(Being an Appeal from the judgment and decree of Hon. Wangari Mbulika (Mrs) delivered on 28 th March 2024 in Milimani Magistrates' Commercial Courts Civil Suit No. 6817 of 2018)
Background
1. This appeal arises from a judgment of the trial court in a declaratory suit instituted by the respondent herein as the victim against the appellant, as the insurer, wherein the trial court made a declaratory order that the appellant was bound to fully satisfy the judgment entered in Milimani CMCC No. 802 of 2013 (the primary suit) in which the respondent obtained judgment against Kishore Constructions Ltd in the sum of KShs 859,125/= together with costs. It was the respondent’s case that the appellant herein was the insurer of motor vehicle registration number KAA 678V owned by Kishore Constructions Ltd against whom the judgment in the primary suit was obtained and as such was duty-bound under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 Laws of Kenya, to satisfy the judgment and decree obtained in the primary suit.
2. The appellant was dissatisfied by that judgment and has filed the present appeal through the memorandum dated 19 th April 2024. The six grounds of appeal can be summarized into two. First, that the trial court erred in law and in fact in finding that the appellant was bound to satisfy the judgment and decree in the primary suit when there was no proof of an insurance policy between the appellant and Kishore Constructions Ltd, the defendant in the primary suit and second, for failing to appreciate that no statutory notice had been served upon the appellant prior to commencement of the primary suit as required under the law.
3. The appellant therefore prays that the appeal be allowed, the judgment of the trial court be set aside and upon a fresh evaluation of the evidence before the trial court, this court makes its own determination and that the costs of the appeal be awarded to the appellant. Further, that this court may make such further orders as it may deem fit and just.
Submissions
4. 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
5. This being a first appeal, the duty of the court is to consider, re-evaluate and re-analyze the evidence tendered before the trial court and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).”
Case before the trial court
6. The respondent’s case was as pleaded in her plaint dated 4 th April 2018 which she filed together with her witness statement dated 4 th April 2018 and copies of documents as per the list dated 4 th April 2018
7. The respondent Salome Adhiambo Alai, testified as PW1. She adopted her witness statement dated 4 th April 2018. Her evidence was that the appellant was the insurer of motor vehicle registration number KAA 678V. She did not however indicate in her statement how she came by that evidence. She stated that on 4 th September 2011 she was a pedestrian walking along Juja road near No. 10 stage in Nairobi when the said vehicle due to the negligence of the driver, lost control, veered off its lane and knocked her down, causing er to sustain severe injuries. She obtained judgment in her favour on 31 st January 2017 in the sum of KShs 859,125/= together with costs and interest. She stated that the appellant had been served with a statutory notice by her advocates and under the doctrine of subrogation, it was under obligation to satisfy the judgment and decree as the insured, Kishore Construction’s insurer.
8. The respondent produced as exhibit the following documents:
a. Notice of intention to institute a declaratory suit dated 13 th March 2017 addressed to the appellant as the insurer.
b. Two statutory notices to Kenya Orient Insurance Co. Ltd, the appellant herein, both dated 5 th October 2012, indicating that the motor vehicle was registration number KAA 678V indicating the insured as Kishore Construction Ltd and another as Stephen Nzuki.
c. Police abstract dated 29 th November 2011.
d. Demand letter dated 5 th October 2012 to Kishore Construction Ltd.
e. Copy of records dated 4 th October 2012 which showed that as at 4 th September 2011, the date of the accident the registered owner of the vehicle was Kishore Construction Ltd and copied to the claims manager of the appellant herein as the insurer under policy No. C 010 B15153053
f. Decree and certificate for costs.
9. In cross-examination the respondent said that the policy number for the insurance was CO10 B15153053 as shown on the police abstract.
10. The appellant’s case was pleaded through its statement of defence dated 29 th August 2018.. In the statement of defence, the appellant denied the respondent’s suit in toto. It particularly denied that it had issued insurance cover under policy No. C 010 B15153053 for motor vehicle registration number KAA 678V allegedly owned by Kishore Construction Ltd to cover third party risks as contemplated under the Insurance (Motor Vehicle Third Party Risks) Act (Cap 405) Laws of Kenya. It categorically denied the existence of the said policy.
