Introduction
1. The Plaintiff, Directline Assurance Company Limited, instituted this suit by way of a plaint seeking declaratory relief arising from a road traffic accident involving motor vehicle registration number KCE 829C. The Plaintiff contends that it had issued a third-party motor insurance policy to the Defendant in respect of the said vehicle, but that the Defendant breached the terms of the policy by permitting the vehicle to be driven by an unlicensed and unauthorised person.
2. The Interested Party is the personal representative of the estate of the late Abel Dickson Michira, who is said to have died following the road traffic accident that occurred on 26th November 2019 along the Mogonga–Kionyo road involving the said vehicle .
3. The Defendant and the Interested Party failed to enter an appearance or file any defence within the period prescribed by law. Consequently, default judgment was entered on 11th March 2023, and the matter proceeded ex parte by way of formal proof.
The Plaintiff’s Case
1. The Plaintiff’s case is that at all material times, the Defendant was the insured, registered and/or beneficial owner of motor vehicle registration number KCE 829C. The Plaintiff issued policy number 09516227 in favour of the Defendant in respect of the said vehicle.
2. It was a term of the policy that the insured would lose rights under the policy if the vehicle was driven by a person who was not duly licensed or authorised, or if there was a breach of the express or implied terms of the policy.
3. The Plaintiff averred that on or about 26th November 2019, the said motor vehicle was involved in a road traffic accident along the Mogonga–Kionyo road. The deceased, Abel Dickson Michira, who was a pedestrian, sustained fatal injuries.
4. The Plaintiff further asserted that investigations established that, at the time of the accident, motor vehicle registration number KCE 829C was operated by an unlicensed and unauthorised driver. On this basis, the Plaintiff seeks to avoid or repudiate the policy and to be relieved from liability arising from the accident.
5. The Plaintiff’s witness, Rayn Wendo, a senior claims officer, testified that the Defendant breached the policy by allowing the vehicle to be driven by an unlicensed and unauthorised driver, concealing material facts related to the accident, and failing to comply with the policy terms and conditions.
Issues for Determination
1. From the pleadings and the evidence presented, the following issues arise for determination:
a. Whether the Plaintiff proved that there existed a valid insurance policy between it and the Defendant in respect of motor vehicle registration number KCE 829C;
b. Whether the Defendant breached the terms of the policy;
c. Whether the Plaintiff is entitled to avoid or repudiate the policy; and
d. What orders should be issued?
Analysis
1. Although this matter proceeded ex parte, the Plaintiff was still required to prove its case on a balance of probabilities. The entry of default judgment did not relieve the Plaintiff of the legal burden to establish the factual and legal basis for the declaratory orders sought, as was held in the case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, where the Court of Appeal held that the burden of proof remains on the party who would fail if no evidence were called on either side. Similarly, in Gichinga Kibutha v Caroline Nduku [2018] eKLR, the court observed that formal proof is not a mere formality; the plaintiff must tender evidence sufficient to sustain the claim.
2. The Plaintiff produced evidence demonstrating issuance of motor vehicle insurance policy number 09516227 to the Defendant for motor vehicle registration number KCE 829C. This evidence was not controverted. The Court is satisfied that an insurer-insured relationship existed between the Plaintiff and the Defendant regarding the subject motor vehicle.
3. The next question is whether there was breach of the policy. The Plaintiff’s evidence was that the policy was a third party cover and that it contained conditions limiting the Plaintiff’s liability where the vehicle was driven by an unlicensed or unauthorised person. The Plaintiff’s witness testified that investigations revealed that the driver at the time of the accident was unlicensed and unauthorised.
4. That evidence was not challenged by cross-examination or rebutted by any pleading or testimony from the Defendant or the Interested Party. The Court therefore has before it uncontroverted evidence that the vehicle was being driven in breach of the policy conditions.
5. However, the Court remains mindful that even uncontroverted evidence must be evaluated to ensure it establishes a lawful basis for the relief sought. In this case, the Plaintiff has submitted the policy, the pleaded policy conditions, the accident report, and the witness statement detailing the nature of the breach.
6. The legal foundation of the Plaintiff’s claim is the insurer’s right, in appropriate circumstances, to avoid liability where the insured has breached a material policy condition or where the insurer is entitled to repudiate the policy under the terms of the contract of insurance. The Motor Vehicles Third Party Risks Act, Cap 405, recognises the statutory obligation of an insurer to satisfy judgments obtained by third parties against insured persons, but it also preserves, within defined limits, the right of the insurer to seek declaratory relief where it is entitled to avoid or repudiate the policy.
