1. The matter before the Court is a first Appeal arising out of a Trial Court's judgment entered on a declaratory suit. The Appeal challenges the Judgment and Decree delivered by Honourable Ritah Amwayi in Kaloleni Principal Magistrate in Civil Case Number E051 of 2024, delivered on 25th July, 2025.
Background Facts
2. The Respondent, acting as the Plaintiff, instituted a declaratory suit against the Appellant who was the unsuccessful Defendant before the Trial Court. The Respondent sought a declaration that the Appellant was bound to satisfy a judgment previously entered against its alleged insured in Kaloleni CMCC No. 24 of 2017. The Respondent prayed for the payment of the decretal amount of Kshs 570,048/=, alongside costs and interest at Court rates.
3. The Appellant filed a Statement of Defence denying the existence of any insurance cover for the subject motor vehicle, registration number KCB 695X. The Appellant pleaded non est factum (“it is not my deed”), averred that any insurance sticker in circulation was a forgery. It also vehemently denied the receipt of any statutory notice prior to the institution of the primary suit.
4. The Trial Court framed four issues for determination and ultimately found in favour of the Respondent on all counts. Consequently, the Trial Court entered judgment declaring the Appellant liable to satisfy the sum of Kshs 570,048/= and awarded costs and interest to the Respondent.
5. Aggrieved by the decision of the Trial Court, the Appellant filed a Memorandum of Appeal dated 25th July, 2025. The grounds raised and the reliefs sought in the Memorandum of Appeal are as follows:
1. That the Learned Magistrate erred in law and in fact in entering judgement against the defendant/ appellant yet the plaintiff/respondent never led any key evidence against the defendant herein.
2. That the learned magistrate erred in law and in fact by overlooking the legal evidential burden of proof that is bestowed upon the plaintiff.
3. That the learned magistrate erred in law and in fact by considering extraneous factors in holding that the plaintiff/respondent proved his case.
4. That the learned magistrate erred in law and in fact in failing to hold that there was no evidence for the defendant to rebut.
5. That the learned magistrate erred in law and in fact in holding that the plaintiff/respondent proved his case on a balance of probability.
6. That the Appellant pleaded for the following reliefs in this Appeal:
a) The learned trial magistrate judgement delivered on 25th July 2025 in Kaloleni PMCC NO. E051 of 2024. Mutisya Sophia alias Mutisya Sofia Vs Kenya Orient Insurance Company Limited be set aside and be replaced with an order dismissing the suit with costs.
b) Costs of this appeal.
7. The Court has carefully considered the submissions filed by the parties. The Appellant submitted that the Respondent failed to discharge the evidential burden of proof. The Appellant contended that the Trial Court misapprehended the evidence by relying on a Police Abstract that was never actually produced in evidence.
8. The Appellant acknowledged and relied upon several authorities to support its case. These included Mwanasokoni v Kenya Bus Services Ltd & 3 Others [1985] KECA 82 (KLR), UAP Insurance Co. Ltd v Patrick Charo Chiro [2021] KEHC 6557 (KLR), Jiji v Gateway Insurance Co. Ltd [2022] KECA 368 (KLR) and David Kahuruka Gitau & George Kuria v Nancy Ann Wathithi Gitau & Mercy Wangui Ng'ang'a [2016] KEHC 6964 (KLR).
9. The Respondent submitted that the statutory requirements for a declaratory suit were fully satisfied. The Respondent asserted that a Police Abstract proving the policy was produced and that a Statutory Notice was served on 20th December, 2016. It was further argued that the Appellant failed to avoid liability under Section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act.
10. The Respondent acknowledged and relied upon a separate set of authorities. These included UAP Insurance Co. Ltd v Patrick Charo Chiro [2021] KEHC 6557 (KLR), Xplico Insurance Company Limited v Maosa [2024] KEHC 9398 (KLR), Juliet Waringa Wanyondu (Deceased) v Lion of Kenya Insurance Company [2017] KEHC 2764 (KLR), Hellen Wangari Wangechi v Carumera Muthini Gathua, Miller v Minister of Pensions (1947) 2 All ER 372, and Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.
Issue for Determination
11. The Court has perused the Memorandum of Appeal, the Record of Appeal and the rival submissions. The Appeal turns on the single issue framed as follows:
(a) Whether the Trial Court erred in entering judgment in the declaratory suit.