11. The appellant pleaded in the alternative that if there was in existence any such policy, the same had been repudiated for breach of material terms and that it had been obtained through non-disclosure of material terms or by representation of facts which were false in some material respects.
12. The appellant further denied knowledge of the occurrence of the accident involving the respondent and the said vehicle and that the respondent had filed suit and obtained judgment against Kishore Construction Ltd.
13. The appellant therefore pleaded that for the foregoing reasons it was not obligated to satisfy any judgment and decretal sum arising from the said suit.
14. The appellant called one witness DW 1, Jane Mbau a legal officer at Kenya Orient Insurance Company. She adopted her witness statement dated 15 th December 2021.
15. DW 1 denied that the defendant in the primary suit Kishore Construction Ltd was their insured and produced a policy schedule of their insured’s client to show that the said defendant was not part of them but that the accident motor vehicle registration number KAA 678V was insured by the appellant under policy No. HGS/102/009018/2009 under the name of Kangundo Road Petrol Station.
16. In cross-examination, DW 1 maintained that their insured was not Kishore Construction Ltd but one Kangundo Road Petrol station. She also said that the agreement of Kangundo Road Petrol station had been signed by both parties. However, she had not produced a copy thereof to court. She did not also produce the policy document to show that Kangundo Road Petrol station was their insured. She said that the period of insurance for the vehicle, according to their schedule, which was not signed by the author, was 25 th November 2011 to 24 th November 2012 and it did not cover the date of the accident which was 4 th September 2011 as it fell outside the date of the cover period as per the schedule she produced as exhibit. She said that there was no document produced by the appellant to show who the insured of the vehicle was at the time of the accident and there was no contrary information to show that the defendant in the primary suit was not the insured.
17. The learned trial Magistrate considered the provisions of section 10 of the Insurance (Motor Vehicle Third Party Risks) Act as expounded in the cases of Peter Gichihi Njuguna v Jubilee Insurance Co. Ltd [2016] KEHC 5545 (KLR) , Richard Makau Ngumbi & another v Cannon Assurance Company Limited [2016] KEHC 4565 (KLR) and Philip Kimani Gikonyo v Gateway Insurance Company Limited [2007] KEHC 1612 (KLR) and concluded that she was satisfied that the requisite statutory notice had been duly issued to the appellant, notice of the judgment in the primary suit had been duly notified to the appellant and that the appellant was the insurer of the accident motor vehicle under policy No. C010 B151553053 and so it was liable to settle the decretal sum in the primary suit.
Analysis and Determination
18. I have considered the trial court record, the grounds of appeal as set out in the memorandum, the submissions for and against this appeal and cited cases.
19. I have looked at the issues for determination set out by each party and I find that they are common. Having considered the pleadings, the evidence, and the submissions, I find that the issues for determination are:
i. Whether the respondent proved that the appellant was the insurer of motor vehicle KAA 678V owned by the defendant in the primary suit.
ii. Whether statutory notice was duly served to the appellant.
iii. Whether the appellant is bound to satisfy the judgment in the primary suit.
20. Learned counsel for the appellant submits that the respondent had failed to prove that the defendant in the primary suit was insured by a policy of insurance issued by the appellant. That the defendant in the primary suit was a stranger to the appellant as the respondent had failed to produce the policy of insurance or certificate of insurance issued to the appellant to the judgment debtor to prove that it was the appellant’s insured. Learned counsel relies on the case of Juma Ali Mbwana & another v Umi Omar Musa [2014] KEHC 5837 (KLR) for an exposition of the provisions of section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act. Learned counsel maintains that an insurer is under the said section only mandated to settle a judgment entered against the insured of the motor vehicle.
21. Learned counsel for the respondent submits that the answers to all the issues for determination above are in the affirmative.
22. The appellant has strongly argued that there is no evidence that the insurance policy was in the name of Kishore Construction Ltd who was the defendant in the primary suit. The respondent on the other hand asserts that the motor vehicle was registered in the name of Kishore Construction Ltd as at the date of the accident and as per the records from the Kenya Revenue Authority who were the custodians of the registration of such records at the time under the office of the Registrar of Motor Vehicles. Secondly, that the police abstract showed that the appellant was the insurer of the accident vehicle. Thirdly, that she sent out all requisite notices to the appellant in relation to the vehicle and the appellant at no time informed the respondent that it was not the insurer of the accident vehicle.
