(Being an appeal against the judgement and decree dated the 5 th day of September, 2025 of the Honourable Caroline K. Cheptoo Principal Magistrate, in Kilungu Magistrate Court Case Number E308 of 2023)
JUDGMENT.
Introduction
1. By way of a Plaint dated the 3 rd of October, 2025 the Respondents, then Plaintiffs commenced proceedings against the Appellant then the Defendants, seeking to enforce judgment and decree obtained in Kilungu PMCC No. 248 of 2022, Regina Mwikali Makusa & Stephen Mutunga Kingoo (Suing as the Administrators of the Estate of the late Alexander Musyoki Kingoo) vs Intra Africa Assurance Co. Ltd. ( hereinafter referred to as “the primary suit” ) pursuant to the provisions of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405 of the Laws of Kenya .
2. The Appellant’s case was pleaded in its defence dated the 20 th November, 2023 in which it admits that the deceased was a passenger in motor vehicle registration number KDH 492H ( herein referred to as the “suit motor vehicle” ) and having received a statutory notice they averred that such a notice should not be given on behalf of passenger in the relevant motor vehicle when there is no passenger cover by an insurer as the Insurance (Motor Vehicle Third Party Risks Act) Cap 405 does not entitle a passenger in the insured vehicle to sue the insurer. The Appellant further averred that as regards to the accident, they deny the allegation on how the accident occurred hence they are stranger on the allegations of how the accident occurred.
3. The suit was heard on 18/02/2025 for the Plaintiff’s case and on the 03/06/2025 for the Defence case. By a judgement dated the 5/9/2025, the trial court issued a declaration that the Appellant was duly bound to honour and/or satisfy the judgement in the primary suit in the sum of Kshs. 9,101,817.00 plus costs and interests thereof.
4. Being aggrieved by the court’s decision, the Appellant preferred this appeal. The Memorandum of Appeal sets out 3 grounds of appeal as follows:
1. The Honourable Court erred in failing to consider and apply limits of liability – Part A of the Policy Schedule which excluded cover for passengers as follows;
A. In respect of persons being carried in or upon or entering or getting onto or alighting from the vehicle
1) Death of or Bodily injury to any one person….0.00
2. The Honourable Court erred in finding that the insurance policy covered liability for the death of the deceased who was a passenger in the Motor Vehicle registration number KDH492D at the time of his death.
3. Without admitting liability, without prejudice to the foregoing and in the alternative, the Honourable Court erred in finding that the Appellant is liable to settle the entire sum of Kshs. 9,101,817.00 despite a policy of Kshs. 3,000,000.00
5. The Appellant prays that:
1) That this Appeal be allowed.
2) That the Judgement appealed against dated 5/9/2025 be set aside.
3) That the Respondents’ suit be dismissed.
4) That the Appellant do have costs of this appeal and of the suit before the principal magistrates’ court .
6. The appeal was canvassed through written submissions. The Appellant filed its written submissions dated the 15/5/2026 whereas the Respondent filed their written submission dated the 22/5/2026.
7. This being the first appellate court, it is my duty under Section 78 of the Civil Procedure Act to subject the whole evidence to a fresh and exhaustive scrutiny and make my own conclusions about it bearing in mind that I did not have the opportunity of seeing and hearing the witness first hand. ( See Seascapes Ltd vs Development Finance Company of Kenya Ltd [2009] KLR, 384 )
8. I have carefully considered the record of appeal, the rival submissions by parties’ counsel, the authorities cited by each counsel and the applicable law. The grounds of appeal can be collapsed into two major issues for determination by this court namely:
a) Whether the learned trial magistrate erred in law and fact in finding that the Deceased was covered under Part B of the Appellant's policy.
b) Whether the learned trial magistrate erred in holding the Appellant liable to satisfy the entire decretal sum of Kshs. 9,101,817.00
9. On the first issue for determination, it is the Appellant’s contention that the learned trial magistrate misapprehended the terms of the Policy Schedule by treating the Deceased, who was admittedly a passenger in motor vehicle registration No. KDH 492D at the material time as falling within Part B thereof rather than Part A.
10. It is submitted that the distinction in the Policy Schedule is express and unambiguous in the sense that Part A relating to persons being carried in or upon, entering, getting onto or alighting from the vehicle while Part B relates to “other persons”.
