1. The plaintiff herein has filed suit against the defendant in a plaint dated 5/9/2022 for a declaratory judgment that the defendant is liable to settle the decretal sums in various primary suits filed at the Kwale Resident Magistrates Court being Civil Suit Numbers 300, 302, 314, 327, 328, 329, 336, 337, 338, 339, 340, 385, 387, 388, 391, 392, of 2018. The amount adjudged in each case is stated under paragraph 11 of the plaint.
2. The plaintiff avers that the defendant issued him with a third-party motor insurance cover under policy number AM2/080/1/019391/2013 for motor vehicle registration number KBV 259R Isuzu mini bus owned by the plaintiff and against whom judgment was issued in the primary suits. The insurance policy was for the period 20/7/2017 to 19/7/2018 and in respect of any liability which may be incurred by the plaintiff in respect of damage, death of or bodily injury to any person, caused by or arising out of the use on the road of the said vehicle.
3. The plaintiff’s said vehicle was involved in an accident along the Mombasa-Nairobi road at Taru area on or about 7/1/2018 during the subsistence of the insurance cover. The vehicle was damaged and passengers therein injured.
4. Under the said insurance cover, the defendant repaired the said vehicle to the plaintiff’s satisfaction. The injured passengers in the vehicle sued the plaintiff for general and special damages. When the plaintiff was served with summonses to enter appearance in the primary suits above arising from the said accident, he forwarded the same to the defendant who instructed advocates and they entered appearance in the primary suits. However, subsequently the advocates ceased acting due to lack of instructions from the defendant. The plaintiffs in the primary suits were subsequently awarded damages in various amounts being:
a. KShs 184,700 in Kwale RMCC No. 300 of 2018,
b. KShs 302,000 in Kwale RMCC No. 302 of 2018,
c. KShs 152,000 in Kwale RMCC No. 314 of 2018,
d. KShs 251,860 in Kwale RMCC No. 327 of 2018,
e. KShs 132,000 in Kwale RMCC No. 328 of 2018,
f. KShs 183,200 in Kwale RMCC No. 329 of 2018,
g. KShs 117,000 in Kwale RMCC No. 336 of 2018,
h. KShs 422,000 in Kwale RMCC No. 337 of 2018,
i. KShs 117,650 in Kwale RMCC No. 338 of 2018,
j. KShs 198,545 in Kwale RMCC No. 339 of 2018,
k. KShs 132,000 in Kwale RMCC No. 340 of 2018
l. KShs 137,860 in Kwale RMCC No. 385 of 2018,
m. KShs 135,470 in Kwale RMCC No. 387 of 2018,
n. KShs 181,530 in Kwale RMCC No. 388 of 2018,
o. KShs 183,270 in Kwale RMCC No. 391 of 2018,
p. KShs 128,600 in Kwale RMCC No. 392 of 2018,
5. The plaintiff avers further that the defendant herein has neglected to honour the decrees in the primary suits thereby breaching the contract of insurance between the parties.
6. The plaintiff thus brings the present suit for a declaration that the defendant is bound to settle the decretal sums in the primary suits.
7. The defendant entered appearance vide memorandum dated 24/4/2023 and filed a statement of defence of the same date. The defendant denied the plaintiff’s suit in toto.
8. In particular, the defendant denied that it had insured motor vehicle registration number KBV 259 R Isuzu mini bus or issued policy number AM2/080/1/019391/2013 to David Owuor Ongoro for the period commencing 20th July, 2017 to 19th July, 2018. In the alternative the defendant averred that even if such a policy was issued, the same was not in effect and or extend cover at all material times.
9. Further the defendant specifically denied knowledge of any accident against the plaintiff and averred that no summons in respect to the primary suits were ever served upon the defendant’s office. The defendant also denied knowledge of any judgments entered against the plaintiff. The defendant further averred that in the further alternative and without prejudice if indeed the primary suits exist, which it denied, then it had no obligation under any contract of insurance laws in Kenya to participate therein as it was never sued or served. The defendant further averred that it was not obligated to pay the decretal sums in the primary suits as alleged as it had not insured the plaintiff herein at the time of accident. The defendant therefore put the plaintiff to strict proof of its claims.
10. The matter came up for formal proof on 6/11/2024 when the plaintiff David Owuor Ongoro testified. He adopted his witness statement recorded herein dated 5/9/2022 and produced the accompanying documents as per the list filed herein as exhibits.
11. Learned counsel for the plaintiffs filed submissions urging the plaintiffs’ case. Learned counsel submits that the plaintiff has proven, on a balance of probabilities, that he had a valid insurance cover with the defendant and that the accident occurred during the subsistence of the insurance cover. He has cited various authorities on the burden and standard of proof.