23. Starting with the second issue of whether or not the respondent served the appellant with the statutory notice, the same was proved by production of copies of the said notices bearing the stamps of the appellant acknowledging receipt of the notices. I am persuaded to agree with the holsding in the case of Philip Kimani Gikonyo v Gateway Insurance Company Limited [2007] KEHC 1612 (KLR) that:
“So, what form should a notice take? It simply does not matter. A notice is a notice. The main purpose of a notice is to alert the insurer of a potential claim... so that the insurer can take steps to protect its interest... Any notice, howsoever given as long as it sufficiently outlines the happening of an event giving rise to a claim under the insurance policy, is good notice under the Act.”
24. I am satisfied that the learned trial magistrate reached a correct finding on that issue, that the requisite notice was duly served upon the appellant, and the same is upheld.
25. On the issue of whether the appellant was the insurer, it is true that the respondent did not provide a copy of the insurance policy or certificate of insurance to show that the defendant in the primary suit, Kishore Construction Ltd had taken out a policy of insurance with the appellant for the subject motor vehicle. However, the respondent produced evidence in the form of a copy of records showing that at the time of the accident, the motor vehicle was owned by the defendant in the primary suit.
26. The evidence before the trial court from the respondent’s witness was that the appellant was the insurer of the defendant in the primary suit’s motor vehicle. It was supported by the police abstract and two notices sent to the appellant 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 Kenya Orient Insurance Ltd. Both of them bore the insurance policy number.
27. The evidential burden of proof was cast on the respondent under sections 109 and 112 of the Evidence Act to prove otherwise. The sections provide 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.”
28. In this case the respondent offered material in the form of her witness statement, police abstract and notices to the appellant to support her assertion that the appellant was the insurer of the subject motor vehicle. The appellant 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. There is no indication from the appellant denying that assertion prior to the declaratory suit being filed against it. That is why the respondent filed the declaratory suit. Had the appellant made a response declining the same, the respondent would have been put on notice to look out for further evidence to prove her claim.
29. I am persuaded to agree with the decision in APA Insurance Company Limited v George Masele [2014] KEHC 1548 (KLR) where the High Court held that:
“As to the Certificate of Insurance which Ms Akonga insists should have been produced, I am of the contrary view. The Certificate of Insurance is usually issued to the insured and not the road accident victim. It is a document in the special knowledge and possession of both the insured and the insurer. The road traffic accident victim cannot access it. The details in the Police Abstract as to the details of insurance are in the ordinary cause of events obtained by the police from the Certificate of Insurance affixed to the motor vehicle or are supplied by the insured. In this regard, I am unable to agree with Ms. Akonga that the Respondent should have produced the Certificate of Insurance for Policy No. 010/810/000005/2001/04 in order to prove who the insurer was.”
30. Secondly, due to the nature of an insurance contract where the respondent 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, coupled with the fact that the insurance sticker on the motor vehicle windscreen will not bear the name of the policyholder, the fact of whether or not the appellant was the insurer of the subject vehicle was especially within the knowledge of the appellant and in that case, under section 112 of the Evidence Act, it was expected to disprove the respondent’s assertion that it was in fact the insurer.
31. I find that the defence by the appellant was incapable of rebutting the evidence of the respondent asserting that the appellant was the insurer for several reasons. First, the denial by the appellant that it was the insurer of the accident vehicle is bare and without any documentary support. The appellant sought to rely on a Motor Commercial Policy schedule for the said motor vehicle registration number KAA 678 V Isuzu lorry in the name of a Mr. Kangundo Road Petrol station, businessman. The inadequacy of this document to rebut the evidence by the respondent is twofold. First, its authenticity was put to question during cross-examination of DW 1 when it turned out that it was not signed by the author. Secondly, it shows that the period of the insurance was 26 th November 2011 to 25 th November 2012 meaning it fell outside the date the accident occurred on 4 th September 2011. DW 1 conceded that she had no other evidence to show counter the entry in the police abstract that the appellant was the insurer of the said vehicle and that the defendant in the primary suit was the owner thereof as at the date of the accident.
32. Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 provides:
“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... is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel... the insurer shall... pay to the persons entitled to the benefit of the judgment any sum payable thereunder...”
33. Section 10(4) of the Act provides as that:
“10(4) No sum shall be payable by an insurer under the foregoing provisions of this Section if in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy he is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or, if he has avoided the policy on that ground, that he was entitled so to do apart from any provision contained in it:
''Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgment obtained in proceedings commenced before the commencement of that action, unless before or within fourteen days after the commencement of that action he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the non-disclosure or false representation on which he proposes to rely, and any person to whom notice of such action is so given shall be entitled, if he thinks fit, to be made a party thereto.”
34. From the provisions of this section, it follows that, that defence of being entitled to avoid satisfying the claim in the declaratory suit would only be available to the appellant if it was raised in good time by way of an objection to the claim. There is no indication that any objection was raised by the appellant herein after it received the statutory notice. In considering the import of this provision of the law, the High Court in the case of Real Insurance Co. Limited v Wanyeki [2023] KEHC 1339 (KLR) observed that “this may be one of the purposes contemplated under section 10 of the Act, precisely, to inform the victim (by way of objection) immediately, or at the very latest, within three months, that it would be objecting to the claim.” I agree with that holding so that where the objection is not raised in time, then the defence is not available to the insurer. In APA Insurance Limited v Theodora Atieno Okal [2012] KEHC 5145 (KLR) the High Court on appeal in a matter similar to the present one held thus regarding the defence of avoidance to satisfy the decree:
“I further see no reasonable ground to interfere with the magistrate’s other finding, that the Appellant, having been served with a Notice under Section 10(4) of Cap 405, but having failed to file a relevant objection as prescribed therein, was thereafter, statutorily barred from raising the same objection whether under the Act or thereafter, in court in this suit. Indeed, it is my further view and finding, that where the Insurance Company has failed to file an objection within three months after being served with notice to satisfy such a decree it cannot have the benefit of the invisaged declaration to avoid the liability. It cannot later also have a viable defence even if it obtained the declaration to avoid, under Section 10(4) of the said Act unless it had served the plaintiff with a Notice of disclaimer with reasons for the disclaimer within 14 days of service of the summons to enter appearance to a declaratory suit filed by the insured to recover on a decree already obtained in an original suit as aforestated.
… Not only had the Appellant, APA Insurance Ltd, failed to file the Notice of Objection to avoid satisfying the decree notified on it by the Respondent, but it had also failed to obtain the declaration to avoid to pay under Section 10(4) of Cap 405…”
35. I am persuaded that the reasoning in the above case is the correct evaluation of the law on the defence available to an insurance company that wishes to avoid satisfying a declaratory judgment obtained against it. In the present case, there was no indication by DW 1 that the appellant sought a declaration under Section 10(4) of the Insurance (Motor Vehicle Third Party Risks) Act to avoid the policy, nor did it move to set aside the judgment after notice of the same was served upon it, within the statutory period it was require to do so in order to avoid settlement of the decretal sum.
36. The evidence before the trial court having established that the appellant was the insurer of motor vehicle registration number KAA 678V, and Kishore Construction Ltd was the owner of that vehicle and therefore the insured, the appellant’s argument that the defendant in the primary suit was a stranger to it had no basis. The defendant in the primary suit having been found liable for the accident the appellant as the insurer was bound to satisfy the judgment.
37. Consequently, I am satisfied that that the respondent established that the vehicle was insured by the appellant at the time of the accident and that there was a valid insurance cover and so the appellant was liable to satisfy the decretal sum in the primary suit.
Determination
38. In the circumstances, I find that the learned trial magistrate was correct in finding that the respondent had proved her case on a balance of probability.
39. Consequently, I find that the appeal has no merit and the same is dismissed and the judgment of the trial court is affirmed with costs to the respondent.
40. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Microsoft Teams this 8 th day of June 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for the Appellant.
... for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W. F.
