Background
1. In its decision of 16th April 2025, the Trial Court, dismissed the Appellant’s suit with costs to the Respondent on account that she failed to prove her case on a balance of probability.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 30th April 2025. She relied on six (6) grounds of appeal.
3. Her written submissions were dated 10th April 2026 while those of the Respondent were dated 30th April 2026. The Judgment herein is based on the said written submissions which the parties relied upon in their entirety.
Analysis of the case.
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. In the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
5. Having looked at the Grounds of Appeal and parties’ written submissions, it appears that all grounds were related and that the issue that had been placed before it for determination was;
Whether or not the Trial Court erred dismissing the Appellant’s suit on account that a statutory notice was not served.
6. The Appellant submitted that the Trial Court misinterpreted the provisions of Section 10(2) (a) of Cap 405. She argued that the requirement to serve a statutory notice applied to the commencement of the proceedings in which judgment was given (the primary suit). She was emphatic that the intent of Section 10(2)(a) was to ensure the insurer was aware of the commencement of the primary action. She pointed out that in the primary suit, Milimani MCCC E2209 of 2021, the Respondent acted upon the statutory notice issued by the Appellant by appointing an advocate where the statutory notice was admitted into evidence and formed part of the judicial record. Having participated in the primary suit through their advocate, she asserted that the Respondent was estopped from denying knowledge or service of the notice.
7. She maintained that pursuant to Section 10(2)(a) Cap 405, the notice ought to be filed before or within 30 days upon filing of the primary suit and not the declaratory suit and she cited Mvuria Magwabi Chandago vs African Merchant Assurance Co. Ltd [2017] eKLR and UAP Insurance Co. Ltd vs Patrick Charo Chiro [2021] eKLR to support her assertation.
8. She faulted the Trial Court reliance on the case of Keneth Nyaga Mwige vs Austin Kiguta & Others (2015) eKLR to hold that documents must be formally produced. She asserted that failure by the Trial Court to consider the evidence in the primary suit, the conduct of the Respondent of appointing counsel in the primary suit and the Appellant's submissions explaining service of the statutory notice in the primary suit amounted to selective evaluation of evidence. She maintained that requiring fresh proof of service of statutory notice in the declaratory suit was a misapplication of the law.
9. She further submitted that after the delivery of the judgment in the primary suit on 30th November 2023, her advocate on 8th December 2023 wrote an email to the Respondent’s advocate for payment of the decretal sum together with costs. In response, Respondent’s Advocated on 14th December 2023 requested for 30 more days to engage their client to process payment. She asserted that the fact that the Respondent’s advocate negotiated on timelines of payment of the decretal sum was a clear illustration that the Respondent acknowledged the proceedings in the primary suit and their obligation to settle the decree.
10. She further faulted the Trial Court finding that Article 159(2)(d) of the Constitution could not upset known legal requirements and submitted that where notice was served in the primary suit, insisting on its production in the declaratory suit was an elevation of form over substance.
11. On its part, the Respondent invoked Section 10(2)(a) Cap 405 and stated that the notice requirement was an absolute condition precedent to the enforcement of any judgment against an insurer. It was emphatic that in the declaratory suit, it fell upon the Appellant to prove that she had complied with the mandatory notice requirement under Section 10(2)(a) of Cap 405. It pointed out that during cross-examination in the declaratory suit, the Appellant admitted that the statutory notice was not filed and the Learned Trial Magistrate, upon checking the Court's Case Tracking System (CTS), confirmed that no statutory notice had been filed or admitted as an exhibit in the declaratory suit.
12. It argued that though the statutory notice was admitted in the primary suit, the notice was not produced and admitted in the declaratory suit and it relied on the case of Keneth Nyaga Mwige vs Respondent (full citation not given) to emphasis that a document that is not produced and formally admitted as an exhibit was not evidence.
13. It also pointed out that the Appellant’s suggestion that the Trial Court should have taken judicial notice of the primary suit record was misconceived as judicial notice applied to matters of common knowledge and it did not operate to dispense with a party's obligation to produce documentary evidence. It maintained that the declaratory suit was an independent suit against an insurer who was not a party to the primary suit hence the Appellant had the burden of proving that the statutory notice was served. It asserted that pointing out to documents produced elsewhere undermined fabric of evidence law and the integrity of individual proceedings.
14. It pointed out that its move of appointing an advocate for its insured in the primary suit was consistent with its obligations to its insured and could not be taken as evidence of receipt of a statutory notice addressed to the insurer itself. It submitted that the Appellant testified that what she had was a demand notice and not a statutory notice and it argued that a demand notice could not satisfy the requirement under Section 10(2)(a).
