Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal No 225 of 2005· [2016] KECA 280 (KLR)

Gateway Insurance Co. Ltd v Catherine Ndinda [2016] KECA 280 (KLR)

Court of Appeal of Kenya
12 August 2016
1,864 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed insurers must pay judgments against their insured where the policy covered the injured passenger, even under statutory exceptions.

What this practically means

#

Executive summary

#
The Court of Appeal (Githinji, Warsame & Mwilu, JJ.A) dismissed the insurer's appeal against a High Court declaratory judgment (Rawal, J., dated 6 February 2001) ordering Gateway Insurance Co. Ltd to settle the decretal sum of Kshs 852,000, with taxed costs and interest, awarded to the respondent widow whose husband died as a passenger in the insured private vehicle KAA 277E. The insurer argued that the deceased was an excepted person under section 5(b)(ii) of the Insurance (Motor Vehicle Third Party Risks) Act, which permits policies not to cover persons carried in the vehicle, and that the policy should be read strictly in line with the statutory minimum cover. The Court held that section 5(b) merely relieves an insurer of the obligation to cover passengers but does not prohibit it from doing so; here, section II of the policy indemnified the insured against death or bodily injury of any person, excepting only persons injured in the course of their employment by the insured. Since the deceased was a passenger in a private vehicle and not within the policy's employment exception, he was a third party within the meaning of the Act. Section 10(1) of the Act therefore obliged the insurer to satisfy the undisputed judgment against the insured, including costs and interest, notwithstanding any entitlement to avoid or cancel the policy. The appeal was dismissed with costs to the respondent.

Key legal issues

#
01

Scope of section 5(b) exceptions to third party cover

Holding

The exceptions in section 5(b) are permissive, not prohibitory; the insurer and insured may extend cover to excepted classes, making them third parties under the Act.

Reasoning

Section 5 stipulates that a valid policy need not cover persons listed under section 5(b), but the section neither obligates nor prohibits coverage of those persons. Section II of the policy covered death or bodily injury of any person, excepting only those injured in the course of employment by the insured. The vehicle was private and the deceased fell outside the policy exceptions; the parties' contract thus extended cover to him, making him a third party within the meaning of the Act.

p. 3
02

Insurer's liability under section 10(1) once judgment is obtained against the insured

Holding

Once a valid judgment is held against the insured for a liability covered by the policy, the insurer must pay it, including costs and interest.

Reasoning

Section 10(1) applies where judgment is obtained for a liability covered by the terms of the policy, notwithstanding that the insurer may be entitled to avoid or cancel the policy. The respondent held an undisputed valid judgment of Kshs 852,000 against the insured for a liability covered under section II of the policy. The appellant was therefore statutorily required to satisfy that judgment, and the declaratory suit was properly decreed.

p. 3

Legal principles established

#
  • Section 5(b) of the Insurance (Motor Vehicle Third Party Risks) Act relieves an insurer of the obligation, but does not prohibit it, from covering passengers in the vehicle; where the policy actually covers such persons they are third parties within the Act.
  • Where the policy covers a liability, section 10(1) of the Act obliges the insurer to satisfy a judgment against the insured notwithstanding avoidance or cancellation of the policy.

Court orders

#
  1. 1.Appeal dismissed with costs to the respondent.
  2. 2.Appellant required to satisfy the judgment obtained by the respondent against the insured under section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act.

Authorities

#

Legislation

  • Insurance (Motor Vehicle Third Party Risks) Actsection 4
  • Insurance (Motor Vehicle Third Party Risks) Actsection 4(2)
  • Insurance (Motor Vehicle Third Party Risks) Actsection 5
  • Insurance (Motor Vehicle Third Party Risks) Actsection 5(b)
  • Insurance (Motor Vehicle Third Party Risks) Actsection 5(b)(ii)
  • Insurance (Motor Vehicle Third Party Risks) Actsection 10(1)
  • The policy document, section IIsection II

Cases cited (1)

  • Corporate Insurance Company Ltd v Elias Okinyi Ofire
    [1999] eKLR (Civil Appeal No. 12 of 1998)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No 5806 of 1993
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (Insurance (Motor Vehicle Third Party Risks) Act context; appellate jurisdiction over High Court decrees)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Gateway Insurance Co. Ltd v Catherine Ndinda [2016] KECA 280 (KLR)", Case Analysis (2016). Civil Appeal No 225 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/280/eng@2016-08-12

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