JUDGE
MILIMANI hC CA No. E520/202415/declaratory judgment against insurer
Background
1. This appeal arises from a judgment of the trial court in a declaratory suit instituted by the respondent herein as the victim against the appellant, as the insurer, wherein the trial court made a declaratory order that the appellant was bound to fully satisfy the judgment entered in Milimani CMCC No. 802 of 2013 (the primary suit) in which the respondent obtained judgment against Kishore Constructions Ltd in the sum of KShs 859,125/= together with costs. It was the respondent’s case that the appellant herein was the insurer of motor vehicle registration number KAA 678V owned by Kishore Constructions Ltd against whom the judgment in the primary suit was obtained and as such was duty-bound under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 Laws of Kenya, to satisfy the judgment and decree obtained in the primary suit.
2. The appellant was dissatisfied by that judgment and has filed the present appeal through the memorandum dated 19 th April 2024. The six grounds of appeal can be summarized into two. First, that the trial court erred in law and in fact in finding that the appellant was bound to satisfy the judgment and decree in the primary suit when there was no proof of an insurance policy between the appellant and Kishore Constructions Ltd, the defendant in the primary suit and second, for failing to appreciate that no statutory notice had been served upon the appellant prior to commencement of the primary suit as required under the law.
3. The appellant therefore prays that the appeal be allowed, the judgment of the trial court be set aside and upon a fresh evaluation of the evidence before the trial court, this court makes its own determination and that the costs of the appeal be awarded to the appellant. Further, that this court may make such further orders as it may deem fit and just.
Submissions
4. 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
5. This being a first appeal, the duty of the court is to consider, re-evaluate and re-analyze the evidence tendered before the trial court and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).”
Case before the trial court
6. The respondent’s case was as pleaded in her plaint dated 4 th April 2018 which she filed together with her witness statement dated 4 th April 2018 and copies of documents as per the list dated 4 th April 2018
7. The respondent Salome Adhiambo Alai, testified as PW1. She adopted her witness statement dated 4 th April 2018. Her evidence was that the appellant was the insurer of motor vehicle registration number KAA 678V. She did not however indicate in her statement how she came by that evidence. She stated that on 4 th September 2011 she was a pedestrian walking along Juja road near No. 10 stage in Nairobi when the said vehicle due to the negligence of the driver, lost control, veered off its lane and knocked her down, causing er to sustain severe injuries. She obtained judgment in her favour on 31 st January 2017 in the sum of KShs 859,125/= together with costs and interest. She stated that the appellant had been served with a statutory notice by her advocates and under the doctrine of subrogation, it was under obligation to satisfy the judgment and decree as the insured, Kishore Construction’s insurer.
8. The respondent produced as exhibit the following documents:
a. Notice of intention to institute a declaratory suit dated 13 th March 2017 addressed to the appellant as the insurer.
b. Two statutory notices to Kenya Orient Insurance Co. Ltd, the appellant herein, both dated 5 th October 2012, indicating that the motor vehicle was registration number KAA 678V indicating the insured as Kishore Construction Ltd and another as Stephen Nzuki.
c. Police abstract dated 29 th November 2011.
d. Demand letter dated 5 th October 2012 to Kishore Construction Ltd.
e. Copy of records dated 4 th October 2012 which showed that as at 4 th September 2011, the date of the accident the registered owner of the vehicle was Kishore Construction Ltd and copied to the claims manager of the appellant herein as the insurer under policy No. C 010 B15153053
f. Decree and certificate for costs.
9. In cross-examination the respondent said that the policy number for the insurance was CO10 B15153053 as shown on the police abstract.
10. The appellant’s case was pleaded through its statement of defence dated 29 th August 2018.. In the statement of defence, the appellant denied the respondent’s suit in toto. It particularly denied that it had issued insurance cover under policy No. C 010 B15153053 for motor vehicle registration number KAA 678V allegedly owned by Kishore Construction Ltd to cover third party risks as contemplated under the Insurance (Motor Vehicle Third Party Risks) Act (Cap 405) Laws of Kenya. It categorically denied the existence of the said policy.
11. The appellant pleaded in the alternative that if there was in existence any such policy, the same had been repudiated for breach of material terms and that it had been obtained through non-disclosure of material terms or by representation of facts which were false in some material respects.
