1. Being dissatisfied with the Judgment that was delivered on 7th March 2024, the appellant lodged a memorandum of appeal dated at Nairobi this 27th day of March 2024 wherein it challenges the whole Judgment on the following GROUNDS:
1) THAT the learned trial magistrate erred and misdirected herself in fact and in law in failing to appreciate that the Appellant’s defence was to the effect that there was no valid judgment that could have been enforced against it as an insurer pursuant to the provisions of section
2) 10 (1) of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405 of the Laws of Kenya thereby coming to a wrong decision.
3) THAT the learned trial magistrate erred in fact and in law in reaching the finding that the Appellant was required to repudiate the policy of insurance and seek a declaration to avoid the policy pursuant to the provisions of section 10 (4) of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405 of the Laws of Kenya thereby reaching an erroneous conclusion.
4) THAT the learned trial magistrate erred in fact and in law in reaching the finding that the issue of the demise of the insured’s driver prior to the institution of the primary suit was an issue that ought to have been canvassed in the primary suit and not the declaratory suit thereby reaching an erroneous decision.
5) THAT the learned trial magistrate erred in fact and in law in reaching the finding that the declaratory suit was not the right forum to challenge the validity of the judgment and decree of the primary suit thereby arriving at an erroneous decision.
6) THAT the learned trial magistrate erred in fact and in law in reaching the finding that the Appellant having been served with the statutory notice was enjoined to either appeal against or apply to set aside the judgment in the primary suit and not challenge the validity of the said judgment in the declaratory suit thereby arriving at a wrong decision.
2. The appellant seeks the following orders;
1) THAT this Appeal be allowed.
2) THAT the Judgment of the subordinate court delivered on 7th March 2024 be set aside.
3) THAT the Respondent’s suit before the subordinate court as against the Appellant be dismissed with costs to the Appellant.
4) THAT the costs of this Appeal be awarded to the Appellant.
3. The appellants case;
4. It is its case that The Respondent commenced proceedings against the Appellant seeking to enforce judgment and decree obtained in Milimani CMCC No. 7059 of 2014.
5. The Appellant’s case was set out in its Statement of Defence dated 16/10/2018 in which it averred that it was not liable to satisfy the judgment issued in the primary suit on the basis that the judgment is not against a person insured under the policy it issued in respect of motor vehicle KUS 996.
6. Vide a judgment dated 07/03/2024, the court found the Respondent to have proved her case and ordered the Defendant to satisfy the judgement in the Primary Suit.
7. It submits that the judgment is for all intents and purposes invalid as it was obtained against a deceased person.
8. Section 10(1) of Cap 405 provides that “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 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.”
9. It submits that the primary suit was instituted against two individuals, Thuku Joseph and Peter Kinyanjui.
10. As the time of the accident, motor vehicle registration number KUS 996 was insured in the name of one Mr. John Kibe Kariuki and driven by Peter Kinyanjui.
11. According to the Appellant, it would only be liable to satisfy any valid judgment obtained against John Kibe Kariuki as the person insured and Peter Kinyanjui as his authorized driver.
12. The Appellant argues that it is however , not under any obligation to satisfy the judgment against Thuku Joseph who was sued in the primary suit as the owner and ostensibly, presumed insured.
13. It submits that the certificate of insurance is very clear that the insured in this case was John Kibe Kariuki, not Thuku Joseph.
14. It cannot be under any obligation to satisfy the judgment against Thuku Joseph.
15. It submits that its liability on account of the judgment against Peter Kinyanjui, is tainted with illegality as the said person was deceased as at the time of institution of the primary suit.
16. It refers to the evidence of DW2, Elias N. Kaguru, who was the Assistant Chief Njahi Sub Location, Miiri Location who produced a duly certified copy of a burial permit serial number 670555 dated 13/9/2021 that confirmed that Peter Kinyanjui died on 30/5/2021.
17. It submits that the primary suit which was filed as against a deceased person is void ab initio and consequently, any judgement and decree arising therefrom was a nullity.
18. Reliance is placed in Geeta Bharat Shah & Others – v- Jomar Said Mwatayari & Another (2009) eKLR. The court observed that,
a. “We have anxiously considered the appeal… We have no doubt whatsoever that the learned judge, in refusing to allow the application as in favour of the deceased against whom a suit was filed after his demise, was plainly wrong. Indeed, in our view …the court was duly bound to down its tools as it had no jurisdiction to proceed to hear a suit filed against a person who was already dead by the time the suit was filed… It goes without saying that dead people cannot read advertisements and thus could not be said to have been served. As regards the first defendant, the interlocutory judgment could not be a regular judgment… In the result, as Bharatkumar Nathalal Shah was already dead by the time the suit was filed, we hold the view that the suit was a nullity and Mr. Oddiaga, is with respect right in conceding the appeal in respect of him on that score. We see no merit in directing that he be allowed to file defence as he is not there to do so and the administrators to his estate cannot in law take over the matter as it was filed after he was already dead.”
