(Being an Appeal from the Ruling of Honourable Meresia Opondo (S.P.M) delivered on 6th June 2024 at the Chief Magistrate’s court Kiambu in C.M.C.C/E043 of 2024)
1. The learned trial Senior Principal Magistrate, considered the Notice of Motion Application dated 15.3.2024 in CMCC E043 of 2024 and delivered her Ruling in favour of the Respondent and against the Appellant, and ordered that;
a) The statement of defence dated 22.02.2024 is struck off;
b) The defendant bears the costs of the application and the suit;
c) Right of appeal 14 days
2. Aggrieved by the said Ruling, the appellant filed a memorandum of appeal dated 25.09.2024 through Ochieng Omolo & Co Advocates. The appellant stated that the trial Court erred in law and fact and misdirected itself as follows:
a) By holding that the mandatory statutory notice under Cap 405 Laws of Kenya was served upon the Defendant/Appellant by the Plaintiff/Respondent when there was absolutely no evidence of service.
b) By failing to appreciate that the mere exhibition of a purported mandatory statutory notice under Cap 405 Laws of Kenya does not amount to evidence of service of the same.
c) By failing to appreciate that the Plaintiff’s/Respondent’s affidavit did not amount to proof of the contentious facts.
d) By shifting the burden of proof from the Plaintiff/Respondent to the Defendant/Appellant.
e) By misapprehending the law on striking out a statement of defence and thereby came to the wrong conclusion on the same.
f) By awarding costs of the suit to the Plaintiff/Respondent when the Defendant/Appellant had not been served with any demand letter before the commencement of the suit.
3. The Appellant prayed for orders:
a) That this appeal be allowed with costs.
b) That the Ruling delivered on 06.06.2024 by Hon M. Opondo (S.P.M) in C.M.C.C No E043 of 2024 be set aside.
c) That C.M.C.C No. E043 of 2024 proceeds to full hearing on merits.
4. The background of the suit is that the Respondent filed his Plaint on 15.09.2022 in Kiambu Civil Case No 355 of 2022. His case was as follows;
a) The Respondent claimed for general damages and special damages as a result of injuries he sustained from an accident that occurred on 29.07.2022 involving Motor Vehicle registration No KCN 784M.
b) On 04.09.2023 judgment was delivered by the Court for general and special damages in favour of the Respondent as against the Appellant’s insured, where the Respondent was awarded Ksh.176,729.97/=.
c) It is the Respondent’s contention that despite having received statutory notices to defend its insured, the Appellant refused and/or neglected to pay the decretal amount as per the provisions of Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya.
d) The Respondent then filed a declaratory suit against the Appellant in Kiambu Civil Suit No. E043 of 2024 for a declaration that the Appellant is to pay the decretal amount emanating from Kiambu Civil Suit No 355 of 2022.
5. The Appellant filed a Statement of Defence dated 22.02.2024 where it:
a) denied all the allegations made in the plaint and maintained that it was not informed nor served with the pleadings in Kiambu Civil Case No 356 of 2022.
b) denied having been served with statutory notice under Cap 405 Laws of Kenya
6. The Respondent then filed a Notice of Motion application dated 15.03.2024 seeking the following orders;
a) That the Honourable court be pleased to strike out the statement of defence dated 22.02.2024 and judgment be entered as prayed for in the plaint.
b) The defendant be condemned to pay the costs of the application and the suit in any event.
7. In reply, the Appellant filed a Replying Affidavit, sworn by Jackson Karani on 5.04.2024 where he urged as follows;
a) That the statement of defence raised triable issues and it would only be just and fair that the matter be heard on merits and determined accordingly.
b) That the Respondent had to prove his case and more specifically, that there existed a contract between the appellant and the defendant in the primary suit and also that indeed the Appellant was served with the requisite statutory notice under Cap 405 Laws of Kenya.
c) The Appellant maintained that it was never served with the alleged statutory notice and it was imperative that the Respondent proved that the statutory notice was served upon the Appellant and that could only be done through viva voce evidence by the person who effected the alleged service.
8. The Appellant’s Counsel filed submissions on the appeal and drew this court's attention to the fact that the judgment in the primary suit was an ex-parte judgment. The Appellant’s Counsel states that the primary suit was undefended and it is not possible to ascertain whether the defendant in the primary suit was duly served.
9. Further, in paragraph 7 of the plaint, it is pleaded as follows:
“7. Despite the defendant having received statutory notices to defend its insured, the defendant has refused and neglected to pay the decretal amount as per the provisions of insurance (Motor vehicle third party risks) Act Cap 405 Laws of Kenya.
10. The Appellant submits that there is no mention of the date of the alleged service and by whom it was done. It further states that the Learned trial magistrate erred in law and in fact in holding, presumably, that the document headed statutory notice was served upon and received by the Appellant when there was no evidence of service.
11. The Appellant submitted that failure to serve the requisite statutory notice under section 10(2) is fatal to a claim in a declaratory suit. Section 10(2) provides;
“No sum shall be payable by an insurer under the foregoing provisions of this section;
(a) in respect of any judgment, unless before or within fourteen days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings; or
(b) in respect of any judgment, so long as execution thereon is stayed pending an appeal; or
(c) in connection with any liability if, before the happening of the event which was the cause of the death or bodily injury giving rise to the liability, the policy was cancelled by mutual consent or by virtue of any provision contained therein, and
either;
(i) before the happening of the event the certificate was surrendered to the insurer, or the person to whom the certificate was issued made a statutory declaration stating that the certificate had been lost or destroyed; or
(ii) after the happening of the event, but before the expiration of a period of fourteen days from the taking effect of the cancellation of the policy, the certificate was surrendered to the insurer, or the person to whom the certificate was issued made such a statutory declaration as aforesaid; or
(iii) either before or after the happening of the event, but within a period of twenty-eight days from the taking effect of the cancellation of the policy, the insurer has notified the Registrar of Motor Vehicles and the Commissioner of Police in writing of the failure to surrender the certificate.”