11. The Appellant therefore contends that the Deceased being a passenger in the insured vehicle fell within Part A under which the limit of liability for death or bodily injury to any one person was Kshs. 0.00.
12. The Respondents on the other hand rely on the finding of the trial court that the policy covered the Deceased and contend that the requirements for liability under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap. 405, as set out in UAP Insurance Company Limited vs Patrick Charo Chiro [2021] eKLR , had been satisfied.
13. I have carefully examined the Policy Schedule produced at the trial court as DExb.1 and the heading “ Limits of Liability ”, makes an express distinction between two categories of persons.
Part A provides for:
“In respect of persons being carried in or upon or entering or getting onto or alighting from the vehicle”
and specifies a limit of Kshs. 0.00 for death or bodily injury to any one person and Kshs. 0.00 in respect of a series of claims arising out of one event.
Part B provides for:
“In respect of other persons”
with a limit of Kshs. 3,000,000.00 for death or bodily injury to any one person and an unlimited amount in respect of a series of claims arising out of one event .
14. I am therefore of the considered view that the ordinary meaning of the words employed in Part A leaves little room for doubt in the sense that a person being carried in or upon a motor vehicle is precisely the category into which a passenger falls and the use of the words “other persons” in Part B must therefore be understood in the context of the distinction expressly drawn by the Schedule between persons being carried in or upon the vehicle and other persons.
15. From the evidence on record the status of the Deceased at the material time is not in dispute to wit that the deceased was a passenger travelling in Motor Vehicle Registration No. KDH 492D. This means that the deceased could not on the undisputed facts placed before court be simultaneously be a person being carried in the vehicle under Part A and an “other person” under Part B.
16. Further, it is evident that the suit motor vehicle was insured as a private motor vehicle and was not insured for the carriage of passengers and the Respondents did not adduce sufficient evidence to establish that at the material time the vehicle was being used to carry passengers for hire or reward or by reason of or in pursuance of a contract of employment although the Respondent’s witness on trial referred to the Deceased to having boarded the vehicle as an Uber.
17. I note that this interpretation is further consistent with Section 5(b)(ii) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap. 405 , which provides that a policy of insurance is not required to cover liability in respect of the death of or bodily injury to persons being carried in or upon, entering or getting onto or alighting from the vehicle, except in the case of a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment.
18. I am fortified by the decision in CIC General Insurance Group Limited vs Gerald Ochoki [2018] KEHC 6044 (KLR ) , where the High Court considered the application of Section 5(b)(ii) of the Insurance (Motor Vehicle Third Party Risks) Act in circumstances where the insured motor vehicle was a private vehicle and the claimant was a passenger. The Court noted that it was undisputed that “the motor vehicle subject matter of this suit was insured for private use” and, in considering the statutory position, reproduced the relevant exclusion under Section 5(b)(ii).
19. The Court further observed that the evidence that the vehicle was being used for hire or reward was largely hearsay and ultimately held that the insurer’s liability was subject to the statutory limit.
20. Further the Court of Appeal in BlueShield Insurance Co. Ltd v Raymond Buuri M'rimberia [1998] KECA 280 (KLR ) the Court considered the relationship between Sections 5(b) and 10(1) of the Act . The Court reproduced Section 10(1) and emphasized the qualifying words “being a liability covered by the terms of the policy” and went on and stated as follows:
“Thus once statutory liability under s.5(b) is covered by the terms of the policy, which in the instant case was, and is not denied by the appellant, the insurer is obliged under s.10(1) of the Act to satisfy the judgment obtained against the insured and pay to the person entitled to the benefit of that judgment all sums payable thereunder with costs and interest...”
21. This Court is of the considered view that the significance of that decision to the present appeal lies in the words “being a liability covered by the terms of the policy” therefore Section 10(1) does not create or enlarge a risk which the policy does not cover hence factual position in the present appeal is therefore materially different.
22. I therefore find that the terms of the Policy Schedule were consistent with the statutory framework. The policy expressly assigned a nil limit to liability for death or bodily injury to persons being carried in or upon the vehicle.