12. I have carefully considered the pleadings and the evidence by the plaintiff. The main issues for determination are:
i. Whether motor vehicle registration No. KBV 259R was insured by the defendant; and if so,
ii. Whether the defendant should satisfy the decretal sum in the primary suits listed above.
13. The subject of the suit herein is a declaratory suit, brought under the provisions of the Insurance (Motor Vehicles Third Party Risks) Act, seeking to have the Defendant, an insurance company settle the decree. The decrees were for an award of damages of entered against David Owuor Ongoro the plaintiff herein who contends that at the material time he was insured by the defendant.
14. Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act provides for the duty of an insurer to settle a decretal amount as follows:-
“S. 10 (1). If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of Section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
Provided that the sum payable under a judgment for a liability pursuant to this section shall not exceed the maximum percentage of the sum specified in Section 5 (b) prescribed in respect thereof in the Schedule.”
15. In this case, the plaintiff has shown, through the certificate of insurance No. B8569070 produced as exhibit herein issued to David Owuor Ongoro for motor vehicle registration number KBV 259R was insured by Africa Merchant Assurance Company Ltd, the defendant herein under policy number AM2/080/1/019391/2013 and the policy was in force at the time of the accident on 7/1/2018 as it commenced on 20/7/2017 and was expiring on 19/7/2018.
16. The plaintiff further testified that the defendant acknowledged the insurance cover and honoured part of the claim by taking up the repair of the vehicle through various correspondences it made with respect to the issue, among them an assessment report dated 24/1/2018 for motor vehicle registration number KBV 259 Isuzu NQR66, two letters to the workshop manager Metcast Engineering Works dated 24/1/2018 and 30/4/2018 respectively.
17. The plaintiff’s evidence was not rebutted by the defendant who never turned up for hearing of the case. Even though the defendant filed a defence denying the plaintiff’s claim, no witness was called to testify on behalf of the respondent to substantiate the averments in the statement of defence. Therefore, the evidence tendered by the plaintiff remained uncontroverted as submitted by learned counsel for the plaintiff.
18. In the case cited by learned counsel for the plaintiff of Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Schulter & another [1997] eKLR, the Court of Appeal when considering the issue of a defendant’s failure to call evidence at the hearing observed that apart from filing the statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the plaintiff and that of his witness remained uncontroverted and the statement in the defence that the respondent (plaintiff) had contributed to the accident therefore remained an allegation.
19. In the present case, upon entry of judgment in such accident claims where the defendant in the primary suit was insured, the above provision of the law, Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, requires the insurer to settle the decretal amount as awarded and in accordance with the provisions of the Act. It is quite unfortunate that it is not always the case that the insurers willingly settle the claim and this necessitates the filing of a declaratory suit such as the present one to compel the insurer to settle the decree.
20. I am satisfied from the evidence herein that the defendant was the insurer of the accident vehicle owned by the plaintiff herein and that there are judgments against that plaintiff which the defendant herein is obliged to satisfy. I am satisfied from the plaintiff’s evidence that the defendant was in breach of contract and statutory obligations by failing to settle the decretal sums as adjudged against the plaintiff in the various claims in the primary suits.
21. In view of the foregoing, the court finds that the plaintiff has proved his case on a balance of probabilities and the same is hereby allowed as prayed.
22. Consequently, judgment is hereby entered for the plaintiff against the defendant in terms that a declaration is hereby issued that the defendant is liable to satisfy the decretal sums adjudged in the primary suits as follows:
a. KShs 184,700 in Kwale RMCC No. 300 of 2018,
b. KShs 302,000 in Kwale RMCC No. 302 of 2018,
c. KShs 152,000 in Kwale RMCC No. 314 of 2018,
d. KShs 251,860 in Kwale RMCC No. 327 of 2018,
e. KShs 132,000 in Kwale RMCC No. 328 of 2018,
f. KShs 183,200 in Kwale RMCC No. 329 of 2018,
g. KShs 117,000 in Kwale RMCC No. 336 of 2018,
h. KShs 422,000 in Kwale RMCC No. 337 of 2018,
i. KShs 117,650 in Kwale RMCC No. 338 of 2018,
j. KShs 198,545 in Kwale RMCC No. 339 of 2018,
k. KShs 132,000 in Kwale RMCC No. 340 of 2018
l. KShs 137,860 in Kwale RMCC No. 385 of 2018,
m. KShs 135,470 in Kwale RMCC No. 387 of 2018,
n. KShs 181,530 in Kwale RMCC No. 388 of 2018,
o. KShs 183,270 in Kwale RMCC No. 391 of 2018,
p. KShs 128,600 in Kwale RMCC No. 392 of 2018.