12. To buttress its submissions, the Appellant relied on the case of Kenya Alliance Insurance Co. Ltd Vs Thomas Ochieng Apopa (Suing as Administrator of the Estate of Pamela Agola Apopa (Deceased) (2020) E KLR, where the court stated:
“...The above statutory provision (section 10 (2) of the Insurance (Motor Vehicle Third Party Risks) is clear that before the insurance company can pay or be obligated to pay the judgment sum decreed in the primary suit, the insurance company must have had notice of the bringing or institution of the proceedings or suit, before such suit was filed or 14 days after such suit was filed. There is however, no limit as to what time the notice should be given before the commencement or institution of the suit. It follows that what is of essence is that there must be evidence that the insurance company had such notice of the intended proceedings any time before the suit was instituted.”
13. Additionally, the Appellant sought refuge in the case of UAP Insurance Co. Ltd Vs Patrick Charo Chiro (2021) eKLR, where it was held that:
“... for liability to accrue under section 10 of the Insurance (Motor Vehicle Third Party Risks) act, there is a 4-fold test to be met. Firstly, that the motor vehicle in question was insured by the appellant; secondly, that the respondent has a judgment in his favour against the insured; Thirdly, that statutory notice was issued to the insurer either at least 14 days before the filing of the suit wherein judgment has been obtained or within 30 days of filing the suit where judgment has been obtained and finally the respondent was a person covered by the insurance policy.”
14. It was the Appellant’s contention that the Learned trial magistrate imported her own evidence in the case in respect to the issue of service of the statutory notice.
15. The Respondent’s Counsel filed submissions opposing the appeal and stated that the Appellant failed to include the original order appealed from in the record of appeal, supplementary record of appeal and the further supplementary record of appeal.
16. It is argued that the Appellant never sought leave to file any further supplementary record thereafter to include the decree or order which is a primary document that must be in the record of appeal.
17. The Respondent maintains that the decree embodies the trial court's decision. If it is not included, then the Court will be at a loss in determining what the trial court determined. An appeal can only be against a decree or an order and not against a judgment or ruling.
18. For this reason, the Respondent maintains that the entire appeal is fatally defective and should be struck out in limine with costs to the Respondent.
19. The Respondent relied on the case of Salama Beach Hotel Limited & 4 others v Kenyariri & Associates Advocates & 4 others [2016] eKLR, where the Court of Appeal held as follows;
“In this case, two main omissions are readily noticeable. The first glaring defect is with regard to the memorandum of appeal which suggests that the appeal is ‘against the Order of the High Court of Kenya at Malindi (Honourable Justice Chitembwe) dated 26th June 2015 in High Court Civil Case No. 20 of 2015’.) However, a cursory perusal of the record of appeal shows that the order impugned in the memorandum of appeal is indeed missing in the record. The same appears not to have been extracted and included in the record. The consequences of this can be found in the decision of Chege v Suleiman [1988] eKLR, which echoed the traditional position that failure to extract an impugned order renders the appeal fatally defective, with the only remedy being to strike it out. Counsel for the respondents has invited this Court to exercise leniency and discretion and find that the documents were proper, having been perused and approved by this Court’s Deputy Registrar before they wound up before us. With respect, no legal provision allows for the exercise of this Court’s discretion in such a manner. Besides, the fate of an appeal anchored on a non-extracted order has not changed, not even with the advent of the new liberal approach afforded by the overriding objective and the Constitution; which encourages dispensation of justice without undue regard to procedural technicalities. As held in Floris Pierro & another v Giancarlo Falasconi (as the administrator of the estate of Santuzza Billioti alias Mei Santuzza) [2014] eKLR; an appeal that fails to include the extracted order and or decree appealed from is incurable and the only recourse available is to strike it out, as the order or decree appealed from is a primary document in terms of Rule 87(1)(h) of this Court’s Rules and must form part and parcel of the record of appeal. In that case, the Court delivered itself thus:-
“...The order embodies the Court's decision. If it is not included, the Court of Appeal will be at a loss in determining what the High Court determined. It cannot be the business of this Court to tooth-comb the judgment or ruling so as to decipher the decision of the court below. That decision must be embodied in the order and or decree. Accordingly, failure to include the court order or decree would render the record of the appeal to be fatally defective and liable to be struck out. In any event an appeal can only be against a decree or an order and not against a judgment or ruling. In the premises, we take the view that it would serve the overriding objective to strike out the appeal suo motu. Indeed, as indicated by this Court in the case of Mohamed Aden Abdi v. Abdi Nuru Omar & 2 others [2007] eKLR; even in the face of a time barred application which is accordingly dismissed, the court nonetheless retains the inherent power to strike out the appeal where a record of appeal fails to contain one or more of the primary documents. In this case, no attempt was ever made under Rule 88 of the rules to either file a supplementary record of appeal availing the missing impugned order or to seek leave to do so. In the premises, the client’s application and appeal are anchored on quicksand. They are accordingly struck out”
20. The Respondent maintains that the Appellant had notice of the primary suit as evidenced by the receipt of the statutory notice and that the policy of insurance has never been cancelled and or repudiated to date, despite the Appellant having been notified by the Respondent’s Counsel of the accident subject of the primary suit.