23. Accordingly, I find that the learned trial magistrate erred in law and fact in holding that the Deceased was covered under Part B of the Appellant's policy and the appeal succeeds on this issue,
24. On the second issue the policy expressly stipulated a limit of Kshs. 3,000,000.00 in respect of death or bodily injury to any one person under Part B. This position is consistent with Section 5(b)(iv) of the Insurance (Motor Vehicle Third Party Risks) Act, which limits the liability required to be covered in respect of any one person to Kshs. 3,000,000.00.
25. In CIC General Insurance Group Limited vs Gerald Ochoki (Supra ) the High Court, after considering the statutory limit, expressly held:
“ This court makes a finding that the appellant is liable to the extent of Kshs. 3 million plus costs and interest in the lower court and in this appeal. The appeal succeeds to that extent only .”
26. Similarly, in Kiruku v Kenya Orient Insurance Company Limited [2024] KECA 8 (KLR ) , the Court of Appeal upheld the setting aside of an award of Kshs. 8,955,310.00 and its substitution with “ an award in the sum of Kshs. 3,000,000.00 being the statutory and contractual sum payable by the respondent ”, with the Court noting that the claimant remained at liberty to pursue the balance from the insured. That is the avenue open to the Respondents herein, to pursue the Defendants in the primary suit to meet the judgment herein.
27. It would indeed be a re-writing of the insurance contract to impose a liability wherein the policy clearly provided for no liability for the class of persons stated under Part A of the Policy Schedule.
28. It follows therefore that the learned trial magistrate fell into error in declaring the Appellant liable to satisfy the entire decretal sum of Kshs. 9,101,817.00 as Section 10(1) of the Act does not impose an unlimited obligation upon an insurer.
29. Be as it may, since I have already found that Part A of the policy applies and expressly provides a nil limit in respect of the category into which the Deceased fell. The second issue therefore succeeds as well and I so hold.
Final orders
30. This court proceeds to make the following orders:
a) The Appeal is allowed.
b) The judgement of the subordinate court dated on 5 th day of September, 2025 is hereby set aside and the suit against the Appellant is hereby dismissed.
c) The Appellant will have the costs of the Appeal .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 17 th day of September 2026
HCCA NO. E081 OF 2025 INTRA AFRICA ASSUR. CO. LTD VS REGINA MWIKALI & ANO. JUDGMENT Pg. 1
JUDGMENT.
Introduction
1. By way of a Plaint dated the 3 rd of October, 2025 the Respondents, then Plaintiffs commenced proceedings against the Appellant then the Defendants, seeking to enforce judgment and decree obtained in Kilungu PMCC No. 248 of 2022, Regina Mwikali Makusa & Stephen Mutunga Kingoo (Suing as the Administrators of the Estate of the late Alexander Musyoki Kingoo) vs Intra Africa Assurance Co. Ltd. ( hereinafter referred to as “the primary suit” ) pursuant to the provisions of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405 of the Laws of Kenya .
2. The Appellant’s case was pleaded in its defence dated the 20 th November, 2023 in which it admits that the deceased was a passenger in motor vehicle registration number KDH 492H ( herein referred to as the “suit motor vehicle” ) and having received a statutory notice they averred that such a notice should not be given on behalf of passenger in the relevant motor vehicle when there is no passenger cover by an insurer as the Insurance (Motor Vehicle Third Party Risks Act) Cap 405 does not entitle a passenger in the insured vehicle to sue the insurer. The Appellant further averred that as regards to the accident, they deny the allegation on how the accident occurred hence they are stranger on the allegations of how the accident occurred.
3. The suit was heard on 18/02/2025 for the Plaintiff’s case and on the 03/06/2025 for the Defence case. By a judgement dated the 5/9/2025, the trial court issued a declaration that the Appellant was duly bound to honour and/or satisfy the judgement in the primary suit in the sum of Kshs. 9,101,817.00 plus costs and interests thereof.
4. Being aggrieved by the court’s decision, the Appellant preferred this appeal. The Memorandum of Appeal sets out 3 grounds of appeal as follows:
1. The Honourable Court erred in failing to consider and apply limits of liability – Part A of the Policy Schedule which excluded cover for passengers as follows;
A. In respect of persons being carried in or upon or entering or getting onto or alighting from the vehicle
1) Death of or Bodily injury to any one person….0.00
2. The Honourable Court erred in finding that the insurance policy covered liability for the death of the deceased who was a passenger in the Motor Vehicle registration number KDH492D at the time of his death.
