(Being an Appeal from the judgment and decree of Hon. V. Mochache, Adjudicator, delivered on 5 th October 2023 in Nairobi Small Claims Court Claim No. 3191 of 2023)
Background
1. The appellant, Alexander Matunduu Musili sued Agripina Christine Julius in, Nairobi Small Claims Court Claim No. E3328 of 2022 claiming general and special damages following a road traffic accident which occurred on 25 th September 2022 along Mombasa road near Syokimau Railways opposite Naivas. Her case was that she was a passenger in motor vehicle registration number KCQ 588X, matatu when the same was hit by motor vehicle registration number KCG 725S, Toyota Wish headed in the same direction as a result of which the matatu overturned and rolled over thereby causing severe bodily injuries to the appellant as a result of which she suffered loss and damage. The appellant was successful in her suit and was awarded general and special damages in the sum of KShs 189,150/= plus costs and interest.
2. The appellant then, filed Nairobi Small Claims Court Claim No. 3191 of 2023 through the claim amended on 31 st July 2023 against the respondent herein seeking declaratory orders compelling the respondent herein to satisfy the decree pursuant to the said judgment in Nairobi Small Claims Court Claim No. E3328 of 2022.
3. In its response dated 14 th August 2023, the respondent denied the appellant’s claim in toto. It averred that it was not the insurer of motor vehicle registration number KCG 725S and put the appellant to strict proof thereof. It averred further that it had never been involved in the primary suit Nairobi SCCC Number E3382 of 2022, it had never been served with summons, notice under the provisions of the Insurance (Motor Vehicle Third Party Risks) Act or any document wahatsover and put the appellant to strict proof. It averred therefore that the appellant was not entitled to a declaration that the respondent was liable to satisfy the decretal sum together with interest in the primary suit.
4. In a judgment dated 5 th October 2023 the SCC dismissed the claim finding that the appellant had not proved his claim because he had not provided any material evidence to confirm that the respondent was indeed the insurer of the said motor vehicle, not even a police abstract and/or policy document.
Grounds of appeal
5. The appellant was aggrieved by the judgment and now appeals to this court through his memorandum dated 13 th May 2024 raising the following grounds:
a. The learned magistrate erred in law and fact by finding that the Claimant had failed to prove his case on a balance of probabilities and thus not entitled to the reliefs sought.
b. The learned judge erred in law and fact by finding that the Claimant had not provided any material evidence to confirm that the Respondent was indeed the insurer of the subject motor vehicle.
c. The learned magistrate erred in law and fact by failing to consider the evidence of the Claimant, to wit, Notice of Intention to file declaratory proceedings served upon and duly received with the Respondent's Stamp; and uncontroverted evidence of the Claimant that the Respondent was the insurer of the subject motor vehicle.
d. The trial judge misdirected herself by giving weight to the Respondent's mere denial that the Respondent was not the insurer, while the Respondent adduced no evidence to support the said allegations.
e. The trial judge misdirected erred in law and fact by not giving regard to the principle that in the absence of evidence by the defence, the allegations in the statement of defence remain mere denials and the Plaintiff's case remains unchallenged and uncontroverted.
6. The appellant therefore prays for orders that the appeal be allowed and the judgment and orders of the SCC dated 5 th October 2023 be set aside and substituted with an order that the respondent is obligated to satisfy the decretal sum of KShs 189,150/= in Nairobi Small Claims Court Civil Suit No. SCCC/E3328/2022 Alexander Matunduu Musili vs Agripina Christine Julius and that the costs of this appeal be granted to the appellant.
Submissions
7. The appeal was disposed of by way of written submissions filed by learned counsels for both parties. They are considered in the analysis that follows.
Duty of appellate court
8. I wish to commend on the manner of drafting the grounds of appeal as laid out in the memorandum by the appellant where she keeps indicating that “the learned trial magistrate erred in law and in fact.” In the first place, the Judicial Officer who presides over the Small Claims Court is an Adjudicator and not a magistrate. That distinction may appear innocuous but it is of great significance when it comes to appreciating that the workings of the SCC as provided for under the SCCA are different from those of the Magistrates Court.