7. Section 10 of the Motor Vehicles Third Party Risks Act must be understood in light of the protective purpose of compulsory third-party insurance. The statute protects innocent third parties, but it does not confer a licence upon an insured to breach fundamental policy conditions and then compel the insurer to indemnify him without qualification. Where the insurer proves a contractual and statutory basis for avoidance or repudiation, the Court may grant an appropriate declaration.
8. In this matter, the Plaintiff’s evidence establishes that the Defendant permitted motor vehicle registration number KCE 829C to be driven by an unlicensed and unauthorised person. That was a material breach of the policy. The breach went to the root of the insurance contract because the identity, authority and licensing status of the driver are central to the risk assumed by an insurer under a motor vehicle policy.
9. The Defendant did not appear to contest the breach and did not demonstrate that the driver was licensed, authorised, or otherwise covered by the policy terms. Similarly, the Interested Party did not present any evidence to challenge the Plaintiff’s claim.
10. On the evidence before this Court, I am satisfied that the Plaintiff has proved, on a balance of probabilities, that it is entitled to repudiate or avoid liability under policy number 09516227 in respect of claims arising from the accident of 26th November 2019 involving motor vehicle registration number KCE 829C.
Disposition
1. The Plaintiff has proved its case on a balance of probabilities. Accordingly, judgment is entered for the Plaintiff against the Defendant in the following terms:
a. A declaration is hereby issued that the Plaintiff, Directline Assurance Company Limited, is entitled to avoid and/or repudiate insurance policy number 09516227 issued to the Defendant in respect of motor vehicle registration number KCE 829C, arising from the accident that occurred on 26th November 2019 along the Mogonga–Kionyo road.
b. A declaration is hereby issued that the Plaintiff is not contractually or legally liable to indemnify the Defendant in respect of claims arising from the said accident, including claims by the Interested Party and/or the estate of the late Abel Dickson Michira, subject always to the applicable provisions of the Motor Vehicles Third Party Risks Act.
c. The Plaintiff shall have the costs of this suit.
1. Orders accordingly.
T. A. ODERA
JUDGE
19.5.26
Delivered virtually via Teams platform on this 19th day of May 2026 in the presence of CA Kipchirchir. The Plaintiff is absent.
1. The Plaintiff, Directline Assurance Company Limited, instituted this suit by way of a plaint seeking declaratory relief arising from a road traffic accident involving motor vehicle registration number KCE 829C. The Plaintiff contends that it had issued a third-party motor insurance policy to the Defendant in respect of the said vehicle, but that the Defendant breached the terms of the policy by permitting the vehicle to be driven by an unlicensed and unauthorised person.
2. The Interested Party is the personal representative of the estate of the late Abel Dickson Michira, who is said to have died following the road traffic accident that occurred on 26th November 2019 along the Mogonga–Kionyo road involving the said vehicle .
3. The Defendant and the Interested Party failed to enter an appearance or file any defence within the period prescribed by law. Consequently, default judgment was entered on 11th March 2023, and the matter proceeded ex parte by way of formal proof.
The Plaintiff’s Case
1. The Plaintiff’s case is that at all material times, the Defendant was the insured, registered and/or beneficial owner of motor vehicle registration number KCE 829C. The Plaintiff issued policy number 09516227 in favour of the Defendant in respect of the said vehicle.
2. It was a term of the policy that the insured would lose rights under the policy if the vehicle was driven by a person who was not duly licensed or authorised, or if there was a breach of the express or implied terms of the policy.
3. The Plaintiff averred that on or about 26th November 2019, the said motor vehicle was involved in a road traffic accident along the Mogonga–Kionyo road. The deceased, Abel Dickson Michira, who was a pedestrian, sustained fatal injuries.
4. The Plaintiff further asserted that investigations established that, at the time of the accident, motor vehicle registration number KCE 829C was operated by an unlicensed and unauthorised driver. On this basis, the Plaintiff seeks to avoid or repudiate the policy and to be relieved from liability arising from the accident.
5. The Plaintiff’s witness, Rayn Wendo, a senior claims officer, testified that the Defendant breached the policy by allowing the vehicle to be driven by an unlicensed and unauthorised driver, concealing material facts related to the accident, and failing to comply with the policy terms and conditions.
Issues for Determination
1. From the pleadings and the evidence presented, the following issues arise for determination:
a. Whether the Plaintiff proved that there existed a valid insurance policy between it and the Defendant in respect of motor vehicle registration number KCE 829C;
b. Whether the Defendant breached the terms of the policy;
c. Whether the Plaintiff is entitled to avoid or repudiate the policy; and
d. What orders should be issued?
