RULING AND JUDGMENT
THE RULING
1. Coming up for ruling is the Defendant/ Applicant’s Notice of Motion application dated 20thApril 2026 seeking to arrest the judgment scheduled for 23rd July 2026 (which has since been rescheduled to 6th August 2026 and notices issued to the parties) and to set aside the interlocutory judgment entered in favour of the Plaintiff as against the Defendant in default of appearance and filing of defence. The Defendant also prays for leave to file its defence and costs of this application.
2. In support of the application, the Defendant’s Legal Officer, Peter Waweru, swore an affidavit stating that upon their counsel attending court on 3rd December, 2025, that it came to their knowledge that there was interlocutory judgment entered against the Defendant and matter reserved for final judgment. It was deponed that the failure to file defence was not deliberate as it was beyond their control. The Defendant admits being notified of the primary suit in the lower court, Mombasa SRMCC No. 1917 of 2018 and the decretal sum awarded was fully settled. The Defendant annexed court documents in support of the fact that Kshs. 902,000/= was paid to the Interested Party herein, and who was the Plaintiff in the Decretal Holder in the lower court suit. They were not aware of any pending payments arising from the primary suit. The Defendant prays to be granted leave to file its defence.
3. The Plaintiff opposed the application by filing the Replying Affidavit dated 25th May 2026. It was deponed that the Defendant has failed to offer any plausible grounds warranting the orders sought. The Plaintiff stated that he submitted all the required documents to the Defendant being his insurer for purposes of settling the decretal award.
4. The Defendant ought to meet all the expenses incurred in the execution process as it had delayed in settling the claim. Further, the amount settled was part payment and there remained a balance, which is occasioning the Interested Party to execute the Plaintiff directly. By allowing the application, it would amount to re-litigating the matter. No prejudice would be suffered by the Defendant if the application is dismissed as it failed to participate in the proceedings despite the opportunity to do so.
5. The Interested Party, Jumwa Kaingu, filed his Replying Affidavit dated 23rd May, 2026 in opposition of the Defendant’s application. He deponed that the Defendant was aware of this matter all along but it failed to take action. It was deponed that the Defendant was served with the Interested Party’s Statement of Defence dated 10th December 2022 and the Plaintiff’s application dated 17th November 2021, and the Defendant acknowledged receipt by stamping on the Interested Party and Plaintiff’s copy respectively.
6. It is not until 3rd December 2025 that the Defendant entered appearance. The indolence of the Defendant ought not to be condoned as it directly affects the rights of the parties to access justice. The Interested Party further deponed that the Defendant partially settled the decretal amount, hence is must have been aware if the full decretal amount having reviewed its underwriting files. The Defendant having admitted to be the insurer of the Plaintiff, it cannot distance itself from costs and interest awarded. No draft Statement of Defence has been filed. The application therefore ought to be dismissed with costs.
Analysis and determination
7. I have considered the application, supporting affidavit, the replying affidavits and the annexures thereto. The issue for determination is;
a. Whether the interlocutory judgment ought to be set aside
b. Who bears the costs
8. Setting aside of interlocutory judgments in default if appearance and defence is provided for under Order 10 Rule 11 of the Civil Procedure Rules, which provides as hereunder;
“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”
9. The court exercises its discretion in setting aside a regular default judgment but as a matter of right where the default judgment was irregular. In the case of James Kanyiita Nderitu & Another v Marios Philotas Ghika & Another [2016] eKLR, in setting out the criteria to be followed when exercising the discretion to set aside a regular and an irregular ex-parte judgment, the Court of Appeal held as follows:-
“In a regular default judgment, the defendant will have been duly served with Summons to Enter Appearance, but for one reason or another, he had failed to enter appearance or to file defence resulting in default judgment. Such a defendant is entitled under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment and will take into account such factors as the reason for the failure of the defendant to file his Memorandum of Appearance or defence, as the case may be, the length of time that has elapsed since the default Judgement was entered, whether the intended defence raises triable issues, the respective prejudice each party is likely to suffer, whether on the whole it is in the interest of justice to set aside the default judgment, among others.
