A businessman offering funeral transport services will have to pay 40 victims millions in damages following a road accident involving his hearse.
This is after the High Court in Mombasa declined to stop some of the claimants, who have already secured court judgments, from enforcing their various decrees.
Justice Eric Ogola ruled that the case did not raise any constitutional matter that would allow the court to issue an injunction against enforcing the judgments.
The judge also noted that the dispute resulted from a commercial transaction between an insurer and the insured. Since both are private parties, David Owuor Ongoro, the owner of the vehicle, should have filed the case as an ordinary civil suit.
“The enforcement of contract terms cannot inspire the invocation of constitutional provisions mandating enforcement via a petition. Consequently, the instant application and constitutional petition are unsustainable and a misuse of the court's process. Both the application and the petition herein are struck out,” the judge said.
Mr Ongoro had moved to the court to stop any payments to the victims and prevent his property from being attached to settle the claims.
The dispute arose from an accident that occurred in Taru on the Mombasa-Nairobi highway three years ago involving a hearse carrying the 40 people.
The victims suffered injuries in the crash. They then filed claims for damages against Mr Ongoro, who was the registered owner of the hearse.
Some of the victims have obtained court judgments that they want to enforce, while the cases of others are pending.
Mr Ongoro then moved to the High Court to stop the victims from either claiming damages from him or enforcing any judgments obtained from magistrate courts.
He asked the judge to restrain the victims from executing the delivered judgments and those still pending against his property until his case is concluded.
“Pending hearing and determination of this petition, this court be pleased to issue an order of injunction restraining the plaintiffs from demanding for, attaching for sale, auction or in any other manner undertaking enforcement action against my assets," he said
Mr Ongoro based his case on an insurance policy with Africa Merchant Assurance Company Ltd, which he alleges has been violated.
When the accident occurred, he said, the insurance company was duly notified and provided with details of the injured persons. It paid to repair the vehicle, he said.
The businessman said that after the victims filed their lawsuits, he was served with a summons to go to court.
“As per the policy agreement, I forwarded the documents and pleadings to the company to take up the claims on my behalf,” he said.
However, he said, the company ignored and or refused to appoint an advocate to defend the claims on his behalf in breach of the policy. This meant that the civil suit filed against him remained undefended.
Mr Ongoro lamented that the subsequent law firm appointed to defend the case only entered an appearance but never took any steps to defend the cases. His attempts to reach out to the Insurance Regulatory Authority were in vain.
“Most of these cases have been concluded and judgments entered against me. The insurance firm has neglected to settle the claims despite forwarding letters informing it of the delivery of judgments and tabulating the decretal sums payable,” he said.
Paid his premiums
The petitioner lamented that failure by the insurance firm to defend and settle the claims had violated his legitimate expectation as he will be personally held liable for claims yet he had dutifully paid his premiums.
“I stand to suffer at the hands of the insurance firm unless the court intervenes and grants the prayers as sought,” he said.
The insurance firm did not file any response to the petition but only stated that it supported the application for injunction orders as filed by Mr Ongoro.
But the judge ruled that the agreement between Mr Ongoro and the firm is regulated by privacy laws and it cannot owe a duty to him under the fundamental rights provisions of the Constitution.
The ruling has exposed Mr Ongoro’s property to sale if the victims take that path to recover the money they are owed.