(Being an Appeal from the Judgment and Decree of the Magistrates Court at Kwale Hon. R. K. Ogolla, Resident Magistrate delivered on 25 th June 2025 in Kwale Magistrates PMCC No. E032 of 2022)
1. The appellant filed this appeal through the memorandum of appeal dated 3 rd July 2025 praying for orders that the appeal be allowed and the judgment delivered on 25 th June 2025 dismissing the appellant’s suit against the respondent be set aside and be substituted with an order allowing the appellant/plaintiff’s suit and costs be awarded to the appellant.
2. By way of background, the appellant obtained judgment against the respondent’s insured Marsden Mwashigadi Manoo and Glorius Safaris Ltd in the sum of KShs 2,476,000/= on 28 th February 2018 in a primary suit at Kwale Magistrates’ Court PMCC No. 31 of 2015 in a claim for general and special damages for the estate and dependents of Suban Nunow Osman (Deceased) who was fatally injured following a road traffic accident involving the respondent’s insured’s motor vehicle registration number KBA 475Y and the deceased. According to a demand letter for settlement dated 6 th February 2018 (sic) from the appellant’s advocates to the advocates for the insured, the judgment sum together with costs was KShs 2,539,092/=.
3. The insured filed appeal at the High Court in Mombasa being HCCA No. 54 of 2018 which was dismissed with costs to the appellant herein on 2 nd November 2020. As at this date, the judgment sum together with the costs of the suit and the appeal stood at KShs 3,459,201/=. The appellant sent a demand letter dated 13 th November 2020 to the respondent and the insured’s advocates. According to the plaint dated 15 th February 2022, the respondent herein partially settled the outstanding sum to the tune of KShs 2,620,054/= leaving a balance of KShs 970,146/=.
4. The appellant sued the respondent for this outstanding sum together with interest at 14% p.a. in a plaint dated 15 th February 2022.
5. In an amended defence dated 29 th May 2023, the respondent averred that it had settled the decretal sum to the tune of KShs 3,000,003/= in satisfaction of the judgment in accordance with the provisions of the Insurance (Motor Vehicle Third Party Risks) Act (Cap. 405) Laws of Kenya and the policy of insurance entered into between itself and the insured as the maximum statutory limit that it is required to pay under section 5(b)(iv) the Act and therefore it had discharged its responsibility in relation to the claim and could not be held liable to settle the balance. The respondent averred that besides the KShs 2,620,054/= stated by the appellant in its plaint as having been paid, the respondent had made a further payment of KShs 379,949/= on 24 th January 2023, thereby making the total payment KShs 3,000,003/=. The respondent therefore prayed that the appellant’s suit against it be dismissed with costs.
6. In his reply to defence dated 25 th April 2024, the appellant did not dispute that indeed he had received a total sum of KShs 3,000,003/= as averred by the respondent in its statement of defence. For that reason, it means that the claim by the appellant was reduced from KShs 970,146/= to KShs 590,197/=.
7. The case was heard with each party calling one witness. The appellant, Osman Samoh Ibrahim, PW 1, testified and said that he had been paid some money by the respondent as compensation for his mother’s death. However, he was not sure how much had been paid as he kept mentioning different figures. What he was sure was that some amount was outstanding payment. The respondent testified through DW 1, Kelvin Ngure, the deputy claim’s manager of the company. He gave evidence that the respondent had paid a total of KShs 3,000,003/= in two instalments, first KShs 2,602,000/= and second KShs 379,949/=.
8. The facts of the case are as per the brief outline above and there is no dispute about them.
9. In its judgment dated 25 th June 2025, the trial court dismissed the appellant’s claim finding that on various decisions cited the respondent had discharged its statutory obligations by payment of the KShs 3,000,003/= and could not pay any more to the appellant.