21. The Respondent states that the Appellant in its defence never denied being the insurer of the motor vehicle registration number KCN 784M.
22. The Respondent maintains that the trial court rightly determined that the defence filed did not raise any triable issues for consideration in a full trial.
23. The Respondent argues that for an insurer to avoid satisfying a judgment arising from a valid policy, they should have obtained a declaratory order which the Appellant never obtained.
24. In support of this position, the respondent sought to rely on the case of BlueShield Insurance Co. Ltd v Raymond Buuri M'rimberia [1998] eKLR where the Court of Appeal held as follows;
“Although the appellant did not plead in its defence in the enforcement suit, that it had already sued the insured in H.C.C.C. No.2976 of 1986 for a declaration that it was entitled to avoid the policy and that the said suit was still pending, Mrs. Kiarie did say that in her replying affidavit hereinabove mentioned. Can that allegation in itself be a triable issue". We think not: Under s.10(4) the liability of the insurer to satisfy the judgment under s.10(1) is excluded only if, not only that the insurer had commenced an action within the time scale prescribed thereunder, but also that it has obtained a declaration that it is entitled to avoid its liability under the insurance policy. No declaration has been so far obtained although the declaratory suit was filed some 12 years ago by the appellant. Mrs. Kiarie's vague explanation for this delay “although the suit has been fixed for hearing a few times it has never taken off" smacks of gross lack of diligence on the part of the appellant in prosecuting the declaratory suit. Moreover, there is no evidence that a mandatory notice as envisaged by the proviso to s.10(4) had been ever given. The effect of that omission is that even if the appellant has obtained the said declaration which it has not so far, it may still not be entitled to the benefit of that declaration as against the respondent. For these reasons we hold that the trial Judge was fully justified in striking out the appellant's defence and entering judgment against it, as he did. We do not find any merit in the appeal and hereby dismiss it with costs.”
25. The Respondent also relied on the case of Invesco Assurance Co. Ltd v Annette Wataka [2016] eKLR where the learned Judge held as follows;
“As the appellant had not pleaded in its defence that it had obtained orders staying execution in the primary suit or that it had obtained a declaratory judgment as contemplated under Section 10 (4) of Cap 405 and considering what I have stated earlier regarding the allegations of fraud and denial of service of the statutory notice, it is my finding that the appellant’s defence did not raise a single triable issue that would have merited a full trial. Given the foregoing, it is my considered view that the learned trial magistrate correctly exercised her discretion in striking out the appellant’s defence as there was nothing in the defence to take to full trial. Sustaining such a defence would only have served the purpose of prejudicing the respondent by unduly delaying the fair trial of the suit which would have violated the overriding objective as stipulated in Section 1 A and 1 B of the Civil Procedure Act and Article 159 of the Constitution which advocates for the just and expeditious disposal of cases.”
26. The Respondent maintains that the Appellant is obligated under the law to satisfy the said decretal amount as awarded against their insured. The Appellant neither appealed, applied for stay of execution of the decree and judgment and/or file any evidence of any repudiation of the said policy which was valid at the time of the subject accident as evidenced from the police abstract filed alongside the claim.
27. The Respondent submitted that there is no evidence to the contrary that was adduced by the Appellant in the Replying Affidavit and therefore, in the circumstances, the Appellant was legally bound and obligated to satisfy the judgment and decree that arose from a third-party claim under the said policy as per Section 10 (2) of Insurance (Motor Vehicles Third Party Risks) Act Cap 405 Laws of Kenya.
28. Further, the Respondent submitted that the defence as filed by the Appellant consisted of mere denials and they did not raise any triable issues for the Respondent to be subjected to a full hearing.
Analysis and Determination
29. This is a first appeal and the role of the Court is to revaluate the evidence and arrive at conclusions one way or the other, bearing in mind it did not by itself take the evidence. The decision of the trial Court ought not be disturbed unless shown it misdirected itself and thereby arrived at conclusions that were not just or correct.
Preliminary Issue: Whether the Appeal is Fatally Defective
30. The Respondent raises a preliminary objection that the appeal is fatally defective for failure to include the extracted decree or order in the record of appeal, relying principally on Salama Beach Hotel Limited & 4 others v Kenyariri & Associates Advocates & 4 others [2016] eKLR.
31. The Court has considered this objection carefully. The authorities cited by the Respondent, including Salama Beach Hotel, arise from and are expressly anchored on Rule 87(1)(h) of the Court of Appeal Rules, which prescribes the mandatory contents of a record of appeal before the Court of Appeal. Those rules do not govern the present appeal. Appeals from subordinate courts to the High Court are governed by Order 42 of the Civil Procedure Rules, 2010, which does not identically replicate the Court of Appeal's strict requirement for an extracted decree as a primary document in the same peremptory terms.
32. Furthermore, the overriding objective under Sections 1A and 1B of the Civil Procedure Act enjoins the Court to administer justice without undue regard to procedural technicalities. The ruling of the trial court dated 06.06.2024, the memorandum of appeal, and the pleadings are all before this Court. This Court is therefore not at a loss in determining what the trial Court decided. The decision under appeal is discernible and the preliminary objection, while noted, does not render this appeal fatally defective in the circumstances. The preliminary objection is accordingly dismissed.