15. On the issue of email dated 14th December 2023, it argued that the said email was written by Nduati & Company Advocates, who were on record as advocates for the insured and their statement did not bind the insurer, and, could not be taken as an authorized acknowledgment of liability. It also asserted that a request for time to process payment did not amount to an unequivocal acknowledgment of liability that could found an estoppel as estoppel by conduct required a clear and unequivocal representation, acted upon to the detriment of the party asserting the estoppel. It also pointed out that there could be no estoppel against a statute.
16. On the invocation of Article 159 of the Constitution by the Appellant, it cited Mvuria Magwabi Chandago vs UAP Insurance Co Ltd & another. It asserted that Article 159 could not apply since it is well settled that the said Article was never intended to be a general license for courts to ignore clear statutory provisions. It was therefore emphatic that the Trial Court did not error in its finding.
17. A perusal of the record showed that the Appellant filed a declaratory suit vide a plaint dated 26th March 2024 whereby she averred that judgment was entered in her favour against the insured for a sum of Kshs 1,245,226/= being general damages, special damages, costs and interest of the suit. She claimed that the Respondent failed to satisfy the decree and she therefore sought for an order that the Respondent was liable to satisfy the decree and order compelling the Respondent to satisfy the said decree.
18. In rejoinder, the Respondent filed a statement of defence dated 29th April 2024 and denied the content of the plaint especially being the insurer, the occurrence of the accident, the existence of the primary suit and it denied service of the statutory notice.
19. The Appellant filed a reply to defence statement dated 21st May 2024 and she maintained that the Respondent was the insurer and even instructed a firm of advocate to represent it, referred her to a second medical examination and that the Respondent’s advocate even requested for time to pursue payment from their client.
20. The Trial Court record showed that the Appellant testified and adopted her witness statement dated 26th march 2024 whereby in the said written statement, she reiterated the averments in her plaint. She also produced filed documents as exhibits. She testified on cross examination that the statutory notice was not filed and there was a demand notice. She stated on re-examination that in her list of documents, there was a demand letter and notice to instate the suit.
21. The Respondent closed their case without calling any witness at the Trial Court.
Determination.
22. As an issue has been raised on the service of the notice under Section 10 in the primary suit, this Court must determine from the Record of Appeal whether there was a statutory notice in the case. In my view once the Respondent raised the issue of service, the Appellant was required to avail evidence in the declaratory proceedings that indeed notice was served in the primary suit. Both parties submitted on a position that supports their case but what remains is that the Appellant ought to have proved service.
Section 10 reads as follows:
10 (2) No sum shall be payable by an insurer under the foregoing provisions of the Section.
(a)In respect of any Judgement, unless before or within 14days after the commencement of the proceedings in which the Judgement was give, the insurer had notice of the bringing of the proceedings…”
23. In this case the only issue is whether the statutory notice was served in the primary suit, I must make it clear that I agree with the Appellant that the notice being discussed herein is in the Primary Suit and since the parties do not dispute the existence of other requirements, this Court shall only focus on the service of the Notice. It is further worth noting that submissions cannot take place of evidence and the Appellant must demonstrate compliance with the above section. From the proceedings at the Trial Court in cross examination of the Appellant, she informed Court that there was no statutory notice which was filed but there was a demand notice. Upon re-examination she informed Court that in her list of documents there was a demand letter and notice to institute suit.
24. From the pleadings on the record of Appeal on page 11 there is list of documents which lists number ( c) as demand letter and the notice to institute the suit. My perusal of the record of appeal, I see a demand dated 8th December 2023 seeking settlement of the decretal amount and emails dated 8th December 3023 and 14th December 2023. The question before me is can these communications between parties act a notice under Section 10 of CAP405.
25. Upon further perusal of the record of appeal, I have not seen a notice envisioned by Section 10 of CAP 405. The Appellant has gone to great lengths to explain its case but it has not pointed this Court to the Notice required by Law. It would have been crucial for the Appellant to clearly demonstrate that the Notice was served in the primary suit once the issue was raised in the Trial Court, this was a core issue which the Appellant failed to demonstrate that it complied with the Law.
26. In the Appellant’s testimony at the Trial Court, she was not able to prove that the Notice was served, in my view the onus is on the Appellant under the Evidence Act to prove that she served the Notice. In this case no evidence has been availed to support her averments. Section 10 in my view is a mandatory statutory requirement and conduct of parties cannot dispense with such a requirement.
27. The Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR) on the issue of burden of proof held as follows:
“Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
28. I am therefore inclined to agree with the Trial Court’s findings that the Appellant has failed to prove its case on a balance of probability. I therefore dismiss the Appeal. Each part will bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 5th day of August 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Kinyanjui h/b Kinyua Learned Counsel for the Appellant.
Jemutai h/b Muema Learned Counsel for the Respondent.
Michael - Court Assistant.
