A businesswoman has sued INVESCO Assurance Co. Limited and Family Bank Limited over foul play insurance payment after her motor vehicle was involved in an accident.
Eunice Ngina Kimemia accuses INVESCO and Family Bank Insurance Agency Ltd which is also a respondent in the suit of concealing information that there were other forms that she ought to have filled to address the third party claim covered by INVESCO, an omission that infringed on her right to property ownership under article 40 as well as that in article 46 on her rights to protection of economic interests as a consumer.
The concealment apparently led to failure of payment of the third party fatal cover which led two representatives of a deceased from the accident to institute legal proceedings seeking general damages under the Fatal Accidents Act, Special damages of Sh 188,500 as well as costs and interest of the suit.
Through lawyer Danstan Omari, petitioner claims she was unaware of the suit against her yet the representatives (4th and 5th respondents in this petition) had served INVESCO with a notice to sue which the company failed to inform her.
“The suit was instituted in the year 2017 and proceeded exparte till delivery of judgment in default on 26th April 2018 and consequently a decree and warrants of attachment thereof in the 8th May 2019,” says the petitioner.
Kimemia avers that she only learnt about the proceedings when her motor vehicle was attached by auctioneers after which she instructed her former advocates, Oduor Henry John & Company Advocates to act for her and stop the sale which was unsuccessful since by the time it was slated for hearing, the sale had already been conducted.
“Pursuant to attachment and sale by auction, the 4th and 5th respondents being decree holders through their advocates and auctioneers sold the suit vehicle in an auction at a paltry Sh 900,000 paid to the decree holder thus leaving a balance of the decretal sum of Sh 1,629,895,” Kimemia adds.
The businesswoman approached Family Bank LTD to asset finance acquisition of the 33 seater vehicle herein which it did to the tune of Sh 3, 254,510 in 2014.
She states that after entering an asset finance agreement, she purchased the bus which as a condition in the facility offer agreement was insured in an insurance arrangement in which INVESCO insured vide policy no. 080/0804/1/018408/2015/03 which covered the third party risk while AMACO Insurance Co. Ltd vide policy no. AMD/088/1/000380/2016/03 separately covered material damage to the suit vehicle. Both policies were for the period between 25th March 2016 to the 24th March 2017.
According to the certificate of urgency, payment of the premiums for the insurance cover was such that the Bank, who at the time co-owned the suit motor vehicle could utilize monies from the petitioner to pay to INVESCO who could in turn offer a third party insurance cover to the vehicle.
“After the suit motor vehicle was purchased, it was registered under joint ownership of the Petitioner and the 3rd respondent (Family Bank) and this was to remain the position till such a time, the petitioner could have completed repayment of the loan facility advanced,” says lawyer Omari.
It is alleged that on 31st December 2016, the vehicle was involved in an accident after which Kimemia informed Family Bank insurance agency about it on or about the 12th January 2017 noting to forward support documents including the police abstract in which the nature of the accident was disclosed and described.
The Agency in turn gave her claim forms which it requested her to fill assuring her that she could be compensated of the material loss as well as compensation of the fatal loss to the third party.
According to Kimemia, AMACO insurance company compensated her by having the vehicle repaired while INVESCO failed to compensate the third parties.
Due to the above, the petitioner wants the court to issue a conservatory order restraining the two representatives either by themselves, agents and or auctioneers instructed by their advocates from levying any further execution on her with regard to the case they filed.
She also wants the court to declare that the 3rd respondent was duty bound to give her unbiased information on insurance companies that could insure the suit motor vehicle and that the non-disclosure violated her rights to information under Articles 35 1 (b) and Article 46 1 (b).
The petitioner also wants a declaration that INVESCO, Family Bank insurance agency and Family Bank Limited jointly and/or severally violated her consumer rights to services of reasonable quality; information necessary to gain full benefit from goods and services and protection of her economic interests as a consumer under articles 46 1 (a) (b) (c) of the Constitution of Kenya 2010.
A declaration that the 3 jointly and/or severally breached the violated the petitioner’s rights to acquire and own property under Article 40 (1).
She further wants an order of mandamus compelling the 3 respondents jointly and/or severally to compensate her for violation of her rights, to compensate her Sh 3,800,000 being the market value of the auctioned vehicle and Sh 1,836,000 being the loss of use of the vehicle.
Lastly she wants an order of mandamus compelling INVESCO to compensate the 4th and 5th respondents of the balance of the decretal amount being Sh 1,629,895.