Substantive Issue I: Whether the Trial Court erred in finding that the Statutory Notice under Cap 405 was duly served
33. The central and determinative question in this appeal is whether the Respondent discharged the burden of proving that the statutory notice required under Section 10(2) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 was duly served upon the Appellant.
34. Section 10(2)(a) of Cap 405 is clear: ‘no sum shall be payable by an insurer in respect of any judgment unless, before or within fourteen days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of those proceedings. Service of this notice is therefore a condition precedent to the liability of an insurer in a declaratory suit of this nature.’
35. As correctly articulated in Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa [2020] eKLR and UAP Insurance Co. Ltd v Patrick Charo Chiro [2021] eKLR, proof that statutory notice was served upon the insurer is one of the essential limbs that a plaintiff must establish before an insurer can be compelled to satisfy a judgment under Cap 405. These are not mere technical requirements; they go to the root of the insurer's liability.
36. Turning to the record before the trial Court, the Respondent's supporting affidavit exhibited a document headed "statutory notice." However, the affidavit was conspicuously silent on the manner, date, and agent of service of that notice. There is no affidavit of service sworn by the person who effected delivery of the notice; there is no registered postal slip, courier receipt, or any other documentary corroboration that the notice was in fact received by or brought to the attention of the Appellant. The mere exhibition of the notice document establishes its existence but does not, without more, establish its delivery to the intended recipient.
37. The Appellant in its replying affidavit sworn by Jackson Karani on 05.04.2024 categorically denied ever receiving the statutory notice and specifically contended that proof of service could only be properly adduced through the viva voce evidence of the person who purportedly effected service. This denial was not rebutted by any further affidavit or supplementary evidence by the Respondent.
38. This Court finds that the learned trial magistrate fell into error by inferring or presuming service of the statutory notice from the bare exhibition of the notice itself. That inference was not supported by the evidence on record. In so doing, the trial court effectively shifted the burden of proof onto the Appellant to disprove service, a burden that properly lay throughout on the Respondent as the party asserting that service had been effected.
Substantive Issue II: Whether the Defence Raised Triable Issues
39. The threshold for striking out a defence is well established. A defence ought to be struck out only where it raises no reasonable defence, is scandalous, frivolous, or vexatious, or where it is clear that allowing it to stand would prejudice or delay the fair trial of the action. The Court must be satisfied that there is no triable issue before it exercises this drastic remedy.
40. The Appellant's statement of defence raised the following specific denials:
a) That it was never served with the pleadings in the primary suit (Kiambu Civil Case No. 355 of 2022);
b) That it was never served with any statutory notice under Cap 405; and
c) That it was therefore not legally obligated to satisfy the decree arising from a suit of which it had no notice.
41. The Respondent relies on BlueShield Insurance Co. Ltd v Raymond Buuri M'rimberia [1998] eKLR and Invesco Assurance Co. Ltd v Annette Wataka [2016] eKLR. However, these cases are distinguishable. In BlueShield, the insurer had filed a declaratory suit under Section 10(4) of Cap 405 seeking to avoid the policy but had obtained no declaration, and the defence in the enforcement suit was anchored on that incomplete avenue. In Invesco, the court found that the insurer pleaded neither a stay of execution nor a declaratory judgment under s.10(4). In both cases, the deficiency was in the insurer's failure to pursue available statutory remedies to avoid liability.
42. The present case is materially different. The Appellant's defence is not premised on a right to avoid the policy under s.10(4). It is premised squarely on non-service of the statutory notice under s.10(2) , a condition precedent which, if not fulfilled, means liability under Cap 405 never arose in the first place. Whether the statutory notice was in fact served upon the Appellant is a live factual dispute that can only be properly resolved through oral evidence. It is not a matter susceptible to summary determination on affidavits alone where the facts are contested and no affidavit of the process server was placed before the court.
43. It is further noted that the judgment in the primary suit was delivered ex-parte, meaning the Appellant was not a party to and did not participate in those proceedings. The question of whether the Appellant's insured was duly served in that suit remains unverified and adds to the complexity of facts requiring a full hearing.
44. This Court finds that the Appellant's statement of defence raised genuine triable issues, principally the question of service of the statutory notice under Cap 405. The trial court therefore erred in striking out the defence without affording the parties an opportunity to ventilate these issues at a full hearing.
45. The Appellant also challenges the award of costs of the suit on the basis that no demand letter was served before the declaratory suit was instituted. Having found that the matter ought to have proceeded to full hearing, it would be premature to make a final order on costs of the suit at this stage. Those costs shall be in the cause.
