BY SAM ALFAN.
The Insurance Appeals Tribunal has overturned a decision by the regulator revoking the appointment of Terry Wijenje as the chief executive officer of Directline Assurance Limited.
The tribunal chaired by veteran lawyer Wambua Kilonzo remitted the allegation of filing of false returns by Wijenje back to the Insurance Regulatory Authority for reconsideration.
The Tribunal directed that in its consideration the IRA should comply with the provisions of the Fair Administrative Actions Act in relation to giving sufficient time to Wijenje to respond to any allegations that may be made against her.
“The Tribunal directs that in its reconsideration of the allegations against Wijenje, the Insurance Regulatory Authority shall strictly adhere to its role as provided in section 68(9) of the Insurance Act in making any decision regarding the appointment or disappointment of a CEO of the Directline Insurance Company limited, ” ruled the Tribunal.
The new twist of the control of the troubled insurance firm comes a year after the Tribunal found that it was wrong for the insurer to cancel the policy because of a notice issued by a third party.
The tribunal had suspended the decision pending further directions on December 19.
The tribunal also directed the commissioner of insurance to withhold any action of approving any person (s) as the Principal Officer(s) of the said company, pending further directions of the tribunal.
Wijenje lodged the Appeal on December 2 last year contesting the decision of the IRA’s dated November 5, 2019 which revoked her appointment as Principal Officer of Directline Assurance Company Limited.
She served as the Managing Director, CEO and Principal Officer of the underwriter up until when her approval to act as Principal Officer was revoked by the regulator.
She was subsequently sent on compulsory leave by the Board of Directors of Directline Insurance in a letter dated November 7, 2019.
In her documents filed before the Tribunal, she argued that she was not accorded an opportunity to adequately respond to the Authority’s ‘show cause’ letter dated October 29, 2019.
She further argued that the said ‘show cause’ letter was delivered to her office on November 1, 2019 at a time when she was away on sick leave and only learnt of it on November 2, 2019.
She also argued that the ‘show cause’ letter had given her seven days to respond to the same and that the delay in delivering the letter to her together with the difficulties she encountered in accessing her office under circumstances which she claimed that the Respondent was aware of, compounded to deny her adequate time to respond to the said ‘show cause’ letter.
“My attempts to reach the Insurance Regulatory Authority via phone and on email on November 4, 2019 to seek extension of time to respond to the ‘show cause’ letter were unsuccessful since the Authority did not respond to my attempts and on November 5, 2019, I received a letter from the Ira revoking her appointment as Principal Officer of the Directline Insurance “, said Wajenje.
She added that these actions were undertaken contrary to a court order issued by the High Court in Nairobi HCC E277 of 2019 which had restrained the IRA from taking certain steps regarding the management of Directline Insurances.
“That the Respondent acted in excess of jurisdiction and purported to exercise powers and authority to revoke an approval issued to the Appellant as a Principal Officer under Section 68 of the Insurance Act,”reads the appeal documents.
Wajenje added said the Regulatory authority erred in law and fact in complying with the procedural fairness requirements guaranteed under the Constitution of Kenya, (Article 47, 48, 49 and 50), the Insurance Act and the Fair Administrative Actions Act (Section 4).
Insurance Regulatory Authority on the other hand submitted there had been certain clear breaches committed by Wijenje and this necessitated action from the authority who acted based on its statutory mandate.
They argued that the authority accorded the Wajenje sufficient opportunity to be heard after the IRA had established that the Appellant had indeed filed false returns.
The authority s further submitted that it was within their knowledge that the Appellant held shares through her investment company, Jannus Company Limited and through nominees contrary to Section 23(4) of the Insurance Act which prohibited the holding of shares beyond a certain threshold by certain individuals either directly or indirectly.
On the issue of the ‘show cause’ letter, the authority insisted that the letter dated October 29, 2019 was indeed served to Wijenje on October 30, 2019.
Lilan further pointed out that the authority did not receive the purported email and further denied the claim that the Appellant attempted to reach authority via the Commissioner’s mobile phone.
The authority maintained that the issue that was before the Tribunal is a complaint of the right to fair administrative action.
On this point, Counsel for the authority averred that the Wijenje waived her right by failing to respond to the ‘show cause’ letter or making her representations thereon.
The authority noted that it is this failure on the side of the appellant which necessitated the consequent action of revocation of her appointment as Principal Officer.