9. Secondly, I have seen the submissions by learned counsels for the respondent that the duty of a first appellate court is to re-evaluate and analyze the evidence on record afresh and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. That is not correct. Such duty is provided for under section 78 of the Civil Procedure Act but it is not applicable to proceedings before this court arising from the SCC. Therefore, the submission by learned counsel for the respondent that this court has to analyze and reassess the evidence on record and reach its own findings as held in the case of Selle vs Associated Motor Boat Company (1969) E.A 123) is not correct. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters as required under the Civil Procedure Act and Rules.
10. Appeals to this court under section 38 of the SCCA are on points of law only. In the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) the Court of Appeal while commending on drafting grounds of appeal based on points of law only stated as follows:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
11. Therefore, the reference by learned counsel in the grounds of appeal to the presiding officer of the SCC as a magistrate and adverting to errors of fact, although harmless, was erroneous and ought to be corrected in future.
12. Further, in the case of M’Riungu v. Republic [1983] KLR 455 , the Court of Appeal explained how an appellate court would proceed to determine an appeal based on points of law thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
13. Therefore, while considering this appeal, this court is accordingly guided not to interfere with the findings of the SCC on findings of fact unless it is apparent that on evidence, the decision was bad in law.
Case before the trial court
14. The case proceeded by way of the pleadings and witness statements filed by the parties under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya. Section 30 of the SCCA provides that:
S. 30. Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
15. The documents filed by the parties were as follows.
16. For the appellant:
a. Statement of claim amended on 31 st July 2023.
b. Witness statement of Alexander Mutunduu Musili dated 31 st July 2023.
c. Copy of national identity card for Alexander Mutunduu Musili.
d. Decree in Milimani SCCC No. E3328 of 2022.
e. Notice of intention to file declaratory proceedings against Monarch Insurance dated 9 th June 2023.
f. Statutory Notice pursuant to section 10(2) of the Insurance (Motor Vehicle Third Party) Risks Act.
17. For the respondent:
a. Response to statement of claim dated 14 th August 2023.
Analysis
18. I have considered the grounds set out in the Memorandum of Appeal, the material relied upon by the learned Adjudicator and the submissions by learned counsels for the parties. The point for determination is whether or not on the material tendered before the SCC the learned Adjudicator was correct in dismissing the appellant’s claim.
19. The evidential material made available to the SCC to support the claim was the statement by the appellant. In one paragraph, he stated that “the said motor vehicle registration number KCG 725S, a Toyota Wish had an insurance policy with Monarch Insurance Company Limited C/No. C23925959.” There was also the notice of intention to file a declaratory suit which and the statutory notice pursuant to section 10(2) of the Insurance (Motor Vehicle Third Party) Risks Act. They bear the policy No. C23925959 as part of their content.
20. The respondent did not file a witness statement to support its averments in the response denying that it was the insurer of the subject motor vehicle.
21. In its judgment, the learned Adjudicator upon laying down and considering the provisions of sections 10 and 12 of the of the Insurance (Motor Vehicle Third Party) Risks Act made the following findings:
“The claimant herein followed all the laid down procedures before coming to this court, a statutory notice as well as a demand letter was issued to the respondent as depicted by the e-mail dated 19 th of October 22. A decree was obtained and the same is annexed to the claimant’s documents.”
22. Learned counsel for the respondent submits that under section 10(1) of Cap. 405 the duty or liability upon an insurer to satisfy any judgment obtained against a person insured by the policy in respect of liability required to be covered by a policy of insurance only arises where there is proof of a policy of insurance covering the person against whom judgment was entered. That the claimant must demonstrate that a contract of insurance existed, that it covered the relevant risk and that the insurer was given statutory notice.
23. Learned counsel submits further that the SCC was correct in holding that the appellant did not discharge his burden of proof under sections 107, 108 and 109 of the Evidence Act. That the appellant’s case rested almost exclusively on a police abstract which indicated Monarch Insurance as the insurer. That no certificate of insurance, cover note, or policy document was produced nor was any witness from the Insurance Regulatory Authority nor from Monarch called to authenticate the alleged policy. Learned counsel relies on the cases of Kenya Orient Insurance Ltd v Ramadhan [2023]eKLR and Richard Maku Ngumbi & another v Cannon Assurance Limited [2016]eKLR . I note that in both cases, the courts were considering appeals on applications for striking out the defence to the declaratory suit and not the main declaratory suit where the evidence tendered by the parties, as the case herein, would be considered fully. Secondly, those cases did not arise from claims filed in the SCC. They are therefore not helpful in this case.
