive insurance issues, remitting them to the trial court
Costs
Costs of the appeal and of the summary judgment application to abide the outcome of the suit in the superior court
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
If, however, a defence put forward by a defendant raises some issue or issues which require investigation then the court is obliged to grant leave to defend, and depending on the facts and circumstances of the case, the leave may be either conditional or unconditional
A sham defence is one in which pleas are proffered merely for the purpose of delay
It was common ground that the rateable proportion indemnity clause would only apply where the interest insured by the two or more insurance companies concerned is the same
In the result, we allow the appeal, set aside the order dated 24th March, 1999, granting the respondent summary judgment for Kshs.6,776,471 and substitute it with an order granting the appellant unconditional leave to defend the suit
we order that the costs of the appeal and of the summary judgment application abide the outcome of the suit in the superior court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Prakash Heda v Jane Wanja Miriti [2017] KEELC 3624 (KLR)[2017] KEELC 3624 (KLR)27 Jan 2017applied
Cite this brief
#Cite this brief
Caselaw, "LION OF KENYA INSURANCE COMPANY LTD v TRINITY PRIME INVESTMENTS LTD [2000] KECA 392 (KLR)", Case Analysis (2000). Civil Appeal No. 120 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/392/eng@2000-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.