19. In Mugo v Mwaniki (Deceased) & 6 others; Ibara (Intended Defendant) [2022] it was held as follows:
a. “From the authorities above, it is clear that such a suit cannot be sustained if the deceased was the only defendant in the suit… the suit filed against such deceased is still a nullity but only as against the deceased person. It matters not that the one filing the suit made an honest mistake, was unaware of the death or the suit has bonafides. It is clear that a suit against a deceased is a nullity as the deceased person cannot defend a suit or participate in any legal proceedings.”
20. It also relies in Manyange (Deceased) v TG (Minor suing through her mother and next friend WMG) [2024] while handling a similar appeal stated as follows:
a. “I note that it was also the common position of the parties and therefore there was no dispute that by the time the Respondent instituted the suit as against the Deceased, the Deceased was a deceased person. Therefore, the suit was fatally instated against a non-existent person and remained so. Ipso facto, the suit was nullity ab initio. It could not be resuscitated by amendment. It could not survive to be substituted.”
21. The Supreme Court in Wandi v Muchira (Petition (Application) E029 of 2024) [2025] reaffirmed the positions taken by the Courts in the above cited cases and it stated as follows:
a. “We distinguish the present matter from the authorities cited by the respondent namely GeetaBharat Shah & 4 Others v Omar Said Mwatayari& Another [2009] KECA 126 (KLR), High Court decision in Manyange (Deceased) v TG (minor suing through her mother and next friend WMG) (Civil Appeal E005 of 2022) [2024] KEHC 1083 (KLR) and ELC decision in Japhet Nzila Muangi v Hamisi Juma Malee (2022) KEELC 434 (KLR). The decisions therein concern suits instituted against deceased persons. In those cases, the core issue was that the suits had been instituted against deceased persons. By the time the suits were filed, the respective respondents were already deceased. Consequently, the suits were deemed to have been initiated against non-existent persons, rendering them fundamentally defective and void. Such a suit cannot be cured by amendment, nor can it survive for purposes of substitution.”
22. The Appellant prays that this Court finds that there was no valid judgment for the Appellant to satisfy.
23. In advancing the 2nd ground of appeal,The appellant submits that the trial Magistrate in the declaratory suit relied Section 10(4) of Cap 405 as well as the case of Cannon Assurance Limited v Peter Mulei Sammy (2020), to find and hold that the Appellant ought to have taken steps to repudiate the policy.
24. Section 10(4) provides that an application for repudiation should only be made if the policy was obtained by the non-disclosure of a material fact or by false representation, which was not the case herein.
25. The same is reproduced hereunder for the court’s ease of reference.
a. “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 judgement was given he has obtained a declaration that apart from any provisions 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;
b. 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 sub-section as respects any judgement obtained in proceedings commenced before the commencement of that Section, unless before or within fourteen (14) days after the commencement of that action he has given notice thereof to the person who is the Plaintiff in the said proceedings specifying that 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.”
26. It submits that given that the Appellant has never contended that the policy was irregular or fraudulently obtained, it could not make an application under this section to repudiate a regular policy.
27. With respect and in so far as the case of Cannon Assurance (supra) goes, the circumstances in that case were totally different from the current case and it is therefore not a good authority for this matter.
28. In that case, it was held that where an insurer claims that the person sued in the primary suit was not its insured, such an objection ought to have been raised within the primary proceedings, or through a separate declaration seeking to avoid the policy. Besides, the insured in that case was a business entity owned by the Deceased defendant which is why the Court came to such a holding.
29. In the present case it is submitted that however, the contention is not on whether the policy was regular but rather whether a null judgment ought to be satisfied as per the requirements of Cap 405.
30. According to the appellant,there was no need to file an application to repudiate the a legal policy.The proceedings in the primary suit were however a nullity.
31. It relies in the case of Benjamin Mc Foy vs United Africa Company Limited, cited with approval in Viktar Maina Ngunjiri & 4 others vs Attorney General & 6 others (2018) where Lord Denning held as follows with regard to nullities in law:
a. “If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado… Every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
32. It submits that the magistrate erroneously conflated two distinct issues, that is, repudiation of a policy and nullity of proceedings, which led to her flawed decision that the Appellant ought to have sought to repudiate the policy when the issue in contention was the validity of the judgment.
33. When it comes to Ground 3 ,it submits that the Learned magistrate in her judgment stated that the issue of the death of the driver ought to have been raised in the primary suit.
34. The Appellant submits that it was not a party in the primary suit as to be able to raise any issues therein.
35. It submits that the declaratory suit was the only available forum through which the Appellant could raise any issues relating to the proceedings in the primary suit.
36. It submits that the primary suit proceeded undefended and an interlocutory judgment was entered since the insured’s driver was already dead as at the time of the institution of the suit and could not defend it.
37. Reliance is placed in Geeta Bharat Shah & Others – v- JomarSaid Mwatayari & Another (supra), where the court held:
“It goes without saying that dead people cannot read advertisements and thus could not be said to have been served. As regards the first defendant, the interlocutory judgment could not be a regular judgment.”
38. On Ground 4,the Appellant argues that it was not a party to the primary proceedings and had no locus to appeal or file an application to set aside the judgment therein.
39. In the case of Kenya Orient Insurance Limited v Otieno (Civil Appeal E166 of 2023 (2024) KEHC) the court held as follows:
“A declaratory suit is one that seeks to compel a judgement debtor’s insurer to settle the decree passed against the insured.”