46. In the premises, this Court finds that the appeal is merited. Accordingly, the Court makes the following orders:
a) The appeal is hereby allowed.
b) The Ruling delivered on 06.06.2024 by Hon. M. Opondo (S.P.M.) in C.M.C.C. No. E043 of 2024 striking out the statement of defence dated 22.02.2024 is hereby set aside.
c) The statement of defence dated 22.02.2024 is hereby reinstated and C.M.C.C. No. E043 of 2024 is remitted to the trial court for hearing on the merits before a different magistrate.
d) Each party shall bear its own costs of this appeal
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 12TH DAY OF JUNE, 2026, THROUGH THE TEAMS MICROSOFT PLATFORM
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
MR OCHIENG FOR THE APPELLANT
NO APPEARANCE FOR THE RESPONDENT
COURT ASSISTANT : JACKLINE KURUI
1. The learned trial Senior Principal Magistrate, considered the Notice of Motion Application dated 15.3.2024 in CMCC E043 of 2024 and delivered her Ruling in favour of the Respondent and against the Appellant, and ordered that;
a) The statement of defence dated 22.02.2024 is struck off;
b) The defendant bears the costs of the application and the suit;
c) Right of appeal 14 days
2. Aggrieved by the said Ruling, the appellant filed a memorandum of appeal dated 25.09.2024 through Ochieng Omolo & Co Advocates. The appellant stated that the trial Court erred in law and fact and misdirected itself as follows:
a) By holding that the mandatory statutory notice under Cap 405 Laws of Kenya was served upon the Defendant/Appellant by the Plaintiff/Respondent when there was absolutely no evidence of service.
b) By failing to appreciate that the mere exhibition of a purported mandatory statutory notice under Cap 405 Laws of Kenya does not amount to evidence of service of the same.
c) By failing to appreciate that the Plaintiff’s/Respondent’s affidavit did not amount to proof of the contentious facts.
d) By shifting the burden of proof from the Plaintiff/Respondent to the Defendant/Appellant.
e) By misapprehending the law on striking out a statement of defence and thereby came to the wrong conclusion on the same.
f) By awarding costs of the suit to the Plaintiff/Respondent when the Defendant/Appellant had not been served with any demand letter before the commencement of the suit.
3. The Appellant prayed for orders:
a) That this appeal be allowed with costs.
b) That the Ruling delivered on 06.06.2024 by Hon M. Opondo (S.P.M) in C.M.C.C No E043 of 2024 be set aside.
c) That C.M.C.C No. E043 of 2024 proceeds to full hearing on merits.
4. The background of the suit is that the Respondent filed his Plaint on 15.09.2022 in Kiambu Civil Case No 355 of 2022. His case was as follows;
a) The Respondent claimed for general damages and special damages as a result of injuries he sustained from an accident that occurred on 29.07.2022 involving Motor Vehicle registration No KCN 784M.
b) On 04.09.2023 judgment was delivered by the Court for general and special damages in favour of the Respondent as against the Appellant’s insured, where the Respondent was awarded Ksh.176,729.97/=.
c) It is the Respondent’s contention that despite having received statutory notices to defend its insured, the Appellant refused and/or neglected to pay the decretal amount as per the provisions of Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya.
d) The Respondent then filed a declaratory suit against the Appellant in Kiambu Civil Suit No. E043 of 2024 for a declaration that the Appellant is to pay the decretal amount emanating from Kiambu Civil Suit No 355 of 2022.
5. The Appellant filed a Statement of Defence dated 22.02.2024 where it:
a) denied all the allegations made in the plaint and maintained that it was not informed nor served with the pleadings in Kiambu Civil Case No 356 of 2022.
b) denied having been served with statutory notice under Cap 405 Laws of Kenya
6. The Respondent then filed a Notice of Motion application dated 15.03.2024 seeking the following orders;
a) That the Honourable court be pleased to strike out the statement of defence dated 22.02.2024 and judgment be entered as prayed for in the plaint.
b) The defendant be condemned to pay the costs of the application and the suit in any event.
7. In reply, the Appellant filed a Replying Affidavit, sworn by Jackson Karani on 5.04.2024 where he urged as follows;
a) That the statement of defence raised triable issues and it would only be just and fair that the matter be heard on merits and determined accordingly.
b) That the Respondent had to prove his case and more specifically, that there existed a contract between the appellant and the defendant in the primary suit and also that indeed the Appellant was served with the requisite statutory notice under Cap 405 Laws of Kenya.
c) The Appellant maintained that it was never served with the alleged statutory notice and it was imperative that the Respondent proved that the statutory notice was served upon the Appellant and that could only be done through viva voce evidence by the person who effected the alleged service.
8. The Appellant’s Counsel filed submissions on the appeal and drew this court's attention to the fact that the judgment in the primary suit was an ex-parte judgment. The Appellant’s Counsel states that the primary suit was undefended and it is not possible to ascertain whether the defendant in the primary suit was duly served.
9. Further, in paragraph 7 of the plaint, it is pleaded as follows:
“7. Despite the defendant having received statutory notices to defend its insured, the defendant has refused and neglected to pay the decretal amount as per the provisions of insurance (Motor vehicle third party risks) Act Cap 405 Laws of Kenya.
10. The Appellant submits that there is no mention of the date of the alleged service and by whom it was done. It further states that the Learned trial magistrate erred in law and in fact in holding, presumably, that the document headed statutory notice was served upon and received by the Appellant when there was no evidence of service.
11. The Appellant submitted that failure to serve the requisite statutory notice under section 10(2) is fatal to a claim in a declaratory suit. Section 10(2) provides;
“No sum shall be payable by an insurer under the foregoing provisions of this section;
(a) in respect of any judgment, unless before or within fourteen days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings; or
(b) in respect of any judgment, so long as execution thereon is stayed pending an appeal; or
(c) in connection with any liability if, before the happening of the event which was the cause of the death or bodily injury giving rise to the liability, the policy was cancelled by mutual consent or by virtue of any provision contained therein, and
either;
(i) before the happening of the event the certificate was surrendered to the insurer, or the person to whom the certificate was issued made a statutory declaration stating that the certificate had been lost or destroyed; or
(ii) after the happening of the event, but before the expiration of a period of fourteen days from the taking effect of the cancellation of the policy, the certificate was surrendered to the insurer, or the person to whom the certificate was issued made such a statutory declaration as aforesaid; or
(iii) either before or after the happening of the event, but within a period of twenty-eight days from the taking effect of the cancellation of the policy, the insurer has notified the Registrar of Motor Vehicles and the Commissioner of Police in writing of the failure to surrender the certificate.”