3. Without admitting liability, without prejudice to the foregoing and in the alternative, the Honourable Court erred in finding that the Appellant is liable to settle the entire sum of Kshs. 9,101,817.00 despite a policy of Kshs. 3,000,000.00
5. The Appellant prays that:
1) That this Appeal be allowed.
2) That the Judgement appealed against dated 5/9/2025 be set aside.
3) That the Respondents’ suit be dismissed.
4) That the Appellant do have costs of this appeal and of the suit before the principal magistrates’ court .
6. The appeal was canvassed through written submissions. The Appellant filed its written submissions dated the 15/5/2026 whereas the Respondent filed their written submission dated the 22/5/2026.
7. This being the first appellate court, it is my duty under Section 78 of the Civil Procedure Act to subject the whole evidence to a fresh and exhaustive scrutiny and make my own conclusions about it bearing in mind that I did not have the opportunity of seeing and hearing the witness first hand. ( See Seascapes Ltd vs Development Finance Company of Kenya Ltd [2009] KLR, 384 )
8. I have carefully considered the record of appeal, the rival submissions by parties’ counsel, the authorities cited by each counsel and the applicable law. The grounds of appeal can be collapsed into two major issues for determination by this court namely:
a) Whether the learned trial magistrate erred in law and fact in finding that the Deceased was covered under Part B of the Appellant's policy.
b) Whether the learned trial magistrate erred in holding the Appellant liable to satisfy the entire decretal sum of Kshs. 9,101,817.00
9. On the first issue for determination, it is the Appellant’s contention that the learned trial magistrate misapprehended the terms of the Policy Schedule by treating the Deceased, who was admittedly a passenger in motor vehicle registration No. KDH 492D at the material time as falling within Part B thereof rather than Part A.
10. It is submitted that the distinction in the Policy Schedule is express and unambiguous in the sense that Part A relating to persons being carried in or upon, entering, getting onto or alighting from the vehicle while Part B relates to “other persons”.
11. The Appellant therefore contends that the Deceased being a passenger in the insured vehicle fell within Part A under which the limit of liability for death or bodily injury to any one person was Kshs. 0.00.
12. The Respondents on the other hand rely on the finding of the trial court that the policy covered the Deceased and contend that the requirements for liability under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap. 405, as set out in UAP Insurance Company Limited vs Patrick Charo Chiro [2021] eKLR , had been satisfied.
13. I have carefully examined the Policy Schedule produced at the trial court as DExb.1 and the heading “ Limits of Liability ”, makes an express distinction between two categories of persons.
Part A provides for:
“In respect of persons being carried in or upon or entering or getting onto or alighting from the vehicle”
and specifies a limit of Kshs. 0.00 for death or bodily injury to any one person and Kshs. 0.00 in respect of a series of claims arising out of one event.
Part B provides for:
“In respect of other persons”
with a limit of Kshs. 3,000,000.00 for death or bodily injury to any one person and an unlimited amount in respect of a series of claims arising out of one event .
14. I am therefore of the considered view that the ordinary meaning of the words employed in Part A leaves little room for doubt in the sense that a person being carried in or upon a motor vehicle is precisely the category into which a passenger falls and the use of the words “other persons” in Part B must therefore be understood in the context of the distinction expressly drawn by the Schedule between persons being carried in or upon the vehicle and other persons.
15. From the evidence on record the status of the Deceased at the material time is not in dispute to wit that the deceased was a passenger travelling in Motor Vehicle Registration No. KDH 492D. This means that the deceased could not on the undisputed facts placed before court be simultaneously be a person being carried in the vehicle under Part A and an “other person” under Part B.
16. Further, it is evident that the suit motor vehicle was insured as a private motor vehicle and was not insured for the carriage of passengers and the Respondents did not adduce sufficient evidence to establish that at the material time the vehicle was being used to carry passengers for hire or reward or by reason of or in pursuance of a contract of employment although the Respondent’s witness on trial referred to the Deceased to having boarded the vehicle as an Uber.
17. I note that this interpretation is further consistent with Section 5(b)(ii) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap. 405 , which provides that a policy of insurance is not required to cover liability in respect of the death of or bodily injury to persons being carried in or upon, entering or getting onto or alighting from the vehicle, except in the case of a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment.