1. In its decision of 16th April 2025, the Trial Court, dismissed the Appellant’s suit with costs to the Respondent on account that she failed to prove her case on a balance of probability.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 30th April 2025. She relied on six (6) grounds of appeal.
3. Her written submissions were dated 10th April 2026 while those of the Respondent were dated 30th April 2026. The Judgment herein is based on the said written submissions which the parties relied upon in their entirety.
Analysis of the case.
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. In the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
5. Having looked at the Grounds of Appeal and parties’ written submissions, it appears that all grounds were related and that the issue that had been placed before it for determination was;
Whether or not the Trial Court erred dismissing the Appellant’s suit on account that a statutory notice was not served.
6. The Appellant submitted that the Trial Court misinterpreted the provisions of Section 10(2) (a) of Cap 405. She argued that the requirement to serve a statutory notice applied to the commencement of the proceedings in which judgment was given (the primary suit). She was emphatic that the intent of Section 10(2)(a) was to ensure the insurer was aware of the commencement of the primary action. She pointed out that in the primary suit, Milimani MCCC E2209 of 2021, the Respondent acted upon the statutory notice issued by the Appellant by appointing an advocate where the statutory notice was admitted into evidence and formed part of the judicial record. Having participated in the primary suit through their advocate, she asserted that the Respondent was estopped from denying knowledge or service of the notice.
7. She maintained that pursuant to Section 10(2)(a) Cap 405, the notice ought to be filed before or within 30 days upon filing of the primary suit and not the declaratory suit and she cited Mvuria Magwabi Chandago vs African Merchant Assurance Co. Ltd [2017] eKLR and UAP Insurance Co. Ltd vs Patrick Charo Chiro [2021] eKLR to support her assertation.
8. She faulted the Trial Court reliance on the case of Keneth Nyaga Mwige vs Austin Kiguta & Others (2015) eKLR to hold that documents must be formally produced. She asserted that failure by the Trial Court to consider the evidence in the primary suit, the conduct of the Respondent of appointing counsel in the primary suit and the Appellant's submissions explaining service of the statutory notice in the primary suit amounted to selective evaluation of evidence. She maintained that requiring fresh proof of service of statutory notice in the declaratory suit was a misapplication of the law.
9. She further submitted that after the delivery of the judgment in the primary suit on 30th November 2023, her advocate on 8th December 2023 wrote an email to the Respondent’s advocate for payment of the decretal sum together with costs. In response, Respondent’s Advocated on 14th December 2023 requested for 30 more days to engage their client to process payment. She asserted that the fact that the Respondent’s advocate negotiated on timelines of payment of the decretal sum was a clear illustration that the Respondent acknowledged the proceedings in the primary suit and their obligation to settle the decree.
10. She further faulted the Trial Court finding that Article 159(2)(d) of the Constitution could not upset known legal requirements and submitted that where notice was served in the primary suit, insisting on its production in the declaratory suit was an elevation of form over substance.
11. On its part, the Respondent invoked Section 10(2)(a) Cap 405 and stated that the notice requirement was an absolute condition precedent to the enforcement of any judgment against an insurer. It was emphatic that in the declaratory suit, it fell upon the Appellant to prove that she had complied with the mandatory notice requirement under Section 10(2)(a) of Cap 405. It pointed out that during cross-examination in the declaratory suit, the Appellant admitted that the statutory notice was not filed and the Learned Trial Magistrate, upon checking the Court's Case Tracking System (CTS), confirmed that no statutory notice had been filed or admitted as an exhibit in the declaratory suit.
12. It argued that though the statutory notice was admitted in the primary suit, the notice was not produced and admitted in the declaratory suit and it relied on the case of Keneth Nyaga Mwige vs Respondent (full citation not given) to emphasis that a document that is not produced and formally admitted as an exhibit was not evidence.
13. It also pointed out that the Appellant’s suggestion that the Trial Court should have taken judicial notice of the primary suit record was misconceived as judicial notice applied to matters of common knowledge and it did not operate to dispense with a party's obligation to produce documentary evidence. It maintained that the declaratory suit was an independent suit against an insurer who was not a party to the primary suit hence the Appellant had the burden of proving that the statutory notice was served. It asserted that pointing out to documents produced elsewhere undermined fabric of evidence law and the integrity of individual proceedings.
14. It pointed out that its move of appointing an advocate for its insured in the primary suit was consistent with its obligations to its insured and could not be taken as evidence of receipt of a statutory notice addressed to the insurer itself. It submitted that the Appellant testified that what she had was a demand notice and not a statutory notice and it argued that a demand notice could not satisfy the requirement under Section 10(2)(a).