40. In the declaratory suit, the Appellant sought the court’s determination as to whether it was bound to satisfy a decree arising from proceedings against a deceased person.
41. This is a critical issue that ought not to be ignored. In the circumstances, the declaratory suit was not only appropriate but necessary to address that issue. Making a decision without according the Appellant a hearing in this forum amounts to a denial of the right to be heard under Article 50 of the Constitution of Kenya, 2010 and is contrary to the adage that no man shall be condemned unheard.
42. The Appellant contends that by reaching a finding that the Appellant would have appealed or set aside the judgment in the primary suit since they were served with a statutory notice, the trial court erred in fact and in law thus arriving at a wrong decision.
43. The service of statutory notice on the insurer does not remove the obligation on the Respondent to serve pleadings on the rightful parties to make them aware of the existence of a suit filed.
44. Statutory notice is served prior to filing a claim hence the Civil Procedure Rules on service of summons must be complied with.
45. The Appellant’s insured was never sued in the primary suit and no such pleadings were served on the Appellant’s rightful insured.
46. The duty of insurers to satisfy judgments against an insured person stems from Section 10(1) and (2) of the Insurance (Motor Vehicle Third Party Risks) Cap 405 which obligates insurance to indemnify/ settle decree in favour of decree holder where the judgment debtor is insured by the policy of an insurance.
47. Reliance is placed in the case of Madison Insurance Company Limited V Augustine Kamanda Gitau (2020) eKLR.
48. The Appellant was not a party in the primary suit as to be able to appeal or set aside the judgment since the suit was not filed against their insured.
49. The 1st Defendant in the primary suit was a stranger to the Appellant as he is not their insured and there was no policy contract between him and the Appellant.
The Respondent's case:
50. The appeal arises as result of the judgment of the honorable trial court delivered on 24th March 2024 in Milimani Commercial Courts civil Case No.809z Of 2018 Rejina Mwende Alias Regina Mwende Waweru -Versus-Madison Insurance Company Limited whereby the trial court held that the appellant was bound to satisfy a judgment which had been delivered in primary suit MILIMANI CMCC NO. 7059 of 2014 under the provision of section 10 of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya.
51. Reliance is placed on Gitobu rmanyara & 2 Others vs Attorney General [20161 eKLR where the Court held that:
"this being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that 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 that it has neither seen nor heard the witnesses and should make due allowance in this respect."
52. The respondent herein filed a declaratory suit on the 18th
September 2018 which was necessitated by a civil suit (CMCC NO. 7059 OF 2014) filed on the 16th November 2014 through a plaint dated the 20th November 2014.
53. Judgement was delivered on the 3rd March 2017 by this court in favour of the respondent for an award of Kshs. 609,570.00 plus costs of the suit and interest at court rates and decree was subsequently extracted to that effect dated 3rd September 2018 for a total of Kshs829,386/-.
54. Before the commencement of the primary suit, the respondent issued a statutory notice to the appellants in accordance to section 10(2) of the insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya as provided by the law which was received on 26th April 2012.
55. It is the Respondent’s case that The appellant did not file disclaimer suit following the service of the statutory notice under the provisions of Section 8 insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya and therefore the insurance company herein the appellant is obligated to pay and compensate the appellant the decretal sum as awarded by court in the primary and as directed by the trial court's judgment subject of this appeal.
56. It submits that the failure by the appellant to file a disclaimer suit as provided by Section 8 of Insurance (Third Party Motor Vehicle Risk Act) Cap 405, was an admission of liability on the part of the appellant hence the appellant now does not have any defence since the stipulated time to file a disclaimer suit lapsed without any action being taken by the appellant.
57. It submits that at the hearing appellant admitted that indeed they had issued a policy to the suit motor vehicle registration KUS 996 vide policy number P/NO.HQS/Z02/46024/2010 and a copy of the certificate of the insurance.
58. She submits that the appellant had insured the suit motor vehicle at the time of the accident on 2nd December 2011 as evidenced by copy of insurance certificate issued by the appellant for period between 19.11.2011 and 18.12.2011 as set out in the police abstract dated 13/3/2012.
59. She submits that at the hearing the appellant did not tender evidence to counter the respondent position that the primary judgment was a regular judgment which the appellants were bound to satisfy as per the provisions of Section 10 of Insurance (Third Party Motor Vehicle Risk Act) Cap 405 having admitted that they had issued cover to the suit motor vehicle and proceeding to produce a certificate of insurance.
60. The Respondent submits that the trial court was right place to raise all issues since the appellant , failed either to apply to set aside the primary suit and call for the cross-examination of the process server who filed the affidavit of service which was relied upon by the court to enter interlocutory judgment against the defendants in the primary suit subject of this declaratory suit.
61. The Respondent submits that failure to challenge the primary suit upon service with the declaratory suit was a clear admission that the process of summons as it was established by a competent judicial officer who entered the judgment was sufficient hence such allegations remain purely as allegations which have not been substantiated.
62. Reliance is placed in the case of LINUS NGANGA KIONGO & 3 OTHERS V TOWN COUNCIL OF KIKUYU[20121eKLR where the court relied of the various case in that regard. ...In the case where Justice Lesiit, in citing the case of Autar Singh Bahraand Another vs. Raiu Govindii, stated:
"Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiffs case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail".
