Hiring school buses for private business may soon prove to be a costly affair in case of road accidents.
In a precedent-setting decision, High Court judge Roselyn Aburili says it would be wrong to compel an insurance company to settle claims that arise from liability not contemplated by the legislature and even then, which is not the subject of an insurance policy between the parties involved.
The judge said should the insurer be forced to settle such claims, it would not only have the effect of assigning on parties that which they did not contract, but also against the provisions of the law.
“The end result would be to confer an unnecessary benefit on an undeserving party while punishing the insurer for that which it did not contract and/or acquiesce to,” said the judge in a decision delivered in Kisumu on August 8, 2024.
The judge said boards of management of schools should beware, and called on those who hire school buses to read the insurance policy in respect of the usage of those buses before they part with any money and risk the lives and limb of the innocent ‘unauthorised passengers’.
“I do trust and hope that this brief judgment will be circulated to all schools in the country through the county directors of education to alert school management boards, of the dangers associated with the practice, which danger only comes to the fore when there is an accident upon suits being filed by those affected,” said the judge.
Justice Aburili made the decision in a case filed by Old Mutual General Insurance Kenya Limited against the board of directors of Oder Boys Boarding Special School in Kisumu.
In the case, members of the Seventh Day Adventist, who happen to be the sponsors of the school, hired the school bus on April 23, 2023, to ferry them to a church function in Kakamega County.
The bus was involved in an accident along the Kisumu-Kakamega Road and several passengers were injured.
The injured passengers later filed cases before the Small Claims Court seeking compensation but the insurer opposed the cases, arguing that it was not liable since the bus was not being for the purpose it was insured against, at the time of the accident.
The insurance firm stated that it was in express terms of the insurance policy under the general exceptions that the company would not be liable in respect of any accident, loss, damage or liability caused, sustained or incurred while the motor vehicle was being used for purpose it was insured for.
The school defended the claims, stating that the bus was registered in the name of the school and as the SDA was the sponsor of the school, it was authorised to use the bus when the need arose, which the Church did on the material date, ferrying church members to Kakamega having fueled the bus and paid the driver the daily stipend.
Although the claims were later withdrawn, Justice Aburili said it is common, especially during crusades and other religious gatherings in the country’s major cities, to see all school vehicles “lined up from all parts of the nation in their beautiful yellow colours, scaling heights and going down the valleys, leading to those crusades, carrying believers or worshippers”.
However, the judge said, the insurance policy that they take out happens to exclude those kinds of passengers otherwise known as unauthorised passengers.
“When accidents occur, the policy is avoided or voided and the injured passengers or dead passengers’ loved ones end up being mere pious explorers in the pursuit of justice and bearing barren decrees as the schools can barely bear the burden of settling such claims which are left to them,” the judge pointed out.
Justice Aburili said it was clear that schools do not read and adhere to the terms of the binding insurance contracts.
“Those contracts are written in very small prints to discourage readership. The insured often assume the risks and mostly, is out of ignorance. The unauthorised passengers, on the other hand, are oblivious of the risks. The insurance companies assume no risk and rightly, legally, which risks are not covered by the contract of insurance,” added the court.
The court said the liability had been expressly excluded when the bus was not being used for the purposes for which it had been insured.