15. On the issue of email dated 14th December 2023, it argued that the said email was written by Nduati & Company Advocates, who were on record as advocates for the insured and their statement did not bind the insurer, and, could not be taken as an authorized acknowledgment of liability. It also asserted that a request for time to process payment did not amount to an unequivocal acknowledgment of liability that could found an estoppel as estoppel by conduct required a clear and unequivocal representation, acted upon to the detriment of the party asserting the estoppel. It also pointed out that there could be no estoppel against a statute.
16. On the invocation of Article 159 of the Constitution by the Appellant, it cited Mvuria Magwabi Chandago vs UAP Insurance Co Ltd & another. It asserted that Article 159 could not apply since it is well settled that the said Article was never intended to be a general license for courts to ignore clear statutory provisions. It was therefore emphatic that the Trial Court did not error in its finding.
17. A perusal of the record showed that the Appellant filed a declaratory suit vide a plaint dated 26th March 2024 whereby she averred that judgment was entered in her favour against the insured for a sum of Kshs 1,245,226/= being general damages, special damages, costs and interest of the suit. She claimed that the Respondent failed to satisfy the decree and she therefore sought for an order that the Respondent was liable to satisfy the decree and order compelling the Respondent to satisfy the said decree.
18. In rejoinder, the Respondent filed a statement of defence dated 29th April 2024 and denied the content of the plaint especially being the insurer, the occurrence of the accident, the existence of the primary suit and it denied service of the statutory notice.
19. The Appellant filed a reply to defence statement dated 21st May 2024 and she maintained that the Respondent was the insurer and even instructed a firm of advocate to represent it, referred her to a second medical examination and that the Respondent’s advocate even requested for time to pursue payment from their client.
20. The Trial Court record showed that the Appellant testified and adopted her witness statement dated 26th march 2024 whereby in the said written statement, she reiterated the averments in her plaint. She also produced filed documents as exhibits. She testified on cross examination that the statutory notice was not filed and there was a demand notice. She stated on re-examination that in her list of documents, there was a demand letter and notice to instate the suit.
21. The Respondent closed their case without calling any witness at the Trial Court.
Determination.
22. As an issue has been raised on the service of the notice under Section 10 in the primary suit, this Court must determine from the Record of Appeal whether there was a statutory notice in the case. In my view once the Respondent raised the issue of service, the Appellant was required to avail evidence in the declaratory proceedings that indeed notice was served in the primary suit. Both parties submitted on a position that supports their case but what remains is that the Appellant ought to have proved service.
Section 10 reads as follows:
10 (2) No sum shall be payable by an insurer under the foregoing provisions of the Section.
(a)In respect of any Judgement, unless before or within 14days after the commencement of the proceedings in which the Judgement was give, the insurer had notice of the bringing of the proceedings…”
23. In this case the only issue is whether the statutory notice was served in the primary suit, I must make it clear that I agree with the Appellant that the notice being discussed herein is in the Primary Suit and since the parties do not dispute the existence of other requirements, this Court shall only focus on the service of the Notice. It is further worth noting that submissions cannot take place of evidence and the Appellant must demonstrate compliance with the above section. From the proceedings at the Trial Court in cross examination of the Appellant, she informed Court that there was no statutory notice which was filed but there was a demand notice. Upon re-examination she informed Court that in her list of documents there was a demand letter and notice to institute suit.
24. From the pleadings on the record of Appeal on page 11 there is list of documents which lists number ( c) as demand letter and the notice to institute the suit. My perusal of the record of appeal, I see a demand dated 8th December 2023 seeking settlement of the decretal amount and emails dated 8th December 3023 and 14th December 2023. The question before me is can these communications between parties act a notice under Section 10 of CAP405.
25. Upon further perusal of the record of appeal, I have not seen a notice envisioned by Section 10 of CAP 405. The Appellant has gone to great lengths to explain its case but it has not pointed this Court to the Notice required by Law. It would have been crucial for the Appellant to clearly demonstrate that the Notice was served in the primary suit once the issue was raised in the Trial Court, this was a core issue which the Appellant failed to demonstrate that it complied with the Law.
26. In the Appellant’s testimony at the Trial Court, she was not able to prove that the Notice was served, in my view the onus is on the Appellant under the Evidence Act to prove that she served the Notice. In this case no evidence has been availed to support her averments. Section 10 in my view is a mandatory statutory requirement and conduct of parties cannot dispense with such a requirement.
27. The Court of Appeal in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] KECA 166 (KLR) on the issue of burden of proof held as follows:
“Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
28. I am therefore inclined to agree with the Trial Court’s findings that the Appellant has failed to prove its case on a balance of probability. I therefore dismiss the Appeal. Each part will bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 5th day of August 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Kinyanjui h/b Kinyua Learned Counsel for the Appellant.
Jemutai h/b Muema Learned Counsel for the Respondent.
Michael - Court Assistant.