10. The appellant was dissatisfied with that decision and has filed the present appeal based on the following grounds:
a. The learned magistrate erred in law and in fact by dismissing the plaintiff’s suit against the defendant when the plaintiff had proved on a balance of probability that the defendant insurance company was under statutory obligation to settle any interest on the principal amount which accrued as a direct result and consequence of the defendant’s delay and/or failure to pay the decretal amount in time.
b. The learned magistrate erred in law and in fact in misconsturiing and failing to properly appreciate and interpret the effect of the proviso under section 5(b)(iv) of the Motor Vehilce (Third Party Risks) Act thereby arriving at a wrong decision.
c. The learned trial magistrate erred in law and in fact in failing to hold that costs and interest over and above the maximum compensation amount of KShs 3,000,000/= are payable by the insurer and not the insured.
d. The learned trial magistrate erred in law and in fact by failing to consider the appellant/plaintiff’s submissions and the authorities relied upon thereby arriving at a wrong decision.
e. The learned trial magistrate violated the principle of stare decisis hence exercised her discretion wrongly.
11. The appellant thus prays that the appeal be allowed with costs to the appellant and the judgment of the trial court be set aside and substituted with an order allowing the appellant/plaintiff’s suit.
12. The appeal was canvassed by way of written submissions filed by learned counsels for the appellant only. The respondent did not file submissions.
13. This being a first appeal, the duty of the court is to consider, re-evaluate, and re-analyze the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
14. I have considered the grounds of appeal as set out in the memorandum, the trial court’s record, the submissions by learned counsel for the appellant and the cited cases. Learned counsel for the appellant submits that the issue for determination is whether the trial magistrate erred in law and fact by dismissing the appellant’s suit against the respondent when the appellant had proved on a balance of probability that the respondent insurance company was under statutory obligation to settle any interest on the principal amount which accrued as a direct result and consequence of the respondent’s delay and/or failure to pay the decretal amount in time. The issue for determination is thus simply whether the learned trial Magistrate erred in dismissing the appellant’s suit against the respondent and if so, what are the appropriate orders herein.
15. Learned counsel for the appellant submits that the suit was based on sections 5(b) and 10 of the Insurance (Motor Vehicle Third Party Risks) Act. The said sections provide as follows:
S. 5. In order to comply with the requirements of section 4, the policy of insurance must be a policy which—
a. is issued by a company which is required under the Insurance Act ( Cap. 487 ) to carry on motor vehicle insurance business; and
b. insures such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the vehicle on a road:
Provided that a policy in terms of this section shall not be required to cover—
i. liability in respect of the death arising out of and in the course of his employment of a person in the employment of a person insured by the policy or of bodily injury sustained by such a person arising out of and in the course of his employment; or
ii. except in the case of a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, liability in respect of the death of or bodily injury to persons being carried in or upon or entering or getting on to or alighting from the vehicle at the time of the occurrence of the event out of which the claims arose; or
iii. any contractual liability;
iv. liability of any sum in excess of three million shillings, arising out of a claim by one person.
S. 10(1). If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (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.
16. In the present case, there was no dispute on the liability of the respondent to settle the judgment or principal sum including interest and costs. The only issue was whether or not the respondent could only settle the amounts due up to the statutory maximum of KShs 3,000,000/=.
17. According to the appellant section 5(b)(iv) of the Act above only applies to liability in respect of the principal award and not the interest and costs which follow the event as provided for under section 27 of the Civil Procedure Act (Cap. 27) Laws of Kenya.
18. Learned counsel has cited the case of Peter Gichihi Njuguna v Jubilee Insurance Co. Ltd [2016] KEHC 5545 (KLR) where, the High Court, Janet Mulwa, J. while considering this issue held as follows:
“The drafters of the said Act No. 10 of 2006 in my considered view, did not envisage a situation, where the Insurance Company would fail to pay the claim if all conditions are met as is the case in this present case. To that extent, if by its failure, costs are incurred in pursuance of payment, the defendant ought to be penalized and condemned to pay costs to the plaintiff. Costs ordered by the court in its discretion cannot be construed to include the principle sum, in this case the capped sum of Kshs. 3,000,000/=. It is trite that costs follow the event, unless otherwise ordered by the court.”
