Blueshield Insurance Co. Ltd v Raymond Buuri M'Rimberia
The bottom line
#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 appellant's defence in the enforcement suit disclosed triable issues justifying trial
- 2.Whether the respondent was suing in respect of a third party risk envisaged by s.5(b) of the Insurance (Motor Vehicles) Third Party Risks Act
- 3.Whether the pending declaratory suit under s.10(4) of the Act exempted the insurer from liability to satisfy the judgment
Key legal issues
#Whether the defence disclosed triable issues
The defence disclosed no triable issues; striking out the defence and entering judgment was justified.
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.
Scope of s.10(1) and s.10(4) of Cap 405
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs
- 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
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. 2118 of 1994
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution (not expressly cited in the judgment)
Relief refused
#Setting aside the striking out of the defence and the judgment entered against the appellant
No triable issues; s.10(4) exemption unavailable as no declaration had been obtained and no mandatory notice under the proviso was given
Costs
Appeal dismissed with costs to the 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.
I am satisfied that there are no triable issues to go to trial in the defence. I am also satisfied that the Plaintiff herein was suing in respect of the third party involved and irrespective of what becomes of the insured and the insurer, the claim of this third party has to be met by the defendant.
the liability of the insurer to satisfy the judgment under s.10(1) is excluded only if, not only that the insurer had commenced an action within the time scale prescribed thereunder, but also that it has obtained a declaration that it is entitled to avoid its liability under the insurance policy.
For these reasons we hold that the trial Judge was fully justified in striking out the appellant's defence and entering judgment against it, as he did. We do not find any merit in the appeal and hereby dismiss it with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.