In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with Summons to Enter Appearance. In such a situation, the default judgment is set aside ex-debito justitiae as a matter of right. The court does not even have to be moved by the party once it comes to its notice. In addition, the court will not venture into considerations or whether the intended defence raised triable issues or whether there has been inordinate delay in applying to set aside the irregular judgment. The reasons why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations.”
10. This court must first establish if the ex parte judgment was regular or irregular. The Defendant stated that it was not aware of the suit and interlocutory judgment entered against it until 3rd December, 2025. On the other hand, the Plaintiff and the Interested Party deponed that the Defendant was fully aware of the matter but opted not to defend the suit.
11. I have perused through the court records. It is a fact which is on record that the Summons to Enter Appearance dated 18th November, 2021 were issued to the Defendant. The original court’s copy was returned and it had a stamp impression of the Defendant company. The Affidavit of Service sworn by Morris Mwasangua, a licensed Court Process Server deponed that he visited the Defendant’s Office at Jubilee Building, Ground Floor along Moi Avenue, within Mombasa County and effected service of the Summons to Enter Appearance, and the pleadings institution this suit and the documents were received.
12. The interlocutory judgment entered against the Defendant was therefore regular. The issue is whether the discretion of the court should be exercised in favour of the Defendant. From James Kanyitta Nderitu & Another v Marios Philotas Ghika & ano (supra), the following criteria must be met before setting aside the interlocutory judgement;
a. R easons given for failing to enter appearance and filing of defence
b. Lapse of time since the default judgment was entered
c. Whether the intended defence raises triable issues
d. Whether prejudice will be suffered
e. Whether it is in the interest of justice
13. The Defendant stated that it was not aware of the suit until recently, when it came to know of the suit and the default judgment, and thereafter, it had to go through its underwriting documents before instructing its advocates to file this application. From the records, the Defendant entered appearance on 3rd December, 2025 and its advocate attended court when he became aware of the default judgment.
14. This application was filed on 4th May, 2026, 5 months after the Defendant became aware of the default judgment. The reasons given that the Defendant had to go through the policy documents does not hold water. The 5 months’ delay just to peruse underwriting documents and court documents before filing this application is inexcusable. I agree with the Respondent that the indolence of the Defendant must not be entertained.
15. On whether the defence raises triable issues, there is no draft Statement of Defence filed. Again, the application fails ion this ground. By reopening this suit, it will be prejudicial to the Respondents who have been actively involved in the suit while the Defendant was well aware of the suit having been served with the Summons to Enter Appearance as stated herein above. It is therefore in the interest of justice that this court exercises its discretion in declining to set aside the default judgment.
16. The Respondents having actively participated in defending the application, there is no reason to deny them costs. The court exercises its discretion and award costs to the Respondents.
17. In the upshot, the court orders as hereunder;
a. The Notice of Motion dated 20th April 2026 lacks merits and is hereby dismissed.
b. Costs of the application awarded to the Plaintiff and Interested Party Respondents.
THE JUDGMENT
18. The application seeking to set aside the ex parte judgement having been dismissed, and the delivery of the scheduled judgment having not been arrested, this court shall proceed to deliver its judgment.
19. The basis of the claim herein is a Plaint dated 17th November 2021. The Plaintiff averred that it was a holder of the Public Liability Policy No. MSA/ 0502/000016/2016 where the Defendant was the insurer. The Interested Party who was carrying out maintenance works on a building in Mvita was injured in the cause of his duties, and he was covered by the said insurance policy.
