' Background
The Appellant herein was the Plaintiff before the trial court where he filed a declaratory suit against the Respondent seeking, inter alia , a declaration that the Respondent, as insurer of motor vehicle Reg. No. KAY 153 X owned by Franklin Kipronoh Ngenoh , was bound to satisfy the decretal sum awarded in Keroka PMCC No. 75 of 2018.
In a decision rendered by Hon. E.K. Nyutu, Chief Magistrate, in Keroka CMCC No. 147 of 2023 on 26.11.2024, the trial court dismissed the claim with costs, holding that the Appellant had not proved his his case to the required standard. Aggrieved by the trial court’s verdict, the Appellant lodged this appeal.
The appeal was canvassed by way of written submissions which I have considered.
The Appellant’s Case
The Appellant faulted the trial court for dismissing his suit despite overwhelming evidence proving the Respondent’s contractual obligation under the policy number HQS/0800/053050/2015. He relied on police abstract (PEXBT 3), statutory notices, his oral testimony (PW1) and the testimony of PW2 (a police officer) who confirmed that the Respondent was indeed the insurer of the suit motor vehicle as at the date of the accident on 20 th November 2016.
The Appellant contended that the trial court wrongly shifted the burden of proof by requiring him, a third-party victim, to produce the original insurance certificate or contract, which was not within his custody. He argued that the correct legal position is that production of a police abstract is sufficient proof of insurance coverage unless expressly rebutted