24. It is true that the appellant did not provide a copy of the insurance to show that the respondent had insured the subject motor vehicle belonging to the respondent in the primary suit.
25. In determining that issue, recourse must be had to pertinent features to bear in mind while considering a claim under the SCC Act. The SCC Act exempts the court’s proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy (emphasis by underlining supplied). It follows from this provision that it is largely upon the Adjudicator to determine the material to rely upon.
26. Further, Section 32 of the Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (emphasis supplied). This means the Adjudicator has the discretion to admit any material which may be helpful in establishing whether or not the claim is proved.
27. Section 3 of the SCC Act on the guiding principles of the court provides inter alia that the court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution and without prejudice to the same, the Court shall adopt such procedures as the Court deems appropriate to ensure fairness of process and simplicity of procedure (emphasis supplied). The fairness of process is further reinforced under Part IV which is the substantive part that deals with procedure. Section 17 of the Act which falls under Part IV, it provides that:
S. 17. Subject to this Act and Rules, the Court shall have control of its own procedure in the determination of claims before it and, in the exercise of that control, the Court shall have regard to the principles of natural justice.
28. Therefore, the principles of natural justice rather than the technical procedural rules under the CPR take centre stage in a SCC hearing. In Justice Amraphael Mbogholi Msagha v. Chief Justice of the Republic of Kenya & 7 Others Nairobi HCMCA No. 1062 of 2004; [2006] 2 KLR 553; [2006] eKLR , the Court, in discussing the rules of natural justice, cited De Smith and Brazier, Constitutional and Administrative Law 6 th Edition (Penguin United Kingdom: 1989) (pages 557-558) which states:
“The content of natural justice is therefore flexible and variable. All that is fundamentally demanded of the decision maker is that his decision in its own context be made with due regard for the affected parties’ interests and accordingly be reached without bias and after giving the party or parties a chance to put his or their case....”
29. My thinking therefore is that the responsibility of this court when considering an appeal from the SCC is to consider the legality and reasonableness of the decision of the learned Adjudicator. If this court is satisfied that the law was properly considered and applied and a reasonable evaluation of the facts had, then it will not interfere with the findings and determination of the trial court. The converse would also be true. That where the law was not properly considered and/or applied or where the decision does not seem reasonable from the facts before the court, or where the Adjudicator fails to consider such material as would help in the determination of the claim, this court on appeal would interfere with the decision of the SCC. Given the provisions of the SCC Act excluding to a large extent the strict provisions of the law of evidence and the technicalities of the CPR, I would find that the standard of reasonableness would be that of ordinary person on the street.
30. I have considered the grounds of appeal, the submissions by learned counsels for the parties and reviewed and reexamined the case before the trial court including the pleadings, the evidence and the judgment. The issue for determination is whether or not the learned trial magistrate was correct in her finding that the appellant had not proved his case and thus dismissing it.
31. The evidence before the SCC from the appellant’s witness statement was that the respondent was the insurer of the appellant’s motor vehicle. It was supported by two notices sent to the respondent making that assertion being the Statutory Notice pursuant to section 10(2) of the Insurance (Motor Vehicle Third Party) Risks Act and the notice of intention to file declaratory proceedings against Monarch Insurance dated 9 th June 2023. Both of them bore the insurance policy number. There is no indication from the respondent denying that assertion. That is why he filed the declaratory suit. Had the respondent made a response declining the same, the appellant would have been put on notice to look out for further evidence to prove the claim.
32. Besides failing to deny the correctness of the two notices that it was the insurer of the subject vehicle, when it was sued, the respondent did not file even a witness statement as evidence to deny the assertion that the insurance policy number was genuinely issued by them to the insured. It is instructive to note that even in its response it never indicated the basis upon which it was denying that it was the insurer of the subject vehicle such as fraud, forgery, or anything.
33. I find that any reasonable person faced with the same facts would presume from the outset, as the appellant did herein, that the respondent was not contesting the assertion that the insurance policy number cited to it was genuine and that it was the insurer of the vehicle.