20. The Interested Party instituted a suit in Mombasa Civil Case No. 1917 of 2018 where he sued the Plaintiff in this case for compensation for the injuries sustained. The Plaintiff informed the Defendant of the suit and an advocate was instructed by the Defendant to defend the suit. Subsequently, judgment was entered in favour of the Plaintiff and Kshs. 1,508,685.00. The Defendant filed an appeal against the said judgment. On final determination, the Defendant paid Kshs. 900,000.00 but failed to settle the balance of Kshs. 608, 685.00.
21. The Interested Party Commenced execution proceedings against the Plaintiff for the unpaid balance, hence the filing of this suit. The Plaintiff prayed for judgment against the Defendant for the following in summary;
a. A declaration that the Public Liability Policy issued by the Defendant was valid as at the time the Interested Party was injured
b. A declaration that the Defendant is liable to indemnify the Plaintiff, and pay the entire decretal sum to the Interested Party in the primary suit
c. Costs and interest of the suit
22. The Interested Party filed his Statement of Defence dated 10th December, 2021. He admitted that the Defendant settled part of the decretal sum leaving a balance of Kshs. 606,685.00 which is inclusive of costs both in the lower court and in the High Court and execution costs. The Interested Party being a stranger to the public liability policy between the Plaintiff and the Defendant, he prayed for judgment against the Plaintiff for Kshs. 606, 685.00 with costs of this suit. He also prayed for interest on above from date of filing suit till payment in full.
23. The Defendant having been duly served failed to enter appearance or file statement of defence, interlocutory judgment was entered against it the matter proceeded for formal proof hearing. The Plaintiff tendered his evidence in court. He adopted his Witness Statement as his evidence in chief and relied on the documents produced. On cross examination by the counsel for the Interested Party, the Plaintiff admitted having knowledge of the primary suit, and that the insurance had paid the costs.
24. The Interested Party did not adduce any evidence.
25. The parties were directed to file written submissions. Only the Plaintiff complied by filing the submissions dated 25th May, 2026.
Analysis and determination
26. This court has considered the pleadings on record and evidence. The issues for determination are: -
(a) Whether the Plaintiff has proved the existence of an insurance contractual relationship between the Plaintiff and the Defendant
(b) Whether the Defendant breached the contract by failing to fully settle the decretal sum owing to the Interested Party
(c) Whether the Plaintiff is entitled to the reliefs sought
(d) Whether the Plaintiff is entitled to costs.
27. It is not disputed that the Defendant did not enter appearance or file a defence despite service of summons. Nevertheless, the law is settled that even where a matter proceeds by way of formal proof, the Plaintiff bears the burden of proving its case on a balance of probabilities.
28. Section 107 of the Evidence Act provides that: -
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
29. The Court of Appeal in Karugi & Another v Kabiya & 3 Others (1987) KLR 347 held that: -
“Neither can I agree with Mr. Waweru that the burden of proof is in any way lessened because the case is heard by way of formal proof. The burden on the plaintiff to prove his case remains the same, though it is true that, where the matter is not defended, or, as here, validly defended that burden may become easier to discharge.”
30. From the evidence adduced at the formal proof hearing, the Plaintiff produced evidence that there was an existing insurance policy where the Defendant was the insurer and the Plaintiff was the policy holder. The Interested Party at the time of the accident was covered by the said insurance policy. This fact was not denied by the Defendant in his Notice of Motion and its Supporting Affidavit, both dated 20th April, 2025. There was therefore an existing contractual relationship between the two parties.
31. On the issue of breach of contract, the Court of Appeal in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another (2001) KLR 112 held that a court cannot rewrite a contract for the parties and that parties are bound by the terms of their agreement unless coercion, fraud or undue influence is proven.
32. In the present case, there is no evidence suggesting that the agreement between the parties was invalid. The Defendant in partially settling the decretal sum is an admission that it was obligated to perform its part of the contract. The judgment of the lower court awarding Kshs. 1,508,685.00 has not been challenged. The fact that the Defendant admits making a payment of Kshs. 900,000.00 cannot be a final payment as alleged by the Defendant.