Analysis
12. The matter before the Court is a first Appeal. It is imperative to articulate the duty of an Appellate Court on a first appeal. The duty is to reconsider the evidence adduced at the trial, evaluate it comprehensively, and draw independent conclusions.
13. The Court is guided by the Court of Appeal's holding in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, which stated as follows:
"An appeal to this court from a trial by the High Court is by way of a 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 it has neither seen nor heard the witnesses and should make due allowance in this respect".
(a) Whether the Trial Court erred in entering judgment in the declaratory suit.
14. The substantive law governing this dispute is Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, Chapter 405 of the Laws of Kenya. The statute imposes a duty on an insurer to satisfy judgments against persons insured, subject to strict statutory preconditions.
15. The jurisprudence of the Court establishes a four-fold test for liability to attach to an insurer. This test was aptly captured in Xplico Insurance Company Limited v Maosa [2024] KEHC 9398 (KLR), as follows:
“i. Firstly, the motor vehicle in question was insured by the
appellant.
ii. Secondly, the Respondent has a judgment in his/her favour against the insured;
iii. Thirdly, that statutory notice was issued to the insurer either at least 14 days before the filing of the suit wherein judgment has been obtained or within 30 days of filing the suit where judgment has been obtained; and
iv Finally, the Respondent was a person covered by the insurance policy."
16. The legal and evidential burden of proving these four elements’ rests squarely upon the Plaintiff. Sections 107 and 108 of the Evidence Act dictate that whoever desires a Court to give judgment as to any legal right must prove that the underlying facts exist.
17. In Abson Motors Limited v Dominic B. Onyango Konditi [2018] KECA 161 (KLR), the Court of Appeal restated this principle as follows:
"The respondent was the one asserting his claim and under section 107 of the Evidence Act the burden of proof was upon him to prove his claim notwithstanding the failure of the appellant to call any evidence".
18. Applying these principles, the Court must determine if the Respondent proved the first limb of the test. The claimant must prove that the motor vehicle was insured by the Appellant. The Trial Court held that the Respondent testified and produced a Police Abstract indicating that the Appellant had insured the suit motor vehicle vide Policy Number MSA/080/00/042/2015(COMP).
19. A meticulous examination of the Record of Appeal reveals a glaring contradiction. The Plaintiff's List of Documents dated 27th March, 2024 lists only five documents namely:
A Statutory Notice,
A Demand Notice,
A Decree,
A Letter on assessment of costs, and
The Plaintiff's statement.
20. Neither a Police Abstract nor a Certificate of Insurance was produced or admitted into evidence during the trial. The Respondent's witness statement equally failed to identify the policy number or attach any document establishing a nexus between the Appellant and the motor vehicle.
21. The Trial Court committed a grave error of fact. The Learned Magistrate heavily relied on a non-existent Police Abstract to anchor liability. This constitutes a fundamental misapprehension of the evidence on record.
22. The Respondent failed to discharge the initial burden of proof regarding the existence of the insurance policy. As the Court of Appeal noted in Jiji v Gateway Insurance Co. Ltd [2022] KECA 368 (KLR):
"the burden of proving that the certificate was properly and validly issued by the respondent rested upon the appellant and further, the evidential burden never shifted to the respondent and remained with him all thorough".
23. The third critical limb of the test concerns the service of the Statutory Notice. Section 10(2)(a) of Cap 405 mandates that the insurer must receive notice of the bringing of the proceedings before or within fourteen days after the commencement of the primary suit.
24. The Respondent averred that a Statutory Notice was served on 20th December, 2016. The Appellant vehemently denied receipt of this notice in its pleadings and evidence.
25. Where the delivery of a document is disputed, the burden lies on the asserting party to prove service. The Record of Appeal demonstrates that the Respondent merely produced a document headed "Statutory Notice". The Respondent failed to call the process server as a witness or produce a valid affidavit of service regarding the Statutory Notice.
26. During cross-examination, the Respondent expressly admitted to never having visited the Appellant's offices. The documentary and oral evidence of actual service upon the Appellant was entirely non-existent. A mere photocopy of a notice, devoid of proof of service or posting, is insufficient to fasten statutory liability upon an insurer.