34. Learned counsel for the appellant submits that the appellant established a prima facie case that was never rebutted by the respondent and that the learned Adjudicator accorded weight to the statement of denial by the respondent that it was the insurer of the vehicle without any supporting material. I agree with that submission and find that the appellant discharged the burden of proof by establishing that the subject vehicle was insured by the respondent
35. The learned Adjudicator failed to direct herself correctly on the evidential burden of proof that was cast on the respondent under sections 109 and 112 of the Evidence Act. In the case of Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015] KEHC 8440 (KLR ) sections 107, 108, 109 and 112 of the Evidence Act (Cap. 80) Laws of Kenya on the legal burden of proof and the evidential burden of proof were explained thus:
“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:
107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
Furthermore, the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act as follows:
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
36. In this case the appellant offered material in the form of his witness statement and notices to the respondent to support his assertion that the respondent was the insurer of the subject motor vehicle. The respondent on its part wished the court to believe that in fact it was not the insurer of the vehicle. The evidential burden was cast upon it to establish that assertion. Secondly, due to the nature of an insurance contract where the appellant as a third party cannot be expected to have the details or any document to prove the existence of the contract between the insurer and the insured, the fact of whether or not the respondent was the insurer of the subject vehicle was especially within the knowledge of the respondent and in that case, under section 112 of the Evidence Act, it was expected to disprove the appellant’s assertion that it was in fact not the insurer. It failed to do so by not offering an iota of material that the court would have considered in its favour.
Determination
37. In the circumstances, I find that the learned Adjudicator misapprehended the law under the SCC Act by finding that the policy of insurance not having been produced, the appellant had not proved his case on a balance of probability of as reasonable person would be expected to.
38. Consequently, I find that the appeal has merit and the same is allowed. The SCC judgment is set aside and substituted with a judgment allowing the appellant’s claim with costs both in the lower court and in this court.
39. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Microsoft Teams this 9 th day of June 2026
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellant.
Macharia (Ms) for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W. F.
JUDGE
Macharia: I apply for 45 days stay of execution.
Court. Stay of execution is granted for 30 days.
ANDAYI W. F.
JUDGE
MILIMANI hC CA No. E974/202413/declaratory judgment against insurer
Background
1. The appellant, Alexander Matunduu Musili sued Agripina Christine Julius in, Nairobi Small Claims Court Claim No. E3328 of 2022 claiming general and special damages following a road traffic accident which occurred on 25 th September 2022 along Mombasa road near Syokimau Railways opposite Naivas. Her case was that she was a passenger in motor vehicle registration number KCQ 588X, matatu when the same was hit by motor vehicle registration number KCG 725S, Toyota Wish headed in the same direction as a result of which the matatu overturned and rolled over thereby causing severe bodily injuries to the appellant as a result of which she suffered loss and damage. The appellant was successful in her suit and was awarded general and special damages in the sum of KShs 189,150/= plus costs and interest.
2. The appellant then, filed Nairobi Small Claims Court Claim No. 3191 of 2023 through the claim amended on 31 st July 2023 against the respondent herein seeking declaratory orders compelling the respondent herein to satisfy the decree pursuant to the said judgment in Nairobi Small Claims Court Claim No. E3328 of 2022.
3. In its response dated 14 th August 2023, the respondent denied the appellant’s claim in toto. It averred that it was not the insurer of motor vehicle registration number KCG 725S and put the appellant to strict proof thereof. It averred further that it had never been involved in the primary suit Nairobi SCCC Number E3382 of 2022, it had never been served with summons, notice under the provisions of the Insurance (Motor Vehicle Third Party Risks) Act or any document wahatsover and put the appellant to strict proof. It averred therefore that the appellant was not entitled to a declaration that the respondent was liable to satisfy the decretal sum together with interest in the primary suit.
4. In a judgment dated 5 th October 2023 the SCC dismissed the claim finding that the appellant had not proved his claim because he had not provided any material evidence to confirm that the respondent was indeed the insurer of the said motor vehicle, not even a police abstract and/or policy document.