33. The Defendant was silent on the payment of the balance of Kshs. 608,685.00, considering that the judgment of the primary suit had not been varied and/ or set aside. Failure to settle the full decretal sum therefore amounts to a breach of the contractual obligations.
34. On whether the Plaintiff is entitled to the reliefs sought, the Interested Party’s participation in the suit confirms that there were execution proceedings against the Plaintiff. Having found that there existed a valid contract between the Plaintiff and the Defence, and that the Defendant breached that contract by failing to satisfy the full decretal sum, and that execution proceedings have been commenced against the Plaintiff seeking for his warrant of arrest, I find that the Plaintiff has proved on a balance of probabilities that he is entitled to the reliefs sought.
35. On costs, the Defendant’s failure to settle the full decretal sum gave rise to these suit. The Plaintiff and the Interested Party are hereby awarded costs of the suit.
36. Accordingly, judgment is entered for the Plaintiff against the Defendant as follows: -
(a) A declaration that Public Liability Policy of Insurance No. MSA/ 0502/ 000016/ 2016 rendered by the Defendant was valid at the date of the accident subject hereof.
(b) A declaration that the Defendant is liable to identify the Plaintiff and make good to the Interested Party the entire decretal sum in SRMCC No. 1917 of 2018 (Jumwa Kaingu VS Omar Athumani Mohammed T/a Paint Work and General Maintenance)
(c) An order directing the Defendant to pay and make good the entire decretal sum awarded to the Interested Party against the Plaintiff in the above mentioned suit.
(d) That the Defendant do pay to the Interested Party the balance of Ksh. 608.685.00 with interest from dated of filing suit.
(e) Costs of the suit awarded to the Plaintiff and the Interested Party with interest from dated of judgment
Dated and delivered virtually at Mombasa this 6th day of August, 2026.
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Otieno Advocate h/b for Mr. Adhoch Advocate for the Plaintiff
Mr. Tumaini Advocate for the Defendant
N/A by the Interested Party
Ms. Salwa, Court Assistant
THE RULING
1. Coming up for ruling is the Defendant/ Applicant’s Notice of Motion application dated 20thApril 2026 seeking to arrest the judgment scheduled for 23rd July 2026 (which has since been rescheduled to 6th August 2026 and notices issued to the parties) and to set aside the interlocutory judgment entered in favour of the Plaintiff as against the Defendant in default of appearance and filing of defence. The Defendant also prays for leave to file its defence and costs of this application.
2. In support of the application, the Defendant’s Legal Officer, Peter Waweru, swore an affidavit stating that upon their counsel attending court on 3rd December, 2025, that it came to their knowledge that there was interlocutory judgment entered against the Defendant and matter reserved for final judgment. It was deponed that the failure to file defence was not deliberate as it was beyond their control. The Defendant admits being notified of the primary suit in the lower court, Mombasa SRMCC No. 1917 of 2018 and the decretal sum awarded was fully settled. The Defendant annexed court documents in support of the fact that Kshs. 902,000/= was paid to the Interested Party herein, and who was the Plaintiff in the Decretal Holder in the lower court suit. They were not aware of any pending payments arising from the primary suit. The Defendant prays to be granted leave to file its defence.
3. The Plaintiff opposed the application by filing the Replying Affidavit dated 25th May 2026. It was deponed that the Defendant has failed to offer any plausible grounds warranting the orders sought. The Plaintiff stated that he submitted all the required documents to the Defendant being his insurer for purposes of settling the decretal award.
4. The Defendant ought to meet all the expenses incurred in the execution process as it had delayed in settling the claim. Further, the amount settled was part payment and there remained a balance, which is occasioning the Interested Party to execute the Plaintiff directly. By allowing the application, it would amount to re-litigating the matter. No prejudice would be suffered by the Defendant if the application is dismissed as it failed to participate in the proceedings despite the opportunity to do so.