63. In the case of Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milünani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party's pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.
64. In the case of Karuru Munpororo vs.JosephNdumiaMurage & Another Nperi HCCC No. 95 of1988Makhandia, J. held:
"The plaintiff proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the defendants and or their counsel to cross-examine her on the evidence, the plaintiff's evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon.
65. The case of Janet Kaphiphe Ouma & Another vs. Marie Stoves International (Kenya) Kisumu HCCC No. 68 of2007 Ali-Aroni, J. citing the decision in Edward Murica Through Stanley Muriea vs. Nathaniel D. Schulter Civil Appeal No. 23 of1997said:
66. "In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations...Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence"
67. The appellant alleges that primary judgment was delivered against a person who was not insured by the appellant and proceeded to list the name of the purported insured as John Ribe Rariuki however, the said John Kibe Kariuki did not even record statement or testify in court to confirm whether he was the person who had the insurable interest with defendants hence such statement also remains as pure allegation.
68. The Respondent submits that the claim form that is purported to have been filed by John Kibe Kariuki is pure fabrication of the following reasons that the alleged driver in page 23 of the record appeal who is purported to have recorded statement in the claim for never indicated his name nor sign the statement,the alleged insured John Kibe Kariuki on the alleged claim form stated as follows :-I was called by a friend about the accident and not the driver and from the statement of the alleged driver he didn't state whether he sustained injuries and the same claim is also not dated.
69. The appellants witness Charles Kanjuki Gathu who testified as DW1 and stated that he the legal officer to the appellants company and therefore duly authorized to plead on behalf of the appellants proceeded to produce Motor Accident Report Form purported to have been filed by John Ribe Kariukithe alleged insured without calling the maker and therefore contrary to the provisions of Section 35 of the law of evidence Act on the production of documents.
70. Section 35 (1) of The Evidence Act provides that in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—
(a) if the maker of the statement either—
b. had personal knowledge of the matters dealt with by the statement; or
c. where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and ifthe maker of the statement is called as a witness in the proceedings: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.
71. The respondent submits that the only person who was best fitted to proceed and produce the Motor Accident Report Form purported to have been filed by John RibeKariuki should have been John Kibe Rariuki himself who didn't even record a statement raising the doubt whether he was the insured considering the inconsistence highlighted in the Motor Accident Report Form hence in absence of appellants having satisfied the conditions stated under subsection 1(b) of Evidence Act.
72. Reliance is placed in the case of EMMANUEL OTIENO KONGILI & Another v JIMMY JOSEPH O. OWUOR [20111 eKLRWhere the court held that :- '.....He did not demonstrate any efforts he had undertaken to avail such witnesses like issuance of witnesses summons without success. I do not therefore think that in the circumstances of this case the evidence of these witnesses could not have been secured had the respondent exercised reasonable diligence. In applying for the admission of the evidence in the trial court the respondent premised his application on section 33(b) and 35, of the Evidence Act. This section allows into evidence statements or documents by persons who cannot be called as witnesses. However for such sections to be invoked it must be demonstrated that the maker of the statement or document is: dead cannot be found; incapable of giving evidence; or If his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.
73. The appellant did not demonstrate or satisfy any of the above conditions.
74. Much as the appellant purported to rely on the last prerequisite aforesaid there was no evidence other than the appellant's assertion from the bar that it would be expensive to secure the attendance of such.
75. She submits that the said document should be expunged from the court as being inadmissible since it doesn't satisfy the conditions of Section 35 of the Evidence Act.
76. She submits that a close scrutiny of the said Motor Accident Report Form at the declaration section, the same is not dated and thus we submit that, this document was prepared as an afterthought to defeat the wheels of justice.
77. The Respondent submits that the court cannot establish when the document was prepared
78. In so far as the issue whether the primary suit was issued against a party who was sued while he was deceased the Respondent submits that the said allegations are farfetched and purely misleading since the evidence tendered in court on 14th December 2023 chief from Mirii location as Dw-2 in regard to burial permit no, 670555 in respect of the Peter Kinyanjui Kirungu is full of contradiction and therefore inadmissible in evidence.
79. It is submitted that during cross-examination Dw-2 was an incredible witness whose evidence should be disregarded because he admitted that the said burial permit did not emanate from his location of jurisdiction and did not know the person who issued the same
80. Further it is submitted that Dw-2 admitted that he did have counterfoil copy of the said burial permit to authenticate the validity thereof despite confirming that once a burial permit has been issued there is always a copy of the counterfoil which remains.
81. She submits that Dw-2 did not authenticate the said burial permit and therefore appellants allegations that the said Peter Kinyanjui Kirungu was deceased by the time the process server stated that he had served him pleadings in the primary suit are baseless.
82. It's her submission that this explains why the appellant didn't even seek to set aside the judgment in the primary suit.