27. The Respondent argued that the Appellant failed to file a declaratory suit under Section 10(4) of Cap 405 to avoid liability, and thus remained bound to satisfy the judgment.
28. It is the holding of this Court that the duty of an insurer to file a suit to avoid a policy under Section 10(4) of Cap 405 is only triggered if a valid policy is proven to exist. An insurer cannot be expected to seek statutory avoidance of a non-existent policy. The Respondent's failure to cross the initial evidentiary hurdle renders Section 10(4) entirely inapplicable.
29. In Jiji v Gateway Insurance Co. Ltd [2022] KECA 368 (KLR), Tuiyott JA. reminded the parties of the provisions of Section 12(1) of the Act. If the requirements of the section are utilised correctly and promptly; they would ease the burden of a claimant in a running down claim. Section 12(1) of the Act reads: -
“Any person against whom a claim is made in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 shall, on demand by or on behalf of the person making claim, state whether or not he was insured in respect of that liability by any policy having effect for the purposes of this Act or would have been so insured if the insurer had not avoided or cancelled the policy and, if was or would have been so insured, give such particulars with respect to that policy as were specified in the certificate of insurance issued in respect thereof under section 7.”
30. The Trial Court erred in law and in fact in entering judgment against the Appellant. The judgment was against the weight of the evidence and rested on extraneous factors and documents not on record. The Respondent failed to prove the case on a balance of probabilities.
31. As to costs the same lie at the discretion of this Court and ordinarily follow the event. The Court is persuaded that the Appellant as the successful party is entitled to costs of this Appeal and in the Court below.
Determination
32. The Appeal is merited and succeeds in its entirety. The Court HEREBY allows the same in the following terms:
a) The Learned Trial Magistrate’s judgement and Decree delivered on 25th July 2025 in Kaloleni PMCC NO. E051 of 2024. Mutisya Sophia alias Mutisya Sofia Vs Kenya Orient Insurance Company Limited is HEREBY quashed and set aside. It is instead replaced and substituted with an order and Decree dismissing the Plaintiff’s suit.
b) The Appellant is HEREBY awarded the costs of this Appeal and the costs of the suit in the Trial Court below.
33. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Ken Kioko for the Appellant.
Miss Muturi holding brief for Miss Anne Kyusa for the Respondent.
Mr. Mohamed - Court Assistant.
Background Facts
2. The Respondent, acting as the Plaintiff, instituted a declaratory suit against the Appellant who was the unsuccessful Defendant before the Trial Court. The Respondent sought a declaration that the Appellant was bound to satisfy a judgment previously entered against its alleged insured in Kaloleni CMCC No. 24 of 2017. The Respondent prayed for the payment of the decretal amount of Kshs 570,048/=, alongside costs and interest at Court rates.
3. The Appellant filed a Statement of Defence denying the existence of any insurance cover for the subject motor vehicle, registration number KCB 695X. The Appellant pleaded non est factum (“it is not my deed”), averred that any insurance sticker in circulation was a forgery. It also vehemently denied the receipt of any statutory notice prior to the institution of the primary suit.
4. The Trial Court framed four issues for determination and ultimately found in favour of the Respondent on all counts. Consequently, the Trial Court entered judgment declaring the Appellant liable to satisfy the sum of Kshs 570,048/= and awarded costs and interest to the Respondent.
5. Aggrieved by the decision of the Trial Court, the Appellant filed a Memorandum of Appeal dated 25th July, 2025. The grounds raised and the reliefs sought in the Memorandum of Appeal are as follows:
1. That the Learned Magistrate erred in law and in fact in entering judgement against the defendant/ appellant yet the plaintiff/respondent never led any key evidence against the defendant herein.
2. That the learned magistrate erred in law and in fact by overlooking the legal evidential burden of proof that is bestowed upon the plaintiff.
3. That the learned magistrate erred in law and in fact by considering extraneous factors in holding that the plaintiff/respondent proved his case.
4. That the learned magistrate erred in law and in fact in failing to hold that there was no evidence for the defendant to rebut.
5. That the learned magistrate erred in law and in fact in holding that the plaintiff/respondent proved his case on a balance of probability.