Grounds of appeal
5. The appellant was aggrieved by the judgment and now appeals to this court through his memorandum dated 13 th May 2024 raising the following grounds:
a. The learned magistrate erred in law and fact by finding that the Claimant had failed to prove his case on a balance of probabilities and thus not entitled to the reliefs sought.
b. The learned judge erred in law and fact by finding that the Claimant had not provided any material evidence to confirm that the Respondent was indeed the insurer of the subject motor vehicle.
c. The learned magistrate erred in law and fact by failing to consider the evidence of the Claimant, to wit, Notice of Intention to file declaratory proceedings served upon and duly received with the Respondent's Stamp; and uncontroverted evidence of the Claimant that the Respondent was the insurer of the subject motor vehicle.
d. The trial judge misdirected herself by giving weight to the Respondent's mere denial that the Respondent was not the insurer, while the Respondent adduced no evidence to support the said allegations.
e. The trial judge misdirected erred in law and fact by not giving regard to the principle that in the absence of evidence by the defence, the allegations in the statement of defence remain mere denials and the Plaintiff's case remains unchallenged and uncontroverted.
6. The appellant therefore prays for orders that the appeal be allowed and the judgment and orders of the SCC dated 5 th October 2023 be set aside and substituted with an order that the respondent is obligated to satisfy the decretal sum of KShs 189,150/= in Nairobi Small Claims Court Civil Suit No. SCCC/E3328/2022 Alexander Matunduu Musili vs Agripina Christine Julius and that the costs of this appeal be granted to the appellant.
Submissions
7. The appeal was disposed of by way of written submissions filed by learned counsels for both parties. They are considered in the analysis that follows.
Duty of appellate court
8. I wish to commend on the manner of drafting the grounds of appeal as laid out in the memorandum by the appellant where she keeps indicating that “the learned trial magistrate erred in law and in fact.” In the first place, the Judicial Officer who presides over the Small Claims Court is an Adjudicator and not a magistrate. That distinction may appear innocuous but it is of great significance when it comes to appreciating that the workings of the SCC as provided for under the SCCA are different from those of the Magistrates Court.
9. Secondly, I have seen the submissions by learned counsels for the respondent that the duty of a first appellate court is to re-evaluate and analyze the evidence on record afresh and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. That is not correct. Such duty is provided for under section 78 of the Civil Procedure Act but it is not applicable to proceedings before this court arising from the SCC. Therefore, the submission by learned counsel for the respondent that this court has to analyze and reassess the evidence on record and reach its own findings as held in the case of Selle vs Associated Motor Boat Company (1969) E.A 123) is not correct. From the provisions of the Act, it follows that this court cannot proceed with the case by way of a rehearing and re-evaluation of evidence as is the norm in other civil matters as required under the Civil Procedure Act and Rules.
10. Appeals to this court under section 38 of the SCCA are on points of law only. In the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) the Court of Appeal while commending on drafting grounds of appeal based on points of law only stated as follows:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
11. Therefore, the reference by learned counsel in the grounds of appeal to the presiding officer of the SCC as a magistrate and adverting to errors of fact, although harmless, was erroneous and ought to be corrected in future.
12. Further, in the case of M’Riungu v. Republic [1983] KLR 455 , the Court of Appeal explained how an appellate court would proceed to determine an appeal based on points of law thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
13. Therefore, while considering this appeal, this court is accordingly guided not to interfere with the findings of the SCC on findings of fact unless it is apparent that on evidence, the decision was bad in law.
Case before the trial court
14. The case proceeded by way of the pleadings and witness statements filed by the parties under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya. Section 30 of the SCCA provides that:
S. 30. Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
15. The documents filed by the parties were as follows.
16. For the appellant:
a. Statement of claim amended on 31 st July 2023.
b. Witness statement of Alexander Mutunduu Musili dated 31 st July 2023.
c. Copy of national identity card for Alexander Mutunduu Musili.
d. Decree in Milimani SCCC No. E3328 of 2022.
e. Notice of intention to file declaratory proceedings against Monarch Insurance dated 9 th June 2023.
f. Statutory Notice pursuant to section 10(2) of the Insurance (Motor Vehicle Third Party) Risks Act.
17. For the respondent:
a. Response to statement of claim dated 14 th August 2023.
Analysis
18. I have considered the grounds set out in the Memorandum of Appeal, the material relied upon by the learned Adjudicator and the submissions by learned counsels for the parties. The point for determination is whether or not on the material tendered before the SCC the learned Adjudicator was correct in dismissing the appellant’s claim.
19. The evidential material made available to the SCC to support the claim was the statement by the appellant. In one paragraph, he stated that “the said motor vehicle registration number KCG 725S, a Toyota Wish had an insurance policy with Monarch Insurance Company Limited C/No. C23925959.” There was also the notice of intention to file a declaratory suit which and the statutory notice pursuant to section 10(2) of the Insurance (Motor Vehicle Third Party) Risks Act. They bear the policy No. C23925959 as part of their content.