12. To buttress its submissions, the Appellant relied on the case of Kenya Alliance Insurance Co. Ltd Vs Thomas Ochieng Apopa (Suing as Administrator of the Estate of Pamela Agola Apopa (Deceased) (2020) E KLR, where the court stated:
“...The above statutory provision (section 10 (2) of the Insurance (Motor Vehicle Third Party Risks) is clear that before the insurance company can pay or be obligated to pay the judgment sum decreed in the primary suit, the insurance company must have had notice of the bringing or institution of the proceedings or suit, before such suit was filed or 14 days after such suit was filed. There is however, no limit as to what time the notice should be given before the commencement or institution of the suit. It follows that what is of essence is that there must be evidence that the insurance company had such notice of the intended proceedings any time before the suit was instituted.”
13. Additionally, the Appellant sought refuge in the case of UAP Insurance Co. Ltd Vs Patrick Charo Chiro (2021) eKLR, where it was held that:
“... for liability to accrue under section 10 of the Insurance (Motor Vehicle Third Party Risks) act, there is a 4-fold test to be met. Firstly, that the motor vehicle in question was insured by the appellant; secondly, that the respondent has a judgment in his favour against the insured; Thirdly, that statutory notice was issued to the insurer either at least 14 days before the filing of the suit wherein judgment has been obtained or within 30 days of filing the suit where judgment has been obtained and finally the respondent was a person covered by the insurance policy.”
14. It was the Appellant’s contention that the Learned trial magistrate imported her own evidence in the case in respect to the issue of service of the statutory notice.
15. The Respondent’s Counsel filed submissions opposing the appeal and stated that the Appellant failed to include the original order appealed from in the record of appeal, supplementary record of appeal and the further supplementary record of appeal.
16. It is argued that the Appellant never sought leave to file any further supplementary record thereafter to include the decree or order which is a primary document that must be in the record of appeal.
17. The Respondent maintains that the decree embodies the trial court's decision. If it is not included, then the Court will be at a loss in determining what the trial court determined. An appeal can only be against a decree or an order and not against a judgment or ruling.
18. For this reason, the Respondent maintains that the entire appeal is fatally defective and should be struck out in limine with costs to the Respondent.
19. The Respondent relied on the case of Salama Beach Hotel Limited & 4 others v Kenyariri & Associates Advocates & 4 others [2016] eKLR, where the Court of Appeal held as follows;
“In this case, two main omissions are readily noticeable. The first glaring defect is with regard to the memorandum of appeal which suggests that the appeal is ‘against the Order of the High Court of Kenya at Malindi (Honourable Justice Chitembwe) dated 26th June 2015 in High Court Civil Case No. 20 of 2015’.) However, a cursory perusal of the record of appeal shows that the order impugned in the memorandum of appeal is indeed missing in the record. The same appears not to have been extracted and included in the record. The consequences of this can be found in the decision of Chege v Suleiman [1988] eKLR, which echoed the traditional position that failure to extract an impugned order renders the appeal fatally defective, with the only remedy being to strike it out. Counsel for the respondents has invited this Court to exercise leniency and discretion and find that the documents were proper, having been perused and approved by this Court’s Deputy Registrar before they wound up before us. With respect, no legal provision allows for the exercise of this Court’s discretion in such a manner. Besides, the fate of an appeal anchored on a non-extracted order has not changed, not even with the advent of the new liberal approach afforded by the overriding objective and the Constitution; which encourages dispensation of justice without undue regard to procedural technicalities. As held in Floris Pierro & another v Giancarlo Falasconi (as the administrator of the estate of Santuzza Billioti alias Mei Santuzza) [2014] eKLR; an appeal that fails to include the extracted order and or decree appealed from is incurable and the only recourse available is to strike it out, as the order or decree appealed from is a primary document in terms of Rule 87(1)(h) of this Court’s Rules and must form part and parcel of the record of appeal. In that case, the Court delivered itself thus:-
“...The order embodies the Court's decision. If it is not included, the Court of Appeal will be at a loss in determining what the High Court determined. It cannot be the business of this Court to tooth-comb the judgment or ruling so as to decipher the decision of the court below. That decision must be embodied in the order and or decree. Accordingly, failure to include the court order or decree would render the record of the appeal to be fatally defective and liable to be struck out. In any event an appeal can only be against a decree or an order and not against a judgment or ruling. In the premises, we take the view that it would serve the overriding objective to strike out the appeal suo motu. Indeed, as indicated by this Court in the case of Mohamed Aden Abdi v. Abdi Nuru Omar & 2 others [2007] eKLR; even in the face of a time barred application which is accordingly dismissed, the court nonetheless retains the inherent power to strike out the appeal where a record of appeal fails to contain one or more of the primary documents. In this case, no attempt was ever made under Rule 88 of the rules to either file a supplementary record of appeal availing the missing impugned order or to seek leave to do so. In the premises, the client’s application and appeal are anchored on quicksand. They are accordingly struck out”
20. The Respondent maintains that the Appellant had notice of the primary suit as evidenced by the receipt of the statutory notice and that the policy of insurance has never been cancelled and or repudiated to date, despite the Appellant having been notified by the Respondent’s Counsel of the accident subject of the primary suit.