6. That the Appellant pleaded for the following reliefs in this Appeal:
a) The learned trial magistrate judgement delivered on 25th July 2025 in Kaloleni PMCC NO. E051 of 2024. Mutisya Sophia alias Mutisya Sofia Vs Kenya Orient Insurance Company Limited be set aside and be replaced with an order dismissing the suit with costs.
b) Costs of this appeal.
7. The Court has carefully considered the submissions filed by the parties. The Appellant submitted that the Respondent failed to discharge the evidential burden of proof. The Appellant contended that the Trial Court misapprehended the evidence by relying on a Police Abstract that was never actually produced in evidence.
8. The Appellant acknowledged and relied upon several authorities to support its case. These included Mwanasokoni v Kenya Bus Services Ltd & 3 Others [1985] KECA 82 (KLR), UAP Insurance Co. Ltd v Patrick Charo Chiro [2021] KEHC 6557 (KLR), Jiji v Gateway Insurance Co. Ltd [2022] KECA 368 (KLR) and David Kahuruka Gitau & George Kuria v Nancy Ann Wathithi Gitau & Mercy Wangui Ng'ang'a [2016] KEHC 6964 (KLR).
9. The Respondent submitted that the statutory requirements for a declaratory suit were fully satisfied. The Respondent asserted that a Police Abstract proving the policy was produced and that a Statutory Notice was served on 20th December, 2016. It was further argued that the Appellant failed to avoid liability under Section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act.
10. The Respondent acknowledged and relied upon a separate set of authorities. These included UAP Insurance Co. Ltd v Patrick Charo Chiro [2021] KEHC 6557 (KLR), Xplico Insurance Company Limited v Maosa [2024] KEHC 9398 (KLR), Juliet Waringa Wanyondu (Deceased) v Lion of Kenya Insurance Company [2017] KEHC 2764 (KLR), Hellen Wangari Wangechi v Carumera Muthini Gathua, Miller v Minister of Pensions (1947) 2 All ER 372, and Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123.
Issue for Determination
11. The Court has perused the Memorandum of Appeal, the Record of Appeal and the rival submissions. The Appeal turns on the single issue framed as follows:
(a) Whether the Trial Court erred in entering judgment in the declaratory suit.
Analysis
12. The matter before the Court is a first Appeal. It is imperative to articulate the duty of an Appellate Court on a first appeal. The duty is to reconsider the evidence adduced at the trial, evaluate it comprehensively, and draw independent conclusions.
13. The Court is guided by the Court of Appeal's holding in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, which stated as follows:
"An appeal to this court from a trial by the High Court is by way of a 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 it has neither seen nor heard the witnesses and should make due allowance in this respect".
(a) Whether the Trial Court erred in entering judgment in the declaratory suit.
14. The substantive law governing this dispute is Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, Chapter 405 of the Laws of Kenya. The statute imposes a duty on an insurer to satisfy judgments against persons insured, subject to strict statutory preconditions.
15. The jurisprudence of the Court establishes a four-fold test for liability to attach to an insurer. This test was aptly captured in Xplico Insurance Company Limited v Maosa [2024] KEHC 9398 (KLR), as follows:
“i. Firstly, the motor vehicle in question was insured by the
appellant.
ii. Secondly, the Respondent has a judgment in his/her favour against the insured;
iii. Thirdly, that statutory notice was issued to the insurer either at least 14 days before the filing of the suit wherein judgment has been obtained or within 30 days of filing the suit where judgment has been obtained; and
iv Finally, the Respondent was a person covered by the insurance policy."
16. The legal and evidential burden of proving these four elements’ rests squarely upon the Plaintiff. Sections 107 and 108 of the Evidence Act dictate that whoever desires a Court to give judgment as to any legal right must prove that the underlying facts exist.
17. In Abson Motors Limited v Dominic B. Onyango Konditi [2018] KECA 161 (KLR), the Court of Appeal restated this principle as follows:
"The respondent was the one asserting his claim and under section 107 of the Evidence Act the burden of proof was upon him to prove his claim notwithstanding the failure of the appellant to call any evidence".
18. Applying these principles, the Court must determine if the Respondent proved the first limb of the test. The claimant must prove that the motor vehicle was insured by the Appellant. The Trial Court held that the Respondent testified and produced a Police Abstract indicating that the Appellant had insured the suit motor vehicle vide Policy Number MSA/080/00/042/2015(COMP).