19. On the same issue in the case of Kiamuko & another (Suing as Administrators of the Estate of the Late Evans Kyalo Maundu - Deceased) v ICEA Lion General Insurance Co. Limited [2022] KEHC 11682 (KLR) G. V. Odunga, J. (as he then was) was considering the two sections of the Act above with respect to the issue of costs and interest and particularly whether the monies paid by the insurer to the decree holder was inclusive or exclusive of costs and interest. While citing the Peter Gichihi Njuguna decision above, the learned Judge pointed out that section 10 of the Act expressly states that the insurer is under an obligation to pay the sum under paragraph (b) of section 5 of the Act 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. The learned Judge went further and held that:
“The Respondent seems to be of the view that the statutory limit of Kshs 3,000,000.00 includes costs and interests and that where the award exceeds that amount then the insurer is not obligated to settle any amount over and above the same including costs and interests. With due respect, I beg to differ. Section 5 aforesaid only deals with liability in respect of the principal award. It does not contemplate interest or costs which follow the event. Accordingly, where the insurer, knowing well that it is liable to pay the said sum fails to do so and proposes to do so in a manner that does not satisfy the decree in question, as a result of which the offer is rejected, then he cannot escape payment of costs and interests.”
20. It is apparent from the above cited decisions, which I am persuaded to follow, that costs and interest on the judgment sum are paid separately and not as a component of the statutory limit of KShs 3,000,000/=. However, the two decisions read closely show that the elements of costs and interest are not paid as a matter of course. They will be paid depending on the circumstances under which the insurer failed to pay the judgment sum. In the Kiamuko case the learned Judge went ahead to state that:
“As I have stated above the insurer may only be exempted from paying costs where the offer is made in respect of its full liability. In this case, the offer to pay did not mention any costs or interests since the Defendant has always maintained that it is not liable to pay costs and interests. In my view, that offer was not for full payment. However, the Defendant expected the Plaintiff to accept the same in full payment. In those circumstances, the Plaintiff was entitled to reject the offer as it did.”
21. In the present case, the respondent is not being called upon to pay a judgment sum beyond the statutory limit of KShs 3,000,000/=. The judgment of the trial court did not surpass that limit so as to leave the balance to be paid by the insured. The judgment sum of the trial court was for KShs 2,476,000/=. The rest of the amount was costs. Indeed, the respondent paid part of the costs, thereby making the total amount paid KShs 3,000,003/=. It declined to pay the balance of the costs KShs 590,197/= which should be the claim in the declaratory suit that gave rise to this appeal.
22. I have looked at the decision of APA Insurance Limited v Waitiki & another (Suing as the Administrator of the Estate of Michael Thuo Waitiki) [2024] KEHC 1450 (KLR) relied upon by the learned trial magistrate in her decision and I find that the case did not consider whether the issue of interest and costs formed part of the statutory capping of compensation at KShs 3,000,000/=. I also note that the learned magistrate failed to make reference to the Kiamuko case which was provided by learned counsel for the appellant for the court’s guidance and which dealt directly with the issue at hand before the trial court. Had the learned trial magistrate done so, she would have appropriately advised herself on the issue whether or not costs and interest formed part of the statutory limit of KShs 3,000,000/= payable by insurers under the Act.
23. I find that the learned trial Magistrate was in error in finding that the respondent was not liable to pay the amount claimed by the appellant and therefore that the appellant had not proved his case on a balance of probability. Having considered this appeal, I am satisfied that all the grounds of appeal have been ably established by the appellant.
24. Consequently, I find that the appeal has merit and the same is allowed. The judgment of the trial court dismissing the appellant’s suit is set aside and substituted with a finding allowing the appellant’s case before the trial court with the result that judgment be and is hereby entered for the appellant (plaintiff) against the respondent (defendant) in the sum of KShs 590,197/= plus interest at court rates.
25. The appellant also gets the costs of the appeal and the costs before the trial court.
26. Orders accordingly.
ANDAYI W. F.
JUDGE
Written, dated , signed and d elivered on the Virtual platform, Teams this 15 th day of June 2026.
Posted in the CTS:
Juma (Ms) for the appellant appearing earlier on the virtual platform.
N/A for the Respondent.
Hadijah h/b for Ummu: Court assistant
ANDAYI W. F.