23. The plaintiff also gets the costs of the suit.
24. Orders accordingly.
25. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 26th day of February 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Okong’o for the Plaintiff.
N/A for the Defendant.
David Josek Nanzushi: Court Assistant.
2. The plaintiff avers that the defendant issued him with a third-party motor insurance cover under policy number AM2/080/1/019391/2013 for motor vehicle registration number KBV 259R Isuzu mini bus owned by the plaintiff and against whom judgment was issued in the primary suits. The insurance policy was for the period 20/7/2017 to 19/7/2018 and in respect of any liability which may be incurred by the plaintiff in respect of damage, death of or bodily injury to any person, caused by or arising out of the use on the road of the said vehicle.
3. The plaintiff’s said vehicle was involved in an accident along the Mombasa-Nairobi road at Taru area on or about 7/1/2018 during the subsistence of the insurance cover. The vehicle was damaged and passengers therein injured.
4. Under the said insurance cover, the defendant repaired the said vehicle to the plaintiff’s satisfaction. The injured passengers in the vehicle sued the plaintiff for general and special damages. When the plaintiff was served with summonses to enter appearance in the primary suits above arising from the said accident, he forwarded the same to the defendant who instructed advocates and they entered appearance in the primary suits. However, subsequently the advocates ceased acting due to lack of instructions from the defendant. The plaintiffs in the primary suits were subsequently awarded damages in various amounts being:
a. KShs 184,700 in Kwale RMCC No. 300 of 2018,
b. KShs 302,000 in Kwale RMCC No. 302 of 2018,
c. KShs 152,000 in Kwale RMCC No. 314 of 2018,
d. KShs 251,860 in Kwale RMCC No. 327 of 2018,
e. KShs 132,000 in Kwale RMCC No. 328 of 2018,
f. KShs 183,200 in Kwale RMCC No. 329 of 2018,
g. KShs 117,000 in Kwale RMCC No. 336 of 2018,
h. KShs 422,000 in Kwale RMCC No. 337 of 2018,
i. KShs 117,650 in Kwale RMCC No. 338 of 2018,
j. KShs 198,545 in Kwale RMCC No. 339 of 2018,
k. KShs 132,000 in Kwale RMCC No. 340 of 2018
l. KShs 137,860 in Kwale RMCC No. 385 of 2018,
m. KShs 135,470 in Kwale RMCC No. 387 of 2018,
n. KShs 181,530 in Kwale RMCC No. 388 of 2018,
o. KShs 183,270 in Kwale RMCC No. 391 of 2018,
p. KShs 128,600 in Kwale RMCC No. 392 of 2018,
5. The plaintiff avers further that the defendant herein has neglected to honour the decrees in the primary suits thereby breaching the contract of insurance between the parties.
6. The plaintiff thus brings the present suit for a declaration that the defendant is bound to settle the decretal sums in the primary suits.
7. The defendant entered appearance vide memorandum dated 24/4/2023 and filed a statement of defence of the same date. The defendant denied the plaintiff’s suit in toto.
8. In particular, the defendant denied that it had insured motor vehicle registration number KBV 259 R Isuzu mini bus or issued policy number AM2/080/1/019391/2013 to David Owuor Ongoro for the period commencing 20th July, 2017 to 19th July, 2018. In the alternative the defendant averred that even if such a policy was issued, the same was not in effect and or extend cover at all material times.
9. Further the defendant specifically denied knowledge of any accident against the plaintiff and averred that no summons in respect to the primary suits were ever served upon the defendant’s office. The defendant also denied knowledge of any judgments entered against the plaintiff. The defendant further averred that in the further alternative and without prejudice if indeed the primary suits exist, which it denied, then it had no obligation under any contract of insurance laws in Kenya to participate therein as it was never sued or served. The defendant further averred that it was not obligated to pay the decretal sums in the primary suits as alleged as it had not insured the plaintiff herein at the time of accident. The defendant therefore put the plaintiff to strict proof of its claims.
10. The matter came up for formal proof on 6/11/2024 when the plaintiff David Owuor Ongoro testified. He adopted his witness statement recorded herein dated 5/9/2022 and produced the accompanying documents as per the list filed herein as exhibits.
11. Learned counsel for the plaintiffs filed submissions urging the plaintiffs’ case. Learned counsel submits that the plaintiff has proven, on a balance of probabilities, that he had a valid insurance cover with the defendant and that the accident occurred during the subsistence of the insurance cover. He has cited various authorities on the burden and standard of proof.
12. I have carefully considered the pleadings and the evidence by the plaintiff. The main issues for determination are:
i. Whether motor vehicle registration No. KBV 259R was insured by the defendant; and if so,
ii. Whether the defendant should satisfy the decretal sum in the primary suits listed above.