21. The Respondent states that the Appellant in its defence never denied being the insurer of the motor vehicle registration number KCN 784M.
22. The Respondent maintains that the trial court rightly determined that the defence filed did not raise any triable issues for consideration in a full trial.
23. The Respondent argues that for an insurer to avoid satisfying a judgment arising from a valid policy, they should have obtained a declaratory order which the Appellant never obtained.
24. In support of this position, the respondent sought to rely on the case of BlueShield Insurance Co. Ltd v Raymond Buuri M'rimberia [1998] eKLR where the Court of Appeal held as follows;
“Although the appellant did not plead in its defence in the enforcement suit, that it had already sued the insured in H.C.C.C. No.2976 of 1986 for a declaration that it was entitled to avoid the policy and that the said suit was still pending, Mrs. Kiarie did say that in her replying affidavit hereinabove mentioned. Can that allegation in itself be a triable issue". We think not: Under s.10(4) the liability of the insurer to satisfy the judgment under s.10(1) is excluded only if, not only that the insurer had commenced an action within the time scale prescribed thereunder, but also that it has obtained a declaration that it is entitled to avoid its liability under the insurance policy. No declaration has been so far obtained although the declaratory suit was filed some 12 years ago by the appellant. Mrs. Kiarie's vague explanation for this delay “although the suit has been fixed for hearing a few times it has never taken off" smacks of gross lack of diligence on the part of the appellant in prosecuting the declaratory suit. Moreover, there is no evidence that a mandatory notice as envisaged by the proviso to s.10(4) had been ever given. The effect of that omission is that even if the appellant has obtained the said declaration which it has not so far, it may still not be entitled to the benefit of that declaration as against the respondent. For these reasons we hold that the trial Judge was fully justified in striking out the appellant's defence and entering judgment against it, as he did. We do not find any merit in the appeal and hereby dismiss it with costs.”
25. The Respondent also relied on the case of Invesco Assurance Co. Ltd v Annette Wataka [2016] eKLR where the learned Judge held as follows;
“As the appellant had not pleaded in its defence that it had obtained orders staying execution in the primary suit or that it had obtained a declaratory judgment as contemplated under Section 10 (4) of Cap 405 and considering what I have stated earlier regarding the allegations of fraud and denial of service of the statutory notice, it is my finding that the appellant’s defence did not raise a single triable issue that would have merited a full trial. Given the foregoing, it is my considered view that the learned trial magistrate correctly exercised her discretion in striking out the appellant’s defence as there was nothing in the defence to take to full trial. Sustaining such a defence would only have served the purpose of prejudicing the respondent by unduly delaying the fair trial of the suit which would have violated the overriding objective as stipulated in Section 1 A and 1 B of the Civil Procedure Act and Article 159 of the Constitution which advocates for the just and expeditious disposal of cases.”
26. The Respondent maintains that the Appellant is obligated under the law to satisfy the said decretal amount as awarded against their insured. The Appellant neither appealed, applied for stay of execution of the decree and judgment and/or file any evidence of any repudiation of the said policy which was valid at the time of the subject accident as evidenced from the police abstract filed alongside the claim.
27. The Respondent submitted that there is no evidence to the contrary that was adduced by the Appellant in the Replying Affidavit and therefore, in the circumstances, the Appellant was legally bound and obligated to satisfy the judgment and decree that arose from a third-party claim under the said policy as per Section 10 (2) of Insurance (Motor Vehicles Third Party Risks) Act Cap 405 Laws of Kenya.
28. Further, the Respondent submitted that the defence as filed by the Appellant consisted of mere denials and they did not raise any triable issues for the Respondent to be subjected to a full hearing.
Analysis and Determination
29. This is a first appeal and the role of the Court is to revaluate the evidence and arrive at conclusions one way or the other, bearing in mind it did not by itself take the evidence. The decision of the trial Court ought not be disturbed unless shown it misdirected itself and thereby arrived at conclusions that were not just or correct.
Preliminary Issue: Whether the Appeal is Fatally Defective
30. The Respondent raises a preliminary objection that the appeal is fatally defective for failure to include the extracted decree or order in the record of appeal, relying principally on Salama Beach Hotel Limited & 4 others v Kenyariri & Associates Advocates & 4 others [2016] eKLR.
31. The Court has considered this objection carefully. The authorities cited by the Respondent, including Salama Beach Hotel, arise from and are expressly anchored on Rule 87(1)(h) of the Court of Appeal Rules, which prescribes the mandatory contents of a record of appeal before the Court of Appeal. Those rules do not govern the present appeal. Appeals from subordinate courts to the High Court are governed by Order 42 of the Civil Procedure Rules, 2010, which does not identically replicate the Court of Appeal's strict requirement for an extracted decree as a primary document in the same peremptory terms.
32. Furthermore, the overriding objective under Sections 1A and 1B of the Civil Procedure Act enjoins the Court to administer justice without undue regard to procedural technicalities. The ruling of the trial court dated 06.06.2024, the memorandum of appeal, and the pleadings are all before this Court. This Court is therefore not at a loss in determining what the trial Court decided. The decision under appeal is discernible and the preliminary objection, while noted, does not render this appeal fatally defective in the circumstances. The preliminary objection is accordingly dismissed.