83. She submits that the appellant did not challenged the respondent’s case and having admitted by way document evidence by production of certificate of insurance to proof that indeed it had insured the suit motor vehicle Registration KUS 996 and proceeded to attach a copy of certificate of insurance then appellants were under obligations to satisfy the judgment issued in Milimani Cmcc No. 7059 Of
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1) THAT the learned trial magistrate erred and misdirected herself in fact and in law in failing to appreciate that the Appellant’s defence was to the effect that there was no valid judgment that could have been enforced against it as an insurer pursuant to the provisions of section
2) 10 (1) of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405 of the Laws of Kenya thereby coming to a wrong decision.
3) THAT the learned trial magistrate erred in fact and in law in reaching the finding that the Appellant was required to repudiate the policy of insurance and seek a declaration to avoid the policy pursuant to the provisions of section 10 (4) of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405 of the Laws of Kenya thereby reaching an erroneous conclusion.
4) THAT the learned trial magistrate erred in fact and in law in reaching the finding that the issue of the demise of the insured’s driver prior to the institution of the primary suit was an issue that ought to have been canvassed in the primary suit and not the declaratory suit thereby reaching an erroneous decision.
5) THAT the learned trial magistrate erred in fact and in law in reaching the finding that the declaratory suit was not the right forum to challenge the validity of the judgment and decree of the primary suit thereby arriving at an erroneous decision.
6) THAT the learned trial magistrate erred in fact and in law in reaching the finding that the Appellant having been served with the statutory notice was enjoined to either appeal against or apply to set aside the judgment in the primary suit and not challenge the validity of the said judgment in the declaratory suit thereby arriving at a wrong decision.
2. The appellant seeks the following orders;
1) THAT this Appeal be allowed.
2) THAT the Judgment of the subordinate court delivered on 7th March 2024 be set aside.
3) THAT the Respondent’s suit before the subordinate court as against the Appellant be dismissed with costs to the Appellant.
4) THAT the costs of this Appeal be awarded to the Appellant.
3. The appellants case;
4. It is its case that The Respondent commenced proceedings against the Appellant seeking to enforce judgment and decree obtained in Milimani CMCC No. 7059 of 2014.
5. The Appellant’s case was set out in its Statement of Defence dated 16/10/2018 in which it averred that it was not liable to satisfy the judgment issued in the primary suit on the basis that the judgment is not against a person insured under the policy it issued in respect of motor vehicle KUS 996.
6. Vide a judgment dated 07/03/2024, the court found the Respondent to have proved her case and ordered the Defendant to satisfy the judgement in the Primary Suit.
7. It submits that the judgment is for all intents and purposes invalid as it was obtained against a deceased person.
8. Section 10(1) of Cap 405 provides that “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 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.”
9. It submits that the primary suit was instituted against two individuals, Thuku Joseph and Peter Kinyanjui.
10. As the time of the accident, motor vehicle registration number KUS 996 was insured in the name of one Mr. John Kibe Kariuki and driven by Peter Kinyanjui.
11. According to the Appellant, it would only be liable to satisfy any valid judgment obtained against John Kibe Kariuki as the person insured and Peter Kinyanjui as his authorized driver.
12. The Appellant argues that it is however , not under any obligation to satisfy the judgment against Thuku Joseph who was sued in the primary suit as the owner and ostensibly, presumed insured.
13. It submits that the certificate of insurance is very clear that the insured in this case was John Kibe Kariuki, not Thuku Joseph.
14. It cannot be under any obligation to satisfy the judgment against Thuku Joseph.
15. It submits that its liability on account of the judgment against Peter Kinyanjui, is tainted with illegality as the said person was deceased as at the time of institution of the primary suit.
16. It refers to the evidence of DW2, Elias N. Kaguru, who was the Assistant Chief Njahi Sub Location, Miiri Location who produced a duly certified copy of a burial permit serial number 670555 dated 13/9/2021 that confirmed that Peter Kinyanjui died on 30/5/2021.
17. It submits that the primary suit which was filed as against a deceased person is void ab initio and consequently, any judgement and decree arising therefrom was a nullity.
18. Reliance is placed in Geeta Bharat Shah & Others – v- Jomar Said Mwatayari & Another (2009) eKLR. The court observed that,
a. “We have anxiously considered the appeal… We have no doubt whatsoever that the learned judge, in refusing to allow the application as in favour of the deceased against whom a suit was filed after his demise, was plainly wrong. Indeed, in our view …the court was duly bound to down its tools as it had no jurisdiction to proceed to hear a suit filed against a person who was already dead by the time the suit was filed… It goes without saying that dead people cannot read advertisements and thus could not be said to have been served. As regards the first defendant, the interlocutory judgment could not be a regular judgment… In the result, as Bharatkumar Nathalal Shah was already dead by the time the suit was filed, we hold the view that the suit was a nullity and Mr. Oddiaga, is with respect right in conceding the appeal in respect of him on that score. We see no merit in directing that he be allowed to file defence as he is not there to do so and the administrators to his estate cannot in law take over the matter as it was filed after he was already dead.”
19. In Mugo v Mwaniki (Deceased) & 6 others; Ibara (Intended Defendant) [2022] it was held as follows:
a. “From the authorities above, it is clear that such a suit cannot be sustained if the deceased was the only defendant in the suit… the suit filed against such deceased is still a nullity but only as against the deceased person. It matters not that the one filing the suit made an honest mistake, was unaware of the death or the suit has bonafides. It is clear that a suit against a deceased is a nullity as the deceased person cannot defend a suit or participate in any legal proceedings.”
