Automated Summary
Key Facts
This case involves Jane Aoko Owino (plaintiff) and Blue Shield Insurance Co. Ltd (defendant). A preliminary objection was raised regarding the defendant's counsel, Mr. Kasamani, swearing an affidavit on contested matters. The main issue was whether the plaintiff served the defendant with a statutory notice under Section 10(2) of the Insurance Act (Cap 405) before or within 14 days of the suit. The plaintiff admitted in their replying affidavit that the notice was initially served incorrectly and later sought leave to serve it out of time under Sections 27 and 28 of the Limitations of Actions Act. The court found these facts undisputed and dismissed the preliminary objection with costs, noting that the dispute centers on the entitlement to extend the service period.
Issues
The core legal issue centered on the validity of service of a statutory notice under Section 10(2) of the Insurance (Motor Vehicle Third Party) Risks Act (Cap 405) to the defendant, Blue Shield Insurance Co. Ltd. The court examined whether the plaintiff properly served the notice before or within 14 days of the suit's commencement, as required by law. Additionally, the issue of whether the plaintiff could retroactively seek leave to serve the defendant out of time under Sections 27 and 28 of the Limitations of Actions Act was contested. The judge determined that the preliminary objection raised by the plaintiff regarding the defendant's advocate swearing to contested matters was without merit, dismissing it with costs and confirming that the factual disputes about service compliance remained valid for trial.
Holdings
The court dismissed the preliminary objection, finding it without merit. The judge ruled that the advocate's affidavit did not deponent to contested matters and that the issue of service of notice under Section 10(2) of Cap 405 remained disputed. The court determined the defendant was not entitled to set aside the judgment based on the advocate's affidavit.
Remedies
- The matter was postponed for hearing to 02/02/2004 in accordance with the court's order.
- The interim orders previously in place were extended to remain effective until the hearing date of 02/02/2004.
- The court awarded costs in favor of the plaintiff following the dismissal of the defendant's preliminary objection.
Legal Principles
The court addressed the admissibility of affidavits sworn by advocates, holding that advocates may depose to uncontested factual matters in the court file and legal arguments. However, advocates cannot swear to contentions matters in dispute. The ruling clarified that the defendant's advocate's affidavit, which referenced factual records and legal interpretations, was admissible, while the core issue of whether the plaintiff was entitled to extend service time under the Limitations Act remained a matter for trial.
Cited Statute
- Limitations of Actions Act
- Civil Procedure Rules
- Insurance (motor Vehicle Third Party) Risks Act
Judge Name
B.K. Tanui
Passage Text
- In paragraphs 2,3 and 4 of his replying affidavit Mr. Orengo admitted that the plaintiff did not serve the defendant as laid down in the said Act and that in fact M/S Blue Shield Insurance Company Ltd was wrongly served with the notice and that much later on when the error was discovered an application for leave to serve it out of time was made...
- The issue which Mr. Orengo for the plaintiff claimed to be in dispute is whether the defendant was served with a notice in terms of section 10(2) of Cap 405 which is before or within 14 days after commencement of the suit in which judgment was given.
- Apart from the above dispute I find that the preliminary objection raised in this case is without merit and accordingly I dismiss it with costs.