13. The subject of the suit herein is a declaratory suit, brought under the provisions of the Insurance (Motor Vehicles Third Party Risks) Act, seeking to have the Defendant, an insurance company settle the decree. The decrees were for an award of damages of entered against David Owuor Ongoro the plaintiff herein who contends that at the material time he was insured by the defendant.
14. Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act provides for the duty of an insurer to settle a decretal amount as follows:-
“S. 10 (1). If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of Section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.
Provided that the sum payable under a judgment for a liability pursuant to this section shall not exceed the maximum percentage of the sum specified in Section 5 (b) prescribed in respect thereof in the Schedule.”
15. In this case, the plaintiff has shown, through the certificate of insurance No. B8569070 produced as exhibit herein issued to David Owuor Ongoro for motor vehicle registration number KBV 259R was insured by Africa Merchant Assurance Company Ltd, the defendant herein under policy number AM2/080/1/019391/2013 and the policy was in force at the time of the accident on 7/1/2018 as it commenced on 20/7/2017 and was expiring on 19/7/2018.
16. The plaintiff further testified that the defendant acknowledged the insurance cover and honoured part of the claim by taking up the repair of the vehicle through various correspondences it made with respect to the issue, among them an assessment report dated 24/1/2018 for motor vehicle registration number KBV 259 Isuzu NQR66, two letters to the workshop manager Metcast Engineering Works dated 24/1/2018 and 30/4/2018 respectively.
17. The plaintiff’s evidence was not rebutted by the defendant who never turned up for hearing of the case. Even though the defendant filed a defence denying the plaintiff’s claim, no witness was called to testify on behalf of the respondent to substantiate the averments in the statement of defence. Therefore, the evidence tendered by the plaintiff remained uncontroverted as submitted by learned counsel for the plaintiff.
18. In the case cited by learned counsel for the plaintiff of Edward Mariga through Stanley Mobisa Mariga v Nathaniel David Schulter & another [1997] eKLR, the Court of Appeal when considering the issue of a defendant’s failure to call evidence at the hearing observed that apart from filing the statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the plaintiff and that of his witness remained uncontroverted and the statement in the defence that the respondent (plaintiff) had contributed to the accident therefore remained an allegation.
19. In the present case, upon entry of judgment in such accident claims where the defendant in the primary suit was insured, the above provision of the law, Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, requires the insurer to settle the decretal amount as awarded and in accordance with the provisions of the Act. It is quite unfortunate that it is not always the case that the insurers willingly settle the claim and this necessitates the filing of a declaratory suit such as the present one to compel the insurer to settle the decree.
20. I am satisfied from the evidence herein that the defendant was the insurer of the accident vehicle owned by the plaintiff herein and that there are judgments against that plaintiff which the defendant herein is obliged to satisfy. I am satisfied from the plaintiff’s evidence that the defendant was in breach of contract and statutory obligations by failing to settle the decretal sums as adjudged against the plaintiff in the various claims in the primary suits.
21. In view of the foregoing, the court finds that the plaintiff has proved his case on a balance of probabilities and the same is hereby allowed as prayed.
22. Consequently, judgment is hereby entered for the plaintiff against the defendant in terms that a declaration is hereby issued that the defendant is liable to satisfy the decretal sums adjudged in the primary suits as follows:
a. KShs 184,700 in Kwale RMCC No. 300 of 2018,
b. KShs 302,000 in Kwale RMCC No. 302 of 2018,
c. KShs 152,000 in Kwale RMCC No. 314 of 2018,
d. KShs 251,860 in Kwale RMCC No. 327 of 2018,
e. KShs 132,000 in Kwale RMCC No. 328 of 2018,
f. KShs 183,200 in Kwale RMCC No. 329 of 2018,
g. KShs 117,000 in Kwale RMCC No. 336 of 2018,
h. KShs 422,000 in Kwale RMCC No. 337 of 2018,
i. KShs 117,650 in Kwale RMCC No. 338 of 2018,
j. KShs 198,545 in Kwale RMCC No. 339 of 2018,
k. KShs 132,000 in Kwale RMCC No. 340 of 2018
l. KShs 137,860 in Kwale RMCC No. 385 of 2018,
m. KShs 135,470 in Kwale RMCC No. 387 of 2018,
n. KShs 181,530 in Kwale RMCC No. 388 of 2018,
o. KShs 183,270 in Kwale RMCC No. 391 of 2018,
p. KShs 128,600 in Kwale RMCC No. 392 of 2018.
23. The plaintiff also gets the costs of the suit.
24. Orders accordingly.
25. Delivered, dated and signed at Kwale on the Virtual Platform, Teams this 26th day of February 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Okong’o for the Plaintiff.
N/A for the Defendant.
David Josek Nanzushi: Court Assistant.