19. A meticulous examination of the Record of Appeal reveals a glaring contradiction. The Plaintiff's List of Documents dated 27th March, 2024 lists only five documents namely:
A Statutory Notice,
A Demand Notice,
A Decree,
A Letter on assessment of costs, and
The Plaintiff's statement.
20. Neither a Police Abstract nor a Certificate of Insurance was produced or admitted into evidence during the trial. The Respondent's witness statement equally failed to identify the policy number or attach any document establishing a nexus between the Appellant and the motor vehicle.
21. The Trial Court committed a grave error of fact. The Learned Magistrate heavily relied on a non-existent Police Abstract to anchor liability. This constitutes a fundamental misapprehension of the evidence on record.
22. The Respondent failed to discharge the initial burden of proof regarding the existence of the insurance policy. As the Court of Appeal noted in Jiji v Gateway Insurance Co. Ltd [2022] KECA 368 (KLR):
"the burden of proving that the certificate was properly and validly issued by the respondent rested upon the appellant and further, the evidential burden never shifted to the respondent and remained with him all thorough".
23. The third critical limb of the test concerns the service of the Statutory Notice. Section 10(2)(a) of Cap 405 mandates that the insurer must receive notice of the bringing of the proceedings before or within fourteen days after the commencement of the primary suit.
24. The Respondent averred that a Statutory Notice was served on 20th December, 2016. The Appellant vehemently denied receipt of this notice in its pleadings and evidence.
25. Where the delivery of a document is disputed, the burden lies on the asserting party to prove service. The Record of Appeal demonstrates that the Respondent merely produced a document headed "Statutory Notice". The Respondent failed to call the process server as a witness or produce a valid affidavit of service regarding the Statutory Notice.
26. During cross-examination, the Respondent expressly admitted to never having visited the Appellant's offices. The documentary and oral evidence of actual service upon the Appellant was entirely non-existent. A mere photocopy of a notice, devoid of proof of service or posting, is insufficient to fasten statutory liability upon an insurer.
27. The Respondent argued that the Appellant failed to file a declaratory suit under Section 10(4) of Cap 405 to avoid liability, and thus remained bound to satisfy the judgment.
28. It is the holding of this Court that the duty of an insurer to file a suit to avoid a policy under Section 10(4) of Cap 405 is only triggered if a valid policy is proven to exist. An insurer cannot be expected to seek statutory avoidance of a non-existent policy. The Respondent's failure to cross the initial evidentiary hurdle renders Section 10(4) entirely inapplicable.
29. In Jiji v Gateway Insurance Co. Ltd [2022] KECA 368 (KLR), Tuiyott JA. reminded the parties of the provisions of Section 12(1) of the Act. If the requirements of the section are utilised correctly and promptly; they would ease the burden of a claimant in a running down claim. Section 12(1) of the Act reads: -
“Any person against whom a claim is made in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 shall, on demand by or on behalf of the person making claim, state whether or not he was insured in respect of that liability by any policy having effect for the purposes of this Act or would have been so insured if the insurer had not avoided or cancelled the policy and, if was or would have been so insured, give such particulars with respect to that policy as were specified in the certificate of insurance issued in respect thereof under section 7.”
30. The Trial Court erred in law and in fact in entering judgment against the Appellant. The judgment was against the weight of the evidence and rested on extraneous factors and documents not on record. The Respondent failed to prove the case on a balance of probabilities.
31. As to costs the same lie at the discretion of this Court and ordinarily follow the event. The Court is persuaded that the Appellant as the successful party is entitled to costs of this Appeal and in the Court below.
Determination
32. The Appeal is merited and succeeds in its entirety. The Court HEREBY allows the same in the following terms:
a) The Learned Trial Magistrate’s judgement and Decree delivered on 25th July 2025 in Kaloleni PMCC NO. E051 of 2024. Mutisya Sophia alias Mutisya Sofia Vs Kenya Orient Insurance Company Limited is HEREBY quashed and set aside. It is instead replaced and substituted with an order and Decree dismissing the Plaintiff’s suit.
b) The Appellant is HEREBY awarded the costs of this Appeal and the costs of the suit in the Trial Court below.
33. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Ken Kioko for the Appellant.
Miss Muturi holding brief for Miss Anne Kyusa for the Respondent.
Mr. Mohamed - Court Assistant.