JUDGE
kwale hC CA No. E019/202511/interest and costs in declratory suit-who pays
1. The appellant filed this appeal through the memorandum of appeal dated 3 rd July 2025 praying for orders that the appeal be allowed and the judgment delivered on 25 th June 2025 dismissing the appellant’s suit against the respondent be set aside and be substituted with an order allowing the appellant/plaintiff’s suit and costs be awarded to the appellant.
2. By way of background, the appellant obtained judgment against the respondent’s insured Marsden Mwashigadi Manoo and Glorius Safaris Ltd in the sum of KShs 2,476,000/= on 28 th February 2018 in a primary suit at Kwale Magistrates’ Court PMCC No. 31 of 2015 in a claim for general and special damages for the estate and dependents of Suban Nunow Osman (Deceased) who was fatally injured following a road traffic accident involving the respondent’s insured’s motor vehicle registration number KBA 475Y and the deceased. According to a demand letter for settlement dated 6 th February 2018 (sic) from the appellant’s advocates to the advocates for the insured, the judgment sum together with costs was KShs 2,539,092/=.
3. The insured filed appeal at the High Court in Mombasa being HCCA No. 54 of 2018 which was dismissed with costs to the appellant herein on 2 nd November 2020. As at this date, the judgment sum together with the costs of the suit and the appeal stood at KShs 3,459,201/=. The appellant sent a demand letter dated 13 th November 2020 to the respondent and the insured’s advocates. According to the plaint dated 15 th February 2022, the respondent herein partially settled the outstanding sum to the tune of KShs 2,620,054/= leaving a balance of KShs 970,146/=.
4. The appellant sued the respondent for this outstanding sum together with interest at 14% p.a. in a plaint dated 15 th February 2022.
5. In an amended defence dated 29 th May 2023, the respondent averred that it had settled the decretal sum to the tune of KShs 3,000,003/= in satisfaction of the judgment in accordance with the provisions of the Insurance (Motor Vehicle Third Party Risks) Act (Cap. 405) Laws of Kenya and the policy of insurance entered into between itself and the insured as the maximum statutory limit that it is required to pay under section 5(b)(iv) the Act and therefore it had discharged its responsibility in relation to the claim and could not be held liable to settle the balance. The respondent averred that besides the KShs 2,620,054/= stated by the appellant in its plaint as having been paid, the respondent had made a further payment of KShs 379,949/= on 24 th January 2023, thereby making the total payment KShs 3,000,003/=. The respondent therefore prayed that the appellant’s suit against it be dismissed with costs.
6. In his reply to defence dated 25 th April 2024, the appellant did not dispute that indeed he had received a total sum of KShs 3,000,003/= as averred by the respondent in its statement of defence. For that reason, it means that the claim by the appellant was reduced from KShs 970,146/= to KShs 590,197/=.
7. The case was heard with each party calling one witness. The appellant, Osman Samoh Ibrahim, PW 1, testified and said that he had been paid some money by the respondent as compensation for his mother’s death. However, he was not sure how much had been paid as he kept mentioning different figures. What he was sure was that some amount was outstanding payment. The respondent testified through DW 1, Kelvin Ngure, the deputy claim’s manager of the company. He gave evidence that the respondent had paid a total of KShs 3,000,003/= in two instalments, first KShs 2,602,000/= and second KShs 379,949/=.
8. The facts of the case are as per the brief outline above and there is no dispute about them.
9. In its judgment dated 25 th June 2025, the trial court dismissed the appellant’s claim finding that on various decisions cited the respondent had discharged its statutory obligations by payment of the KShs 3,000,003/= and could not pay any more to the appellant.
