INTRA AFRICA ASSURANCE COMPANY LIMITED vs SIMON N. NJOROGE AVERTANO DA COSTA [1997] KECA 119 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed insurers only need to file a policy-avoidance suit within three months — they don't need the court's declaration within that window.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act requires an insurer to obtain a declaration that it is entitled to avoid the policy either before or within three months after the commencement of the proceedings in which the judgment sought to be enforced was given
- 2.Whether the trial Judge erred in construing section 10(4) as requiring the declaration to be obtained within three months of the filing of the declaratory suit
- 3.Whether the trial Judge, having granted the declaration as prayed, was entitled to express an opinion on whether the declaration would protect the insurer against third parties satisfying the requirements of section 10
Key legal issues
#Interpretation of section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act (Cap. 405)
Section 10(4), an exception to the general rule in section 10(1), requires only that the insurer's action for a declaration be commenced before or within three months after the commencement of the proceedings in which the judgment was given; it does not require the declaration itself to be obtained within that period.
The court applied the plain meaning of section 10(4), which provides that no sum shall be payable by an insurer if, in an action commenced before or within three months after the commencement of the relevant proceedings, he had obtained a declaration of entitlement to avoid the policy. The court held the sub-section cannot be read as imposing a precondition that the declaration be obtained within that window; the temporal requirement attaches to the commencement of the action, not to the obtaining of the declaration.
Whether the trial Judge's remarks protecting third parties under section 10 were sustainable
The remarks were gratuitous, as no issue on the effect of the declaration against third parties was before the trial court, and were set aside.
Having granted the declaration as prayed in the plaint and found for the appellant on the issues before him, the trial Judge should not have expressed an opinion on whether the declaration would protect the appellant against third parties satisfying the requirements of section 10. That issue was not pleaded or argued before him, so the opinion was purely gratuitous and had to be set aside on appeal.
Legal principles established
#- Section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act does not lay down a precondition that the declaration of entitlement to avoid the policy must be obtained either before or within three months of the commencement of the proceedings in which the judgment sought to be enforced was given; the action must merely be commenced within that period.
- A trial court should not express an opinion on an issue that was not pleaded or before it; such a holding is gratuitous and will be set aside on appeal.
Court orders
#- 1.The appeal is allowed
- 2.The gratuitous opinion of the trial Judge that the declaration only entitles the plaintiff to claim indemnity from the defendant but in no way protects it against third parties who are able to satisfy the requirements of section 10 is set aside
- 3.The appellant shall have three fourths of the costs of the appeal against the 1st respondent
- 4.No order of costs is made against the 2nd respondent as he did not oppose the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2761 of 1983
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (statutory appellate jurisdiction; no specific provision cited in the judgment)
Relief refused
#Costs against the 2nd respondent
The 2nd respondent did not oppose the appeal
Costs
The appellant shall have three fourths of the costs of the appeal against the 1st respondent; no order of costs against the 2nd respondent.
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.
With respect to the learned trial Judge this sub-section cannot be interpreted as laying down a precondition that the aforesaid declaration must be obtained either before or within 3 months of the commencement of the proceeding in which the judgment sought to be enforced was given.
In the result we allow the appeal and set aside the gratuitous opinion of the trial Judge namely, "the declaration entitles the plaintiff to claim indemnity from the defendant but in no way protects it against third parties who are able to satisfy the requirements of s.10 above."
The appellant shall have three fourths of the costs of the appeal against the 1st respondent. As the 2nd respondent did not oppose the appeal we do not make any order of costs against him.
Issues in the judgment
#The judgment is dated and delivered 'at Nairobi this day of 1997' with the specific day and month omitted from the delivery clause, so the exact date of judgment cannot be ascertained from the text.
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.
- CO-OPERATIVE BANK OF KENYA LTD v WASHINGTON OTIENO OGINDO [2012] KECA 179 (KLR)[2012] KECA 179 (KLR)22 Mar 2012
Cite this brief
#Cite this brief
Caselaw, "INTRA AFRICA ASSURANCE COMPANY LIMITED vs SIMON N. NJOROGE AVERTANO DA COSTA [1997] KECA 119 (KLR)", Case Analysis (1997). Civil Appeal No. 41 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/119/eng@1997-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.