20. The respondent did not file a witness statement to support its averments in the response denying that it was the insurer of the subject motor vehicle.
21. In its judgment, the learned Adjudicator upon laying down and considering the provisions of sections 10 and 12 of the of the Insurance (Motor Vehicle Third Party) Risks Act made the following findings:
“The claimant herein followed all the laid down procedures before coming to this court, a statutory notice as well as a demand letter was issued to the respondent as depicted by the e-mail dated 19 th of October 22. A decree was obtained and the same is annexed to the claimant’s documents.”
22. Learned counsel for the respondent submits that under section 10(1) of Cap. 405 the duty or liability upon an insurer to satisfy any judgment obtained against a person insured by the policy in respect of liability required to be covered by a policy of insurance only arises where there is proof of a policy of insurance covering the person against whom judgment was entered. That the claimant must demonstrate that a contract of insurance existed, that it covered the relevant risk and that the insurer was given statutory notice.
23. Learned counsel submits further that the SCC was correct in holding that the appellant did not discharge his burden of proof under sections 107, 108 and 109 of the Evidence Act. That the appellant’s case rested almost exclusively on a police abstract which indicated Monarch Insurance as the insurer. That no certificate of insurance, cover note, or policy document was produced nor was any witness from the Insurance Regulatory Authority nor from Monarch called to authenticate the alleged policy. Learned counsel relies on the cases of Kenya Orient Insurance Ltd v Ramadhan [2023]eKLR and Richard Maku Ngumbi & another v Cannon Assurance Limited [2016]eKLR . I note that in both cases, the courts were considering appeals on applications for striking out the defence to the declaratory suit and not the main declaratory suit where the evidence tendered by the parties, as the case herein, would be considered fully. Secondly, those cases did not arise from claims filed in the SCC. They are therefore not helpful in this case.
24. It is true that the appellant did not provide a copy of the insurance to show that the respondent had insured the subject motor vehicle belonging to the respondent in the primary suit.
25. In determining that issue, recourse must be had to pertinent features to bear in mind while considering a claim under the SCC Act. The SCC Act exempts the court’s proceedings from the rigid application of the standards of evidence applicable in other court proceedings and permits the court to include as evidence any material that it deems credible or trustworthy (emphasis by underlining supplied). It follows from this provision that it is largely upon the Adjudicator to determine the material to rely upon.
26. Further, Section 32 of the Act provides that the strict evidentiary rules applicable in other courts are not wholly applied in the Small Claims Court. It further, provides that the Court may admit as evidence any oral or written testimony, record, or other material even though the same is not admissible as evidence in any other Court under the law of evidence (emphasis supplied). This means the Adjudicator has the discretion to admit any material which may be helpful in establishing whether or not the claim is proved.
27. Section 3 of the SCC Act on the guiding principles of the court provides inter alia that the court shall be guided by the principles of judicial authority prescribed under Article 159(2) of the Constitution and without prejudice to the same, the Court shall adopt such procedures as the Court deems appropriate to ensure fairness of process and simplicity of procedure (emphasis supplied). The fairness of process is further reinforced under Part IV which is the substantive part that deals with procedure. Section 17 of the Act which falls under Part IV, it provides that:
S. 17. Subject to this Act and Rules, the Court shall have control of its own procedure in the determination of claims before it and, in the exercise of that control, the Court shall have regard to the principles of natural justice.
28. Therefore, the principles of natural justice rather than the technical procedural rules under the CPR take centre stage in a SCC hearing. In Justice Amraphael Mbogholi Msagha v. Chief Justice of the Republic of Kenya & 7 Others Nairobi HCMCA No. 1062 of 2004; [2006] 2 KLR 553; [2006] eKLR , the Court, in discussing the rules of natural justice, cited De Smith and Brazier, Constitutional and Administrative Law 6 th Edition (Penguin United Kingdom: 1989) (pages 557-558) which states:
“The content of natural justice is therefore flexible and variable. All that is fundamentally demanded of the decision maker is that his decision in its own context be made with due regard for the affected parties’ interests and accordingly be reached without bias and after giving the party or parties a chance to put his or their case....”