10. The appellant was dissatisfied with that decision and has filed the present appeal based on the following grounds:
a. The learned magistrate erred in law and in fact by dismissing the plaintiff’s suit against the defendant when the plaintiff had proved on a balance of probability that the defendant insurance company was under statutory obligation to settle any interest on the principal amount which accrued as a direct result and consequence of the defendant’s delay and/or failure to pay the decretal amount in time.
b. The learned magistrate erred in law and in fact in misconsturiing and failing to properly appreciate and interpret the effect of the proviso under section 5(b)(iv) of the Motor Vehilce (Third Party Risks) Act thereby arriving at a wrong decision.
c. The learned trial magistrate erred in law and in fact in failing to hold that costs and interest over and above the maximum compensation amount of KShs 3,000,000/= are payable by the insurer and not the insured.
d. The learned trial magistrate erred in law and in fact by failing to consider the appellant/plaintiff’s submissions and the authorities relied upon thereby arriving at a wrong decision.
e. The learned trial magistrate violated the principle of stare decisis hence exercised her discretion wrongly.
11. The appellant thus prays that the appeal be allowed with costs to the appellant and the judgment of the trial court be set aside and substituted with an order allowing the appellant/plaintiff’s suit.
12. The appeal was canvassed by way of written submissions filed by learned counsels for the appellant only. The respondent did not file submissions.
13. This being a first appeal, the duty of the court is to consider, re-evaluate, and re-analyze the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. In the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 it was held that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
14. I have considered the grounds of appeal as set out in the memorandum, the trial court’s record, the submissions by learned counsel for the appellant and the cited cases. Learned counsel for the appellant submits that the issue for determination is whether the trial magistrate erred in law and fact by dismissing the appellant’s suit against the respondent when the appellant had proved on a balance of probability that the respondent insurance company was under statutory obligation to settle any interest on the principal amount which accrued as a direct result and consequence of the respondent’s delay and/or failure to pay the decretal amount in time. The issue for determination is thus simply whether the learned trial Magistrate erred in dismissing the appellant’s suit against the respondent and if so, what are the appropriate orders herein.
15. Learned counsel for the appellant submits that the suit was based on sections 5(b) and 10 of the Insurance (Motor Vehicle Third Party Risks) Act. The said sections provide as follows:
S. 5. In order to comply with the requirements of section 4, the policy of insurance must be a policy which—
a. is issued by a company which is required under the Insurance Act ( Cap. 487 ) to carry on motor vehicle insurance business; and
b. insures such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the vehicle on a road:
Provided that a policy in terms of this section shall not be required to cover—
i. liability in respect of the death arising out of and in the course of his employment of a person in the employment of a person insured by the policy or of bodily injury sustained by such a person arising out of and in the course of his employment; or
ii. except in the case of a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, liability in respect of the death of or bodily injury to persons being carried in or upon or entering or getting on to or alighting from the vehicle at the time of the occurrence of the event out of which the claims arose; or
iii. any contractual liability;
iv. liability of any sum in excess of three million shillings, arising out of a claim by one person.
S. 10(1). If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (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.
16. In the present case, there was no dispute on the liability of the respondent to settle the judgment or principal sum including interest and costs. The only issue was whether or not the respondent could only settle the amounts due up to the statutory maximum of KShs 3,000,000/=.
17. According to the appellant section 5(b)(iv) of the Act above only applies to liability in respect of the principal award and not the interest and costs which follow the event as provided for under section 27 of the Civil Procedure Act (Cap. 27) Laws of Kenya.
18. Learned counsel has cited the case of Peter Gichihi Njuguna v Jubilee Insurance Co. Ltd [2016] KEHC 5545 (KLR) where, the High Court, Janet Mulwa, J. while considering this issue held as follows:
“The drafters of the said Act No. 10 of 2006 in my considered view, did not envisage a situation, where the Insurance Company would fail to pay the claim if all conditions are met as is the case in this present case. To that extent, if by its failure, costs are incurred in pursuance of payment, the defendant ought to be penalized and condemned to pay costs to the plaintiff. Costs ordered by the court in its discretion cannot be construed to include the principle sum, in this case the capped sum of Kshs. 3,000,000/=. It is trite that costs follow the event, unless otherwise ordered by the court.”