20. It also relies in Manyange (Deceased) v TG (Minor suing through her mother and next friend WMG) [2024] while handling a similar appeal stated as follows:
a. “I note that it was also the common position of the parties and therefore there was no dispute that by the time the Respondent instituted the suit as against the Deceased, the Deceased was a deceased person. Therefore, the suit was fatally instated against a non-existent person and remained so. Ipso facto, the suit was nullity ab initio. It could not be resuscitated by amendment. It could not survive to be substituted.”
21. The Supreme Court in Wandi v Muchira (Petition (Application) E029 of 2024) [2025] reaffirmed the positions taken by the Courts in the above cited cases and it stated as follows:
a. “We distinguish the present matter from the authorities cited by the respondent namely GeetaBharat Shah & 4 Others v Omar Said Mwatayari& Another [2009] KECA 126 (KLR), High Court decision in Manyange (Deceased) v TG (minor suing through her mother and next friend WMG) (Civil Appeal E005 of 2022) [2024] KEHC 1083 (KLR) and ELC decision in Japhet Nzila Muangi v Hamisi Juma Malee (2022) KEELC 434 (KLR). The decisions therein concern suits instituted against deceased persons. In those cases, the core issue was that the suits had been instituted against deceased persons. By the time the suits were filed, the respective respondents were already deceased. Consequently, the suits were deemed to have been initiated against non-existent persons, rendering them fundamentally defective and void. Such a suit cannot be cured by amendment, nor can it survive for purposes of substitution.”
22. The Appellant prays that this Court finds that there was no valid judgment for the Appellant to satisfy.
23. In advancing the 2nd ground of appeal,The appellant submits that the trial Magistrate in the declaratory suit relied Section 10(4) of Cap 405 as well as the case of Cannon Assurance Limited v Peter Mulei Sammy (2020), to find and hold that the Appellant ought to have taken steps to repudiate the policy.
24. Section 10(4) provides that an application for repudiation should only be made if the policy was obtained by the non-disclosure of a material fact or by false representation, which was not the case herein.
25. The same is reproduced hereunder for the court’s ease of reference.
a. “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 judgement was given he has obtained a declaration that apart from any provisions 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;
b. 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 sub-section as respects any judgement obtained in proceedings commenced before the commencement of that Section, unless before or within fourteen (14) days after the commencement of that action he has given notice thereof to the person who is the Plaintiff in the said proceedings specifying that 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.”
26. It submits that given that the Appellant has never contended that the policy was irregular or fraudulently obtained, it could not make an application under this section to repudiate a regular policy.
27. With respect and in so far as the case of Cannon Assurance (supra) goes, the circumstances in that case were totally different from the current case and it is therefore not a good authority for this matter.
28. In that case, it was held that where an insurer claims that the person sued in the primary suit was not its insured, such an objection ought to have been raised within the primary proceedings, or through a separate declaration seeking to avoid the policy. Besides, the insured in that case was a business entity owned by the Deceased defendant which is why the Court came to such a holding.
29. In the present case it is submitted that however, the contention is not on whether the policy was regular but rather whether a null judgment ought to be satisfied as per the requirements of Cap 405.
30. According to the appellant,there was no need to file an application to repudiate the a legal policy.The proceedings in the primary suit were however a nullity.
31. It relies in the case of Benjamin Mc Foy vs United Africa Company Limited, cited with approval in Viktar Maina Ngunjiri & 4 others vs Attorney General & 6 others (2018) where Lord Denning held as follows with regard to nullities in law:
a. “If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado… Every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
32. It submits that the magistrate erroneously conflated two distinct issues, that is, repudiation of a policy and nullity of proceedings, which led to her flawed decision that the Appellant ought to have sought to repudiate the policy when the issue in contention was the validity of the judgment.
33. When it comes to Ground 3 ,it submits that the Learned magistrate in her judgment stated that the issue of the death of the driver ought to have been raised in the primary suit.
34. The Appellant submits that it was not a party in the primary suit as to be able to raise any issues therein.
35. It submits that the declaratory suit was the only available forum through which the Appellant could raise any issues relating to the proceedings in the primary suit.
36. It submits that the primary suit proceeded undefended and an interlocutory judgment was entered since the insured’s driver was already dead as at the time of the institution of the suit and could not defend it.
37. Reliance is placed in Geeta Bharat Shah & Others – v- JomarSaid Mwatayari & Another (supra), where the court held:
“It goes without saying that dead people cannot read advertisements and thus could not be said to have been served. As regards the first defendant, the interlocutory judgment could not be a regular judgment.”
38. On Ground 4,the Appellant argues that it was not a party to the primary proceedings and had no locus to appeal or file an application to set aside the judgment therein.
39. In the case of Kenya Orient Insurance Limited v Otieno (Civil Appeal E166 of 2023 (2024) KEHC) the court held as follows:
“A declaratory suit is one that seeks to compel a judgement debtor’s insurer to settle the decree passed against the insured.”
40. In the declaratory suit, the Appellant sought the court’s determination as to whether it was bound to satisfy a decree arising from proceedings against a deceased person.