12. The appellant further denied knowledge of the occurrence of the accident involving the respondent and the said vehicle and that the respondent had filed suit and obtained judgment against Kishore Construction Ltd.
13. The appellant therefore pleaded that for the foregoing reasons it was not obligated to satisfy any judgment and decretal sum arising from the said suit.
14. The appellant called one witness DW 1, Jane Mbau a legal officer at Kenya Orient Insurance Company. She adopted her witness statement dated 15 th December 2021.
15. DW 1 denied that the defendant in the primary suit Kishore Construction Ltd was their insured and produced a policy schedule of their insured’s client to show that the said defendant was not part of them but that the accident motor vehicle registration number KAA 678V was insured by the appellant under policy No. HGS/102/009018/2009 under the name of Kangundo Road Petrol Station.
16. In cross-examination, DW 1 maintained that their insured was not Kishore Construction Ltd but one Kangundo Road Petrol station. She also said that the agreement of Kangundo Road Petrol station had been signed by both parties. However, she had not produced a copy thereof to court. She did not also produce the policy document to show that Kangundo Road Petrol station was their insured. She said that the period of insurance for the vehicle, according to their schedule, which was not signed by the author, was 25 th November 2011 to 24 th November 2012 and it did not cover the date of the accident which was 4 th September 2011 as it fell outside the date of the cover period as per the schedule she produced as exhibit. She said that there was no document produced by the appellant to show who the insured of the vehicle was at the time of the accident and there was no contrary information to show that the defendant in the primary suit was not the insured.
17. The learned trial Magistrate considered the provisions of section 10 of the Insurance (Motor Vehicle Third Party Risks) Act as expounded in the cases of Peter Gichihi Njuguna v Jubilee Insurance Co. Ltd [2016] KEHC 5545 (KLR) , Richard Makau Ngumbi & another v Cannon Assurance Company Limited [2016] KEHC 4565 (KLR) and Philip Kimani Gikonyo v Gateway Insurance Company Limited [2007] KEHC 1612 (KLR) and concluded that she was satisfied that the requisite statutory notice had been duly issued to the appellant, notice of the judgment in the primary suit had been duly notified to the appellant and that the appellant was the insurer of the accident motor vehicle under policy No. C010 B151553053 and so it was liable to settle the decretal sum in the primary suit.
Analysis and Determination
18. I have considered the trial court record, the grounds of appeal as set out in the memorandum, the submissions for and against this appeal and cited cases.
19. I have looked at the issues for determination set out by each party and I find that they are common. Having considered the pleadings, the evidence, and the submissions, I find that the issues for determination are:
i. Whether the respondent proved that the appellant was the insurer of motor vehicle KAA 678V owned by the defendant in the primary suit.
ii. Whether statutory notice was duly served to the appellant.
iii. Whether the appellant is bound to satisfy the judgment in the primary suit.
20. Learned counsel for the appellant submits that the respondent had failed to prove that the defendant in the primary suit was insured by a policy of insurance issued by the appellant. That the defendant in the primary suit was a stranger to the appellant as the respondent had failed to produce the policy of insurance or certificate of insurance issued to the appellant to the judgment debtor to prove that it was the appellant’s insured. Learned counsel relies on the case of Juma Ali Mbwana & another v Umi Omar Musa [2014] KEHC 5837 (KLR) for an exposition of the provisions of section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act. Learned counsel maintains that an insurer is under the said section only mandated to settle a judgment entered against the insured of the motor vehicle.
21. Learned counsel for the respondent submits that the answers to all the issues for determination above are in the affirmative.
22. The appellant has strongly argued that there is no evidence that the insurance policy was in the name of Kishore Construction Ltd who was the defendant in the primary suit. The respondent on the other hand asserts that the motor vehicle was registered in the name of Kishore Construction Ltd as at the date of the accident and as per the records from the Kenya Revenue Authority who were the custodians of the registration of such records at the time under the office of the Registrar of Motor Vehicles. Secondly, that the police abstract showed that the appellant was the insurer of the accident vehicle. Thirdly, that she sent out all requisite notices to the appellant in relation to the vehicle and the appellant at no time informed the respondent that it was not the insurer of the accident vehicle.