19. On the same issue in the case of Kiamuko & another (Suing as Administrators of the Estate of the Late Evans Kyalo Maundu - Deceased) v ICEA Lion General Insurance Co. Limited [2022] KEHC 11682 (KLR) G. V. Odunga, J. (as he then was) was considering the two sections of the Act above with respect to the issue of costs and interest and particularly whether the monies paid by the insurer to the decree holder was inclusive or exclusive of costs and interest. While citing the Peter Gichihi Njuguna decision above, the learned Judge pointed out that section 10 of the Act expressly states that the insurer is under an obligation to pay the sum under paragraph (b) of section 5 of the Act 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. The learned Judge went further and held that:
“The Respondent seems to be of the view that the statutory limit of Kshs 3,000,000.00 includes costs and interests and that where the award exceeds that amount then the insurer is not obligated to settle any amount over and above the same including costs and interests. With due respect, I beg to differ. Section 5 aforesaid only deals with liability in respect of the principal award. It does not contemplate interest or costs which follow the event. Accordingly, where the insurer, knowing well that it is liable to pay the said sum fails to do so and proposes to do so in a manner that does not satisfy the decree in question, as a result of which the offer is rejected, then he cannot escape payment of costs and interests.”
20. It is apparent from the above cited decisions, which I am persuaded to follow, that costs and interest on the judgment sum are paid separately and not as a component of the statutory limit of KShs 3,000,000/=. However, the two decisions read closely show that the elements of costs and interest are not paid as a matter of course. They will be paid depending on the circumstances under which the insurer failed to pay the judgment sum. In the Kiamuko case the learned Judge went ahead to state that:
“As I have stated above the insurer may only be exempted from paying costs where the offer is made in respect of its full liability. In this case, the offer to pay did not mention any costs or interests since the Defendant has always maintained that it is not liable to pay costs and interests. In my view, that offer was not for full payment. However, the Defendant expected the Plaintiff to accept the same in full payment. In those circumstances, the Plaintiff was entitled to reject the offer as it did.”
21. In the present case, the respondent is not being called upon to pay a judgment sum beyond the statutory limit of KShs 3,000,000/=. The judgment of the trial court did not surpass that limit so as to leave the balance to be paid by the insured. The judgment sum of the trial court was for KShs 2,476,000/=. The rest of the amount was costs. Indeed, the respondent paid part of the costs, thereby making the total amount paid KShs 3,000,003/=. It declined to pay the balance of the costs KShs 590,197/= which should be the claim in the declaratory suit that gave rise to this appeal.
22. I have looked at the decision of APA Insurance Limited v Waitiki & another (Suing as the Administrator of the Estate of Michael Thuo Waitiki) [2024] KEHC 1450 (KLR) relied upon by the learned trial magistrate in her decision and I find that the case did not consider whether the issue of interest and costs formed part of the statutory capping of compensation at KShs 3,000,000/=. I also note that the learned magistrate failed to make reference to the Kiamuko case which was provided by learned counsel for the appellant for the court’s guidance and which dealt directly with the issue at hand before the trial court. Had the learned trial magistrate done so, she would have appropriately advised herself on the issue whether or not costs and interest formed part of the statutory limit of KShs 3,000,000/= payable by insurers under the Act.
23. I find that the learned trial Magistrate was in error in finding that the respondent was not liable to pay the amount claimed by the appellant and therefore that the appellant had not proved his case on a balance of probability. Having considered this appeal, I am satisfied that all the grounds of appeal have been ably established by the appellant.
24. Consequently, I find that the appeal has merit and the same is allowed. The judgment of the trial court dismissing the appellant’s suit is set aside and substituted with a finding allowing the appellant’s case before the trial court with the result that judgment be and is hereby entered for the appellant (plaintiff) against the respondent (defendant) in the sum of KShs 590,197/= plus interest at court rates.
25. The appellant also gets the costs of the appeal and the costs before the trial court.
26. Orders accordingly.
ANDAYI W. F.
JUDGE
Written, dated , signed and d elivered on the Virtual platform, Teams this 15 th day of June 2026.
Posted in the CTS:
Juma (Ms) for the appellant appearing earlier on the virtual platform.
N/A for the Respondent.
Hadijah h/b for Ummu: Court assistant
ANDAYI W. F.
JUDGE
kwale hC CA No. E019/202511/interest and costs in declratory suit-who pays