41. This is a critical issue that ought not to be ignored. In the circumstances, the declaratory suit was not only appropriate but necessary to address that issue. Making a decision without according the Appellant a hearing in this forum amounts to a denial of the right to be heard under Article 50 of the Constitution of Kenya, 2010 and is contrary to the adage that no man shall be condemned unheard.
42. The Appellant contends that by reaching a finding that the Appellant would have appealed or set aside the judgment in the primary suit since they were served with a statutory notice, the trial court erred in fact and in law thus arriving at a wrong decision.
43. The service of statutory notice on the insurer does not remove the obligation on the Respondent to serve pleadings on the rightful parties to make them aware of the existence of a suit filed.
44. Statutory notice is served prior to filing a claim hence the Civil Procedure Rules on service of summons must be complied with.
45. The Appellant’s insured was never sued in the primary suit and no such pleadings were served on the Appellant’s rightful insured.
46. The duty of insurers to satisfy judgments against an insured person stems from Section 10(1) and (2) of the Insurance (Motor Vehicle Third Party Risks) Cap 405 which obligates insurance to indemnify/ settle decree in favour of decree holder where the judgment debtor is insured by the policy of an insurance.
47. Reliance is placed in the case of Madison Insurance Company Limited V Augustine Kamanda Gitau (2020) eKLR.
48. The Appellant was not a party in the primary suit as to be able to appeal or set aside the judgment since the suit was not filed against their insured.
49. The 1st Defendant in the primary suit was a stranger to the Appellant as he is not their insured and there was no policy contract between him and the Appellant.
The Respondent's case:
50. The appeal arises as result of the judgment of the honorable trial court delivered on 24th March 2024 in Milimani Commercial Courts civil Case No.809z Of 2018 Rejina Mwende Alias Regina Mwende Waweru -Versus-Madison Insurance Company Limited whereby the trial court held that the appellant was bound to satisfy a judgment which had been delivered in primary suit MILIMANI CMCC NO. 7059 of 2014 under the provision of section 10 of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya.
51. Reliance is placed on Gitobu rmanyara & 2 Others vs Attorney General [20161 eKLR where the Court held that:
"this being a first appeal, it is trite law that this court is not bound necessarily to accept the findings of fact by the court below and that 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 that it has neither seen nor heard the witnesses and should make due allowance in this respect."
52. The respondent herein filed a declaratory suit on the 18th
September 2018 which was necessitated by a civil suit (CMCC NO. 7059 OF 2014) filed on the 16th November 2014 through a plaint dated the 20th November 2014.
53. Judgement was delivered on the 3rd March 2017 by this court in favour of the respondent for an award of Kshs. 609,570.00 plus costs of the suit and interest at court rates and decree was subsequently extracted to that effect dated 3rd September 2018 for a total of Kshs829,386/-.
54. Before the commencement of the primary suit, the respondent issued a statutory notice to the appellants in accordance to section 10(2) of the insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya as provided by the law which was received on 26th April 2012.
55. It is the Respondent’s case that The appellant did not file disclaimer suit following the service of the statutory notice under the provisions of Section 8 insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya and therefore the insurance company herein the appellant is obligated to pay and compensate the appellant the decretal sum as awarded by court in the primary and as directed by the trial court's judgment subject of this appeal.
56. It submits that the failure by the appellant to file a disclaimer suit as provided by Section 8 of Insurance (Third Party Motor Vehicle Risk Act) Cap 405, was an admission of liability on the part of the appellant hence the appellant now does not have any defence since the stipulated time to file a disclaimer suit lapsed without any action being taken by the appellant.
57. It submits that at the hearing appellant admitted that indeed they had issued a policy to the suit motor vehicle registration KUS 996 vide policy number P/NO.HQS/Z02/46024/2010 and a copy of the certificate of the insurance.
58. She submits that the appellant had insured the suit motor vehicle at the time of the accident on 2nd December 2011 as evidenced by copy of insurance certificate issued by the appellant for period between 19.11.2011 and 18.12.2011 as set out in the police abstract dated 13/3/2012.
59. She submits that at the hearing the appellant did not tender evidence to counter the respondent position that the primary judgment was a regular judgment which the appellants were bound to satisfy as per the provisions of Section 10 of Insurance (Third Party Motor Vehicle Risk Act) Cap 405 having admitted that they had issued cover to the suit motor vehicle and proceeding to produce a certificate of insurance.
60. The Respondent submits that the trial court was right place to raise all issues since the appellant , failed either to apply to set aside the primary suit and call for the cross-examination of the process server who filed the affidavit of service which was relied upon by the court to enter interlocutory judgment against the defendants in the primary suit subject of this declaratory suit.
61. The Respondent submits that failure to challenge the primary suit upon service with the declaratory suit was a clear admission that the process of summons as it was established by a competent judicial officer who entered the judgment was sufficient hence such allegations remain purely as allegations which have not been substantiated.
62. Reliance is placed in the case of LINUS NGANGA KIONGO & 3 OTHERS V TOWN COUNCIL OF KIKUYU[20121eKLR where the court relied of the various case in that regard. ...In the case where Justice Lesiit, in citing the case of Autar Singh Bahraand Another vs. Raiu Govindii, stated:
"Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiffs case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail".