23. Starting with the second issue of whether or not the respondent served the appellant with the statutory notice, the same was proved by production of copies of the said notices bearing the stamps of the appellant acknowledging receipt of the notices. I am persuaded to agree with the holsding in the case of Philip Kimani Gikonyo v Gateway Insurance Company Limited [2007] KEHC 1612 (KLR) that:
“So, what form should a notice take? It simply does not matter. A notice is a notice. The main purpose of a notice is to alert the insurer of a potential claim... so that the insurer can take steps to protect its interest... Any notice, howsoever given as long as it sufficiently outlines the happening of an event giving rise to a claim under the insurance policy, is good notice under the Act.”
24. I am satisfied that the learned trial magistrate reached a correct finding on that issue, that the requisite notice was duly served upon the appellant, and the same is upheld.
25. On the issue of whether the appellant was the insurer, it is true that the respondent did not provide a copy of the insurance policy or certificate of insurance to show that the defendant in the primary suit, Kishore Construction Ltd had taken out a policy of insurance with the appellant for the subject motor vehicle. However, the respondent produced evidence in the form of a copy of records showing that at the time of the accident, the motor vehicle was owned by the defendant in the primary suit.
26. The evidence before the trial court from the respondent’s witness was that the appellant was the insurer of the defendant in the primary suit’s motor vehicle. It was supported by the police abstract and two notices sent to the appellant 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 Kenya Orient Insurance Ltd. Both of them bore the insurance policy number.
27. The evidential burden of proof was cast on the respondent under sections 109 and 112 of the Evidence Act to prove otherwise. The sections provide 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.”
28. In this case the respondent offered material in the form of her witness statement, police abstract and notices to the appellant to support her assertion that the appellant was the insurer of the subject motor vehicle. The appellant 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. There is no indication from the appellant denying that assertion prior to the declaratory suit being filed against it. That is why the respondent filed the declaratory suit. Had the appellant made a response declining the same, the respondent would have been put on notice to look out for further evidence to prove her claim.
29. I am persuaded to agree with the decision in APA Insurance Company Limited v George Masele [2014] KEHC 1548 (KLR) where the High Court held that:
“As to the Certificate of Insurance which Ms Akonga insists should have been produced, I am of the contrary view. The Certificate of Insurance is usually issued to the insured and not the road accident victim. It is a document in the special knowledge and possession of both the insured and the insurer. The road traffic accident victim cannot access it. The details in the Police Abstract as to the details of insurance are in the ordinary cause of events obtained by the police from the Certificate of Insurance affixed to the motor vehicle or are supplied by the insured. In this regard, I am unable to agree with Ms. Akonga that the Respondent should have produced the Certificate of Insurance for Policy No. 010/810/000005/2001/04 in order to prove who the insurer was.”
30. Secondly, due to the nature of an insurance contract where the respondent 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, coupled with the fact that the insurance sticker on the motor vehicle windscreen will not bear the name of the policyholder, the fact of whether or not the appellant was the insurer of the subject vehicle was especially within the knowledge of the appellant and in that case, under section 112 of the Evidence Act, it was expected to disprove the respondent’s assertion that it was in fact the insurer.
31. I find that the defence by the appellant was incapable of rebutting the evidence of the respondent asserting that the appellant was the insurer for several reasons. First, the denial by the appellant that it was the insurer of the accident vehicle is bare and without any documentary support. The appellant sought to rely on a Motor Commercial Policy schedule for the said motor vehicle registration number KAA 678 V Isuzu lorry in the name of a Mr. Kangundo Road Petrol station, businessman. The inadequacy of this document to rebut the evidence by the respondent is twofold. First, its authenticity was put to question during cross-examination of DW 1 when it turned out that it was not signed by the author. Secondly, it shows that the period of the insurance was 26 th November 2011 to 25 th November 2012 meaning it fell outside the date the accident occurred on 4 th September 2011. DW 1 conceded that she had no other evidence to show counter the entry in the police abstract that the appellant was the insurer of the said vehicle and that the defendant in the primary suit was the owner thereof as at the date of the accident.
32. Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 provides:
“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... is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel... the insurer shall... pay to the persons entitled to the benefit of the judgment any sum payable thereunder...”
33. Section 10(4) of the Act provides as that:
“10(4) No sum shall be payable by an insurer under the foregoing provisions of this Section if in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy he is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or, if he has avoided the policy on that ground, that he was entitled so to do apart from any provision contained in it:
''Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgment obtained in proceedings commenced before the commencement of that action, unless before or within fourteen days after the commencement of that action he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the non-disclosure or false representation on which he proposes to rely, and any person to whom notice of such action is so given shall be entitled, if he thinks fit, to be made a party thereto.”
34. From the provisions of this section, it follows that, that defence of being entitled to avoid satisfying the claim in the declaratory suit would only be available to the appellant if it was raised in good time by way of an objection to the claim. There is no indication that any objection was raised by the appellant herein after it received the statutory notice. In considering the import of this provision of the law, the High Court in the case of Real Insurance Co. Limited v Wanyeki [2023] KEHC 1339 (KLR) observed that “this may be one of the purposes contemplated under section 10 of the Act, precisely, to inform the victim (by way of objection) immediately, or at the very latest, within three months, that it would be objecting to the claim.” I agree with that holding so that where the objection is not raised in time, then the defence is not available to the insurer. In APA Insurance Limited v Theodora Atieno Okal [2012] KEHC 5145 (KLR) the High Court on appeal in a matter similar to the present one held thus regarding the defence of avoidance to satisfy the decree:
“I further see no reasonable ground to interfere with the magistrate’s other finding, that the Appellant, having been served with a Notice under Section 10(4) of Cap 405, but having failed to file a relevant objection as prescribed therein, was thereafter, statutorily barred from raising the same objection whether under the Act or thereafter, in court in this suit. Indeed, it is my further view and finding, that where the Insurance Company has failed to file an objection within three months after being served with notice to satisfy such a decree it cannot have the benefit of the invisaged declaration to avoid the liability. It cannot later also have a viable defence even if it obtained the declaration to avoid, under Section 10(4) of the said Act unless it had served the plaintiff with a Notice of disclaimer with reasons for the disclaimer within 14 days of service of the summons to enter appearance to a declaratory suit filed by the insured to recover on a decree already obtained in an original suit as aforestated.
… Not only had the Appellant, APA Insurance Ltd, failed to file the Notice of Objection to avoid satisfying the decree notified on it by the Respondent, but it had also failed to obtain the declaration to avoid to pay under Section 10(4) of Cap 405…”
35. I am persuaded that the reasoning in the above case is the correct evaluation of the law on the defence available to an insurance company that wishes to avoid satisfying a declaratory judgment obtained against it. In the present case, there was no indication by DW 1 that the appellant sought a declaration under Section 10(4) of the Insurance (Motor Vehicle Third Party Risks) Act to avoid the policy, nor did it move to set aside the judgment after notice of the same was served upon it, within the statutory period it was require to do so in order to avoid settlement of the decretal sum.
36. The evidence before the trial court having established that the appellant was the insurer of motor vehicle registration number KAA 678V, and Kishore Construction Ltd was the owner of that vehicle and therefore the insured, the appellant’s argument that the defendant in the primary suit was a stranger to it had no basis. The defendant in the primary suit having been found liable for the accident the appellant as the insurer was bound to satisfy the judgment.
37. Consequently, I am satisfied that that the respondent established that the vehicle was insured by the appellant at the time of the accident and that there was a valid insurance cover and so the appellant was liable to satisfy the decretal sum in the primary suit.
Determination
38. In the circumstances, I find that the learned trial magistrate was correct in finding that the respondent had proved her case on a balance of probability.
39. Consequently, I find that the appeal has no merit and the same is dismissed and the judgment of the trial court is affirmed with costs to the respondent.
40. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Microsoft Teams this 8 th day of June 2026.
ANDAYI W. F.
JUDGE
In the presence of:
... for the Appellant.
... for the Respondent.
Ummu h/b for Amina: Court Assistant.
ANDAYI W. F.
JUDGE
MILIMANI hC CA No. E520/202415/declaratory judgment against insurer