18. I am fortified by the decision in CIC General Insurance Group Limited vs Gerald Ochoki [2018] KEHC 6044 (KLR ) , where the High Court considered the application of Section 5(b)(ii) of the Insurance (Motor Vehicle Third Party Risks) Act in circumstances where the insured motor vehicle was a private vehicle and the claimant was a passenger. The Court noted that it was undisputed that “the motor vehicle subject matter of this suit was insured for private use” and, in considering the statutory position, reproduced the relevant exclusion under Section 5(b)(ii).
19. The Court further observed that the evidence that the vehicle was being used for hire or reward was largely hearsay and ultimately held that the insurer’s liability was subject to the statutory limit.
20. Further the Court of Appeal in BlueShield Insurance Co. Ltd v Raymond Buuri M'rimberia [1998] KECA 280 (KLR ) the Court considered the relationship between Sections 5(b) and 10(1) of the Act . The Court reproduced Section 10(1) and emphasized the qualifying words “being a liability covered by the terms of the policy” and went on and stated as follows:
“Thus once statutory liability under s.5(b) is covered by the terms of the policy, which in the instant case was, and is not denied by the appellant, the insurer is obliged under s.10(1) of the Act to satisfy the judgment obtained against the insured and pay to the person entitled to the benefit of that judgment all sums payable thereunder with costs and interest...”
21. This Court is of the considered view that the significance of that decision to the present appeal lies in the words “being a liability covered by the terms of the policy” therefore Section 10(1) does not create or enlarge a risk which the policy does not cover hence factual position in the present appeal is therefore materially different.
22. I therefore find that the terms of the Policy Schedule were consistent with the statutory framework. The policy expressly assigned a nil limit to liability for death or bodily injury to persons being carried in or upon the vehicle.
23. Accordingly, I find that the learned trial magistrate erred in law and fact in holding that the Deceased was covered under Part B of the Appellant's policy and the appeal succeeds on this issue,
24. On the second issue the policy expressly stipulated a limit of Kshs. 3,000,000.00 in respect of death or bodily injury to any one person under Part B. This position is consistent with Section 5(b)(iv) of the Insurance (Motor Vehicle Third Party Risks) Act, which limits the liability required to be covered in respect of any one person to Kshs. 3,000,000.00.
25. In CIC General Insurance Group Limited vs Gerald Ochoki (Supra ) the High Court, after considering the statutory limit, expressly held:
“ This court makes a finding that the appellant is liable to the extent of Kshs. 3 million plus costs and interest in the lower court and in this appeal. The appeal succeeds to that extent only .”
26. Similarly, in Kiruku v Kenya Orient Insurance Company Limited [2024] KECA 8 (KLR ) , the Court of Appeal upheld the setting aside of an award of Kshs. 8,955,310.00 and its substitution with “ an award in the sum of Kshs. 3,000,000.00 being the statutory and contractual sum payable by the respondent ”, with the Court noting that the claimant remained at liberty to pursue the balance from the insured. That is the avenue open to the Respondents herein, to pursue the Defendants in the primary suit to meet the judgment herein.
27. It would indeed be a re-writing of the insurance contract to impose a liability wherein the policy clearly provided for no liability for the class of persons stated under Part A of the Policy Schedule.
28. It follows therefore that the learned trial magistrate fell into error in declaring the Appellant liable to satisfy the entire decretal sum of Kshs. 9,101,817.00 as Section 10(1) of the Act does not impose an unlimited obligation upon an insurer.
29. Be as it may, since I have already found that Part A of the policy applies and expressly provides a nil limit in respect of the category into which the Deceased fell. The second issue therefore succeeds as well and I so hold.
Final orders
30. This court proceeds to make the following orders:
a) The Appeal is allowed.
b) The judgement of the subordinate court dated on 5 th day of September, 2025 is hereby set aside and the suit against the Appellant is hereby dismissed.
c) The Appellant will have the costs of the Appeal .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 17 th day of September 2026
HCCA NO. E081 OF 2025 INTRA AFRICA ASSUR. CO. LTD VS REGINA MWIKALI & ANO. JUDGMENT Pg. 1