63. In the case of Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milünani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party's pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.
64. In the case of Karuru Munpororo vs.JosephNdumiaMurage & Another Nperi HCCC No. 95 of1988Makhandia, J. held:
"The plaintiff proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the defendants and or their counsel to cross-examine her on the evidence, the plaintiff's evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon.
65. The case of Janet Kaphiphe Ouma & Another vs. Marie Stoves International (Kenya) Kisumu HCCC No. 68 of2007 Ali-Aroni, J. citing the decision in Edward Murica Through Stanley Muriea vs. Nathaniel D. Schulter Civil Appeal No. 23 of1997said:
66. "In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations...Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence"
67. The appellant alleges that primary judgment was delivered against a person who was not insured by the appellant and proceeded to list the name of the purported insured as John Ribe Rariuki however, the said John Kibe Kariuki did not even record statement or testify in court to confirm whether he was the person who had the insurable interest with defendants hence such statement also remains as pure allegation.
68. The Respondent submits that the claim form that is purported to have been filed by John Kibe Kariuki is pure fabrication of the following reasons that the alleged driver in page 23 of the record appeal who is purported to have recorded statement in the claim for never indicated his name nor sign the statement,the alleged insured John Kibe Kariuki on the alleged claim form stated as follows :-I was called by a friend about the accident and not the driver and from the statement of the alleged driver he didn't state whether he sustained injuries and the same claim is also not dated.
69. The appellants witness Charles Kanjuki Gathu who testified as DW1 and stated that he the legal officer to the appellants company and therefore duly authorized to plead on behalf of the appellants proceeded to produce Motor Accident Report Form purported to have been filed by John Ribe Kariukithe alleged insured without calling the maker and therefore contrary to the provisions of Section 35 of the law of evidence Act on the production of documents.
70. Section 35 (1) of The Evidence Act provides that in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say—
(a) if the maker of the statement either—
b. had personal knowledge of the matters dealt with by the statement; or
c. where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and ifthe maker of the statement is called as a witness in the proceedings: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence, or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.
71. The respondent submits that the only person who was best fitted to proceed and produce the Motor Accident Report Form purported to have been filed by John RibeKariuki should have been John Kibe Rariuki himself who didn't even record a statement raising the doubt whether he was the insured considering the inconsistence highlighted in the Motor Accident Report Form hence in absence of appellants having satisfied the conditions stated under subsection 1(b) of Evidence Act.
72. Reliance is placed in the case of EMMANUEL OTIENO KONGILI & Another v JIMMY JOSEPH O. OWUOR [20111 eKLRWhere the court held that :- '.....He did not demonstrate any efforts he had undertaken to avail such witnesses like issuance of witnesses summons without success. I do not therefore think that in the circumstances of this case the evidence of these witnesses could not have been secured had the respondent exercised reasonable diligence. In applying for the admission of the evidence in the trial court the respondent premised his application on section 33(b) and 35, of the Evidence Act. This section allows into evidence statements or documents by persons who cannot be called as witnesses. However for such sections to be invoked it must be demonstrated that the maker of the statement or document is: dead cannot be found; incapable of giving evidence; or If his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.
73. The appellant did not demonstrate or satisfy any of the above conditions.
74. Much as the appellant purported to rely on the last prerequisite aforesaid there was no evidence other than the appellant's assertion from the bar that it would be expensive to secure the attendance of such.
75. She submits that the said document should be expunged from the court as being inadmissible since it doesn't satisfy the conditions of Section 35 of the Evidence Act.
76. She submits that a close scrutiny of the said Motor Accident Report Form at the declaration section, the same is not dated and thus we submit that, this document was prepared as an afterthought to defeat the wheels of justice.
77. The Respondent submits that the court cannot establish when the document was prepared
78. In so far as the issue whether the primary suit was issued against a party who was sued while he was deceased the Respondent submits that the said allegations are farfetched and purely misleading since the evidence tendered in court on 14th December 2023 chief from Mirii location as Dw-2 in regard to burial permit no, 670555 in respect of the Peter Kinyanjui Kirungu is full of contradiction and therefore inadmissible in evidence.
79. It is submitted that during cross-examination Dw-2 was an incredible witness whose evidence should be disregarded because he admitted that the said burial permit did not emanate from his location of jurisdiction and did not know the person who issued the same
80. Further it is submitted that Dw-2 admitted that he did have counterfoil copy of the said burial permit to authenticate the validity thereof despite confirming that once a burial permit has been issued there is always a copy of the counterfoil which remains.
81. She submits that Dw-2 did not authenticate the said burial permit and therefore appellants allegations that the said Peter Kinyanjui Kirungu was deceased by the time the process server stated that he had served him pleadings in the primary suit are baseless.
82. It's her submission that this explains why the appellant didn't even seek to set aside the judgment in the primary suit.
83. She submits that the appellant did not challenged the respondent’s case and having admitted by way document evidence by production of certificate of insurance to proof that indeed it had insured the suit motor vehicle Registration KUS 996 and proceeded to attach a copy of certificate of insurance then appellants were under obligations to satisfy the judgment issued in Milimani Cmcc No. 7059 Of
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