Analysis
1. Although this matter proceeded ex parte, the Plaintiff was still required to prove its case on a balance of probabilities. The entry of default judgment did not relieve the Plaintiff of the legal burden to establish the factual and legal basis for the declaratory orders sought, as was held in the case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, where the Court of Appeal held that the burden of proof remains on the party who would fail if no evidence were called on either side. Similarly, in Gichinga Kibutha v Caroline Nduku [2018] eKLR, the court observed that formal proof is not a mere formality; the plaintiff must tender evidence sufficient to sustain the claim.
2. The Plaintiff produced evidence demonstrating issuance of motor vehicle insurance policy number 09516227 to the Defendant for motor vehicle registration number KCE 829C. This evidence was not controverted. The Court is satisfied that an insurer-insured relationship existed between the Plaintiff and the Defendant regarding the subject motor vehicle.
3. The next question is whether there was breach of the policy. The Plaintiff’s evidence was that the policy was a third party cover and that it contained conditions limiting the Plaintiff’s liability where the vehicle was driven by an unlicensed or unauthorised person. The Plaintiff’s witness testified that investigations revealed that the driver at the time of the accident was unlicensed and unauthorised.
4. That evidence was not challenged by cross-examination or rebutted by any pleading or testimony from the Defendant or the Interested Party. The Court therefore has before it uncontroverted evidence that the vehicle was being driven in breach of the policy conditions.
5. However, the Court remains mindful that even uncontroverted evidence must be evaluated to ensure it establishes a lawful basis for the relief sought. In this case, the Plaintiff has submitted the policy, the pleaded policy conditions, the accident report, and the witness statement detailing the nature of the breach.
6. The legal foundation of the Plaintiff’s claim is the insurer’s right, in appropriate circumstances, to avoid liability where the insured has breached a material policy condition or where the insurer is entitled to repudiate the policy under the terms of the contract of insurance. The Motor Vehicles Third Party Risks Act, Cap 405, recognises the statutory obligation of an insurer to satisfy judgments obtained by third parties against insured persons, but it also preserves, within defined limits, the right of the insurer to seek declaratory relief where it is entitled to avoid or repudiate the policy.
7. Section 10 of the Motor Vehicles Third Party Risks Act must be understood in light of the protective purpose of compulsory third-party insurance. The statute protects innocent third parties, but it does not confer a licence upon an insured to breach fundamental policy conditions and then compel the insurer to indemnify him without qualification. Where the insurer proves a contractual and statutory basis for avoidance or repudiation, the Court may grant an appropriate declaration.
8. In this matter, the Plaintiff’s evidence establishes that the Defendant permitted motor vehicle registration number KCE 829C to be driven by an unlicensed and unauthorised person. That was a material breach of the policy. The breach went to the root of the insurance contract because the identity, authority and licensing status of the driver are central to the risk assumed by an insurer under a motor vehicle policy.
9. The Defendant did not appear to contest the breach and did not demonstrate that the driver was licensed, authorised, or otherwise covered by the policy terms. Similarly, the Interested Party did not present any evidence to challenge the Plaintiff’s claim.
10. On the evidence before this Court, I am satisfied that the Plaintiff has proved, on a balance of probabilities, that it is entitled to repudiate or avoid liability under policy number 09516227 in respect of claims arising from the accident of 26th November 2019 involving motor vehicle registration number KCE 829C.
Disposition
1. The Plaintiff has proved its case on a balance of probabilities. Accordingly, judgment is entered for the Plaintiff against the Defendant in the following terms:
a. A declaration is hereby issued that the Plaintiff, Directline Assurance Company Limited, is entitled to avoid and/or repudiate insurance policy number 09516227 issued to the Defendant in respect of motor vehicle registration number KCE 829C, arising from the accident that occurred on 26th November 2019 along the Mogonga–Kionyo road.
b. A declaration is hereby issued that the Plaintiff is not contractually or legally liable to indemnify the Defendant in respect of claims arising from the said accident, including claims by the Interested Party and/or the estate of the late Abel Dickson Michira, subject always to the applicable provisions of the Motor Vehicles Third Party Risks Act.
c. The Plaintiff shall have the costs of this suit.
1. Orders accordingly.
T. A. ODERA
JUDGE
19.5.26
Delivered virtually via Teams platform on this 19th day of May 2026 in the presence of CA Kipchirchir. The Plaintiff is absent.