Substantive Issue I: Whether the Trial Court erred in finding that the Statutory Notice under Cap 405 was duly served
33. The central and determinative question in this appeal is whether the Respondent discharged the burden of proving that the statutory notice required under Section 10(2) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 was duly served upon the Appellant.
34. Section 10(2)(a) of Cap 405 is clear: ‘no sum shall be payable by an insurer in respect of any judgment unless, before or within fourteen days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of those proceedings. Service of this notice is therefore a condition precedent to the liability of an insurer in a declaratory suit of this nature.’
35. As correctly articulated in Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa [2020] eKLR and UAP Insurance Co. Ltd v Patrick Charo Chiro [2021] eKLR, proof that statutory notice was served upon the insurer is one of the essential limbs that a plaintiff must establish before an insurer can be compelled to satisfy a judgment under Cap 405. These are not mere technical requirements; they go to the root of the insurer's liability.
36. Turning to the record before the trial Court, the Respondent's supporting affidavit exhibited a document headed "statutory notice." However, the affidavit was conspicuously silent on the manner, date, and agent of service of that notice. There is no affidavit of service sworn by the person who effected delivery of the notice; there is no registered postal slip, courier receipt, or any other documentary corroboration that the notice was in fact received by or brought to the attention of the Appellant. The mere exhibition of the notice document establishes its existence but does not, without more, establish its delivery to the intended recipient.
37. The Appellant in its replying affidavit sworn by Jackson Karani on 05.04.2024 categorically denied ever receiving the statutory notice and specifically contended that proof of service could only be properly adduced through the viva voce evidence of the person who purportedly effected service. This denial was not rebutted by any further affidavit or supplementary evidence by the Respondent.
38. This Court finds that the learned trial magistrate fell into error by inferring or presuming service of the statutory notice from the bare exhibition of the notice itself. That inference was not supported by the evidence on record. In so doing, the trial court effectively shifted the burden of proof onto the Appellant to disprove service, a burden that properly lay throughout on the Respondent as the party asserting that service had been effected.
Substantive Issue II: Whether the Defence Raised Triable Issues
39. The threshold for striking out a defence is well established. A defence ought to be struck out only where it raises no reasonable defence, is scandalous, frivolous, or vexatious, or where it is clear that allowing it to stand would prejudice or delay the fair trial of the action. The Court must be satisfied that there is no triable issue before it exercises this drastic remedy.
40. The Appellant's statement of defence raised the following specific denials:
a) That it was never served with the pleadings in the primary suit (Kiambu Civil Case No. 355 of 2022);
b) That it was never served with any statutory notice under Cap 405; and
c) That it was therefore not legally obligated to satisfy the decree arising from a suit of which it had no notice.
41. The Respondent relies on BlueShield Insurance Co. Ltd v Raymond Buuri M'rimberia [1998] eKLR and Invesco Assurance Co. Ltd v Annette Wataka [2016] eKLR. However, these cases are distinguishable. In BlueShield, the insurer had filed a declaratory suit under Section 10(4) of Cap 405 seeking to avoid the policy but had obtained no declaration, and the defence in the enforcement suit was anchored on that incomplete avenue. In Invesco, the court found that the insurer pleaded neither a stay of execution nor a declaratory judgment under s.10(4). In both cases, the deficiency was in the insurer's failure to pursue available statutory remedies to avoid liability.
42. The present case is materially different. The Appellant's defence is not premised on a right to avoid the policy under s.10(4). It is premised squarely on non-service of the statutory notice under s.10(2) , a condition precedent which, if not fulfilled, means liability under Cap 405 never arose in the first place. Whether the statutory notice was in fact served upon the Appellant is a live factual dispute that can only be properly resolved through oral evidence. It is not a matter susceptible to summary determination on affidavits alone where the facts are contested and no affidavit of the process server was placed before the court.
43. It is further noted that the judgment in the primary suit was delivered ex-parte, meaning the Appellant was not a party to and did not participate in those proceedings. The question of whether the Appellant's insured was duly served in that suit remains unverified and adds to the complexity of facts requiring a full hearing.
44. This Court finds that the Appellant's statement of defence raised genuine triable issues, principally the question of service of the statutory notice under Cap 405. The trial court therefore erred in striking out the defence without affording the parties an opportunity to ventilate these issues at a full hearing.
45. The Appellant also challenges the award of costs of the suit on the basis that no demand letter was served before the declaratory suit was instituted. Having found that the matter ought to have proceeded to full hearing, it would be premature to make a final order on costs of the suit at this stage. Those costs shall be in the cause.
46. In the premises, this Court finds that the appeal is merited. Accordingly, the Court makes the following orders:
a) The appeal is hereby allowed.
b) The Ruling delivered on 06.06.2024 by Hon. M. Opondo (S.P.M.) in C.M.C.C. No. E043 of 2024 striking out the statement of defence dated 22.02.2024 is hereby set aside.
c) The statement of defence dated 22.02.2024 is hereby reinstated and C.M.C.C. No. E043 of 2024 is remitted to the trial court for hearing on the merits before a different magistrate.
d) Each party shall bear its own costs of this appeal
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 12TH DAY OF JUNE, 2026, THROUGH THE TEAMS MICROSOFT PLATFORM
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
MR OCHIENG FOR THE APPELLANT
NO APPEARANCE FOR THE RESPONDENT
COURT ASSISTANT : JACKLINE KURUI