29. My thinking therefore is that the responsibility of this court when considering an appeal from the SCC is to consider the legality and reasonableness of the decision of the learned Adjudicator. If this court is satisfied that the law was properly considered and applied and a reasonable evaluation of the facts had, then it will not interfere with the findings and determination of the trial court. The converse would also be true. That where the law was not properly considered and/or applied or where the decision does not seem reasonable from the facts before the court, or where the Adjudicator fails to consider such material as would help in the determination of the claim, this court on appeal would interfere with the decision of the SCC. Given the provisions of the SCC Act excluding to a large extent the strict provisions of the law of evidence and the technicalities of the CPR, I would find that the standard of reasonableness would be that of ordinary person on the street.
30. I have considered the grounds of appeal, the submissions by learned counsels for the parties and reviewed and reexamined the case before the trial court including the pleadings, the evidence and the judgment. The issue for determination is whether or not the learned trial magistrate was correct in her finding that the appellant had not proved his case and thus dismissing it.
31. The evidence before the SCC from the appellant’s witness statement was that the respondent was the insurer of the appellant’s motor vehicle. It was supported by two notices sent to the respondent making that assertion being the Statutory Notice pursuant to section 10(2) of the Insurance (Motor Vehicle Third Party) Risks Act and the notice of intention to file declaratory proceedings against Monarch Insurance dated 9 th June 2023. Both of them bore the insurance policy number. There is no indication from the respondent denying that assertion. That is why he filed the declaratory suit. Had the respondent made a response declining the same, the appellant would have been put on notice to look out for further evidence to prove the claim.
32. Besides failing to deny the correctness of the two notices that it was the insurer of the subject vehicle, when it was sued, the respondent did not file even a witness statement as evidence to deny the assertion that the insurance policy number was genuinely issued by them to the insured. It is instructive to note that even in its response it never indicated the basis upon which it was denying that it was the insurer of the subject vehicle such as fraud, forgery, or anything.
33. I find that any reasonable person faced with the same facts would presume from the outset, as the appellant did herein, that the respondent was not contesting the assertion that the insurance policy number cited to it was genuine and that it was the insurer of the vehicle.
34. Learned counsel for the appellant submits that the appellant established a prima facie case that was never rebutted by the respondent and that the learned Adjudicator accorded weight to the statement of denial by the respondent that it was the insurer of the vehicle without any supporting material. I agree with that submission and find that the appellant discharged the burden of proof by establishing that the subject vehicle was insured by the respondent
35. The learned Adjudicator failed to direct herself correctly on the evidential burden of proof that was cast on the respondent under sections 109 and 112 of the Evidence Act. In the case of Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015] KEHC 8440 (KLR ) sections 107, 108, 109 and 112 of the Evidence Act (Cap. 80) Laws of Kenya on the legal burden of proof and the evidential burden of proof were explained thus:
“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:
107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
Furthermore, the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act as follows:
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
36. In this case the appellant offered material in the form of his witness statement and notices to the respondent to support his assertion that the respondent was the insurer of the subject motor vehicle. The respondent on its part wished the court to believe that in fact it was not the insurer of the vehicle. The evidential burden was cast upon it to establish that assertion. Secondly, due to the nature of an insurance contract where the appellant as a third party cannot be expected to have the details or any document to prove the existence of the contract between the insurer and the insured, the fact of whether or not the respondent was the insurer of the subject vehicle was especially within the knowledge of the respondent and in that case, under section 112 of the Evidence Act, it was expected to disprove the appellant’s assertion that it was in fact not the insurer. It failed to do so by not offering an iota of material that the court would have considered in its favour.
Determination
37. In the circumstances, I find that the learned Adjudicator misapprehended the law under the SCC Act by finding that the policy of insurance not having been produced, the appellant had not proved his case on a balance of probability of as reasonable person would be expected to.
38. Consequently, I find that the appeal has merit and the same is allowed. The SCC judgment is set aside and substituted with a judgment allowing the appellant’s claim with costs both in the lower court and in this court.
39. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Microsoft Teams this 9 th day of June 2026
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the Appellant.
Macharia (Ms) for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W. F.
JUDGE
Macharia: I apply for 45 days stay of execution.
Court. Stay of execution is granted for 30 days.
ANDAYI W. F.
JUDGE
MILIMANI hC CA No. E974/202413/declaratory judgment against insurer