Legal Review: You cannot sue the insurance company directly/Insurance Claims

In cases involving a fatal road accident, the correct party to sue in your pleadings depends on the legal framework and jurisdiction, but generally, you sue the insured (the driver or vehicle owner) — not the insurance company directly.

✅ Who to Sue

You typically sue the insured person (usually the driver and/or vehicle owner) who is allegedly at fault for the accident.

⚖️ Why Not the Insurance Company Directly?

• In most jurisdictions, including Kenya, you cannot sue the insurance company directly in a personal injury or fatal accident claim.
• This is because the insurance company’s obligation arises only after liability is established against their insured under third-party insurance.
• The insurance will indemnify the insured if the court finds them liable, subject to the policy terms.

✅ Legal Framework in Kenya

1. Traffic Act (Cap. 403)

• Regulates the operation of motor vehicles and licensing in Kenya.
• Establishes responsibilities of vehicle owners and drivers.

2. Insurance (Motor Vehicles Third Party Risks) Act (Cap. 405)

Under the Act:

• The insurer's role is to satisfy judgments against their insured for liabilities covered by the policy (Section 10).
• The claimant must first obtain judgment against the insured.
• Requires motor vehicle owners to have third-party insurance.
• Section 10 provides that an insurer is liable to indemnify the insured once judgment has been obtained against the insured.

✅ Proper Party to Sue

In a fatal accident:

• The estate of the deceased, usually represented by the legal representative (e.g. administrator or executor of the estate), files a civil suit under the:
• Fatal Accidents Act (Cap. 32): for loss of dependency to the family.
• Law Reform Act (Cap. 26): for pain and suffering, loss of expectation of life.
• The defendants in the suit are typically:
• The driver (if not the owner).
• The owner of the motor vehicle (vicarious liability may apply).

✅ The insurance company is not sued directly, but it will defend the suit on behalf of the insured and pay any judgment as per the insurance policy.

 

✅ When Can You Involve the Insurance Company?

Under Section 10 of Cap. 405, the insurer is obligated to satisfy the judgment only after:

1.        A judgment has been obtained against the insured (driver/owner).

2.        The judgment has not been satisfied by the insured.

3.        The insurance policy was valid at the time of the accident.

➡️ You cannot sue the insurance company directly, unless in rare cases like a declaratory suit to compel the insurer to satisfy a judgment.

📝 Pleading Structure

In your pleadings:

• The defendant(s) should be the driver/owner of the vehicle.
• If both are different people (e.g., employer and driver), you can sue them jointly — vicarious liability may arise.
• You may also need a limited grant of letters of administration ad litem if you're filing on behalf of the deceased’s estate.

📝 Example: Proper Pleading Structure

Plaintiff: Administrator of the estate of [Deceased Name]
Defendant(s): [Driver Name] and/or [Vehicle Owner Name]

Cause of Action: Negligence resulting in fatal injuries

Reliefs Sought:

• General damages (Loss of dependency, pain and suffering, etc.)
• Special damages (e.g., funeral expenses)
• Costs of the suit
• Interest

🔎 Key Case Law

• Kenindia Assurance Co Ltd v Otiende (1989) KLR – Clarified that insurers are not to be sued directly under Cap. 405.
• Rose Mmboga v African Banking Corp & Another [2015] eKLR – Reiterated the requirement to sue the tortfeasor and not the insurer.

✔️ What You Can Do After Judgment

After winning the case:

• You can serve the judgment on the insurance company.
• They are legally bound to pay if the judgment falls within the scope of the policy.

🛑 Exception: Direct Action Against Insurer?

In some rare cases, where there's statutory provision or insurance contracts allow, a direct suit against the insurer might be permitted — but not typical in fatal accident claims in Kenya. 

Legal Advice:

It is highly recommended to seek legal advice from a personal injury attorney who can guide you through the process and ensure you are suing the correct parties and pursuing the appropriate claims. Contact us through the "Contact Form" on this website.