5. The Interested Party, Jumwa Kaingu, filed his Replying Affidavit dated 23rd May, 2026 in opposition of the Defendant’s application. He deponed that the Defendant was aware of this matter all along but it failed to take action. It was deponed that the Defendant was served with the Interested Party’s Statement of Defence dated 10th December 2022 and the Plaintiff’s application dated 17th November 2021, and the Defendant acknowledged receipt by stamping on the Interested Party and Plaintiff’s copy respectively.
6. It is not until 3rd December 2025 that the Defendant entered appearance. The indolence of the Defendant ought not to be condoned as it directly affects the rights of the parties to access justice. The Interested Party further deponed that the Defendant partially settled the decretal amount, hence is must have been aware if the full decretal amount having reviewed its underwriting files. The Defendant having admitted to be the insurer of the Plaintiff, it cannot distance itself from costs and interest awarded. No draft Statement of Defence has been filed. The application therefore ought to be dismissed with costs.
Analysis and determination
7. I have considered the application, supporting affidavit, the replying affidavits and the annexures thereto. The issue for determination is;
a. Whether the interlocutory judgment ought to be set aside
b. Who bears the costs
8. Setting aside of interlocutory judgments in default if appearance and defence is provided for under Order 10 Rule 11 of the Civil Procedure Rules, which provides as hereunder;
“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”
9. The court exercises its discretion in setting aside a regular default judgment but as a matter of right where the default judgment was irregular. In the case of James Kanyiita Nderitu & Another v Marios Philotas Ghika & Another [2016] eKLR, in setting out the criteria to be followed when exercising the discretion to set aside a regular and an irregular ex-parte judgment, the Court of Appeal held as follows:-
“In a regular default judgment, the defendant will have been duly served with Summons to Enter Appearance, but for one reason or another, he had failed to enter appearance or to file defence resulting in default judgment. Such a defendant is entitled under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment and will take into account such factors as the reason for the failure of the defendant to file his Memorandum of Appearance or defence, as the case may be, the length of time that has elapsed since the default Judgement was entered, whether the intended defence raises triable issues, the respective prejudice each party is likely to suffer, whether on the whole it is in the interest of justice to set aside the default judgment, among others.
In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with Summons to Enter Appearance. In such a situation, the default judgment is set aside ex-debito justitiae as a matter of right. The court does not even have to be moved by the party once it comes to its notice. In addition, the court will not venture into considerations or whether the intended defence raised triable issues or whether there has been inordinate delay in applying to set aside the irregular judgment. The reasons why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations.”
10. This court must first establish if the ex parte judgment was regular or irregular. The Defendant stated that it was not aware of the suit and interlocutory judgment entered against it until 3rd December, 2025. On the other hand, the Plaintiff and the Interested Party deponed that the Defendant was fully aware of the matter but opted not to defend the suit.
11. I have perused through the court records. It is a fact which is on record that the Summons to Enter Appearance dated 18th November, 2021 were issued to the Defendant. The original court’s copy was returned and it had a stamp impression of the Defendant company. The Affidavit of Service sworn by Morris Mwasangua, a licensed Court Process Server deponed that he visited the Defendant’s Office at Jubilee Building, Ground Floor along Moi Avenue, within Mombasa County and effected service of the Summons to Enter Appearance, and the pleadings institution this suit and the documents were received.
12. The interlocutory judgment entered against the Defendant was therefore regular. The issue is whether the discretion of the court should be exercised in favour of the Defendant. From James Kanyitta Nderitu & Another v Marios Philotas Ghika & ano (supra), the following criteria must be met before setting aside the interlocutory judgement;
a. R easons given for failing to enter appearance and filing of defence
b. Lapse of time since the default judgment was entered
c. Whether the intended defence raises triable issues
d. Whether prejudice will be suffered
e. Whether it is in the interest of justice
13. The Defendant stated that it was not aware of the suit until recently, when it came to know of the suit and the default judgment, and thereafter, it had to go through its underwriting documents before instructing its advocates to file this application. From the records, the Defendant entered appearance on 3rd December, 2025 and its advocate attended court when he became aware of the default judgment.
14. This application was filed on 4th May, 2026, 5 months after the Defendant became aware of the default judgment. The reasons given that the Defendant had to go through the policy documents does not hold water. The 5 months’ delay just to peruse underwriting documents and court documents before filing this application is inexcusable. I agree with the Respondent that the indolence of the Defendant must not be entertained.
15. On whether the defence raises triable issues, there is no draft Statement of Defence filed. Again, the application fails ion this ground. By reopening this suit, it will be prejudicial to the Respondents who have been actively involved in the suit while the Defendant was well aware of the suit having been served with the Summons to Enter Appearance as stated herein above. It is therefore in the interest of justice that this court exercises its discretion in declining to set aside the default judgment.
16. The Respondents having actively participated in defending the application, there is no reason to deny them costs. The court exercises its discretion and award costs to the Respondents.
17. In the upshot, the court orders as hereunder;
a. The Notice of Motion dated 20th April 2026 lacks merits and is hereby dismissed.
b. Costs of the application awarded to the Plaintiff and Interested Party Respondents.
THE JUDGMENT
18. The application seeking to set aside the ex parte judgement having been dismissed, and the delivery of the scheduled judgment having not been arrested, this court shall proceed to deliver its judgment.
19. The basis of the claim herein is a Plaint dated 17th November 2021. The Plaintiff averred that it was a holder of the Public Liability Policy No. MSA/ 0502/000016/2016 where the Defendant was the insurer. The Interested Party who was carrying out maintenance works on a building in Mvita was injured in the cause of his duties, and he was covered by the said insurance policy.
20. The Interested Party instituted a suit in Mombasa Civil Case No. 1917 of 2018 where he sued the Plaintiff in this case for compensation for the injuries sustained. The Plaintiff informed the Defendant of the suit and an advocate was instructed by the Defendant to defend the suit. Subsequently, judgment was entered in favour of the Plaintiff and Kshs. 1,508,685.00. The Defendant filed an appeal against the said judgment. On final determination, the Defendant paid Kshs. 900,000.00 but failed to settle the balance of Kshs. 608, 685.00.
21. The Interested Party Commenced execution proceedings against the Plaintiff for the unpaid balance, hence the filing of this suit. The Plaintiff prayed for judgment against the Defendant for the following in summary;
a. A declaration that the Public Liability Policy issued by the Defendant was valid as at the time the Interested Party was injured
b. A declaration that the Defendant is liable to indemnify the Plaintiff, and pay the entire decretal sum to the Interested Party in the primary suit
c. Costs and interest of the suit
22. The Interested Party filed his Statement of Defence dated 10th December, 2021. He admitted that the Defendant settled part of the decretal sum leaving a balance of Kshs. 606,685.00 which is inclusive of costs both in the lower court and in the High Court and execution costs. The Interested Party being a stranger to the public liability policy between the Plaintiff and the Defendant, he prayed for judgment against the Plaintiff for Kshs. 606, 685.00 with costs of this suit. He also prayed for interest on above from date of filing suit till payment in full.
23. The Defendant having been duly served failed to enter appearance or file statement of defence, interlocutory judgment was entered against it the matter proceeded for formal proof hearing. The Plaintiff tendered his evidence in court. He adopted his Witness Statement as his evidence in chief and relied on the documents produced. On cross examination by the counsel for the Interested Party, the Plaintiff admitted having knowledge of the primary suit, and that the insurance had paid the costs.
24. The Interested Party did not adduce any evidence.
25. The parties were directed to file written submissions. Only the Plaintiff complied by filing the submissions dated 25th May, 2026.
Analysis and determination
26. This court has considered the pleadings on record and evidence. The issues for determination are: -
(a) Whether the Plaintiff has proved the existence of an insurance contractual relationship between the Plaintiff and the Defendant
(b) Whether the Defendant breached the contract by failing to fully settle the decretal sum owing to the Interested Party
(c) Whether the Plaintiff is entitled to the reliefs sought
(d) Whether the Plaintiff is entitled to costs.
27. It is not disputed that the Defendant did not enter appearance or file a defence despite service of summons. Nevertheless, the law is settled that even where a matter proceeds by way of formal proof, the Plaintiff bears the burden of proving its case on a balance of probabilities.
28. Section 107 of the Evidence Act provides that: -
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
29. The Court of Appeal in Karugi & Another v Kabiya & 3 Others (1987) KLR 347 held that: -
“Neither can I agree with Mr. Waweru that the burden of proof is in any way lessened because the case is heard by way of formal proof. The burden on the plaintiff to prove his case remains the same, though it is true that, where the matter is not defended, or, as here, validly defended that burden may become easier to discharge.”
30. From the evidence adduced at the formal proof hearing, the Plaintiff produced evidence that there was an existing insurance policy where the Defendant was the insurer and the Plaintiff was the policy holder. The Interested Party at the time of the accident was covered by the said insurance policy. This fact was not denied by the Defendant in his Notice of Motion and its Supporting Affidavit, both dated 20th April, 2025. There was therefore an existing contractual relationship between the two parties.
31. On the issue of breach of contract, the Court of Appeal in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another (2001) KLR 112 held that a court cannot rewrite a contract for the parties and that parties are bound by the terms of their agreement unless coercion, fraud or undue influence is proven.
32. In the present case, there is no evidence suggesting that the agreement between the parties was invalid. The Defendant in partially settling the decretal sum is an admission that it was obligated to perform its part of the contract. The judgment of the lower court awarding Kshs. 1,508,685.00 has not been challenged. The fact that the Defendant admits making a payment of Kshs. 900,000.00 cannot be a final payment as alleged by the Defendant.
33. The Defendant was silent on the payment of the balance of Kshs. 608,685.00, considering that the judgment of the primary suit had not been varied and/ or set aside. Failure to settle the full decretal sum therefore amounts to a breach of the contractual obligations.
34. On whether the Plaintiff is entitled to the reliefs sought, the Interested Party’s participation in the suit confirms that there were execution proceedings against the Plaintiff. Having found that there existed a valid contract between the Plaintiff and the Defence, and that the Defendant breached that contract by failing to satisfy the full decretal sum, and that execution proceedings have been commenced against the Plaintiff seeking for his warrant of arrest, I find that the Plaintiff has proved on a balance of probabilities that he is entitled to the reliefs sought.
35. On costs, the Defendant’s failure to settle the full decretal sum gave rise to these suit. The Plaintiff and the Interested Party are hereby awarded costs of the suit.
36. Accordingly, judgment is entered for the Plaintiff against the Defendant as follows: -
(a) A declaration that Public Liability Policy of Insurance No. MSA/ 0502/ 000016/ 2016 rendered by the Defendant was valid at the date of the accident subject hereof.
(b) A declaration that the Defendant is liable to identify the Plaintiff and make good to the Interested Party the entire decretal sum in SRMCC No. 1917 of 2018 (Jumwa Kaingu VS Omar Athumani Mohammed T/a Paint Work and General Maintenance)
(c) An order directing the Defendant to pay and make good the entire decretal sum awarded to the Interested Party against the Plaintiff in the above mentioned suit.
(d) That the Defendant do pay to the Interested Party the balance of Ksh. 608.685.00 with interest from dated of filing suit.
(e) Costs of the suit awarded to the Plaintiff and the Interested Party with interest from dated of judgment
Dated and delivered virtually at Mombasa this 6th day of August, 2026.
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Otieno Advocate h/b for Mr. Adhoch Advocate for the Plaintiff
Mr. Tumaini Advocate for the Defendant
N/A by the Interested Party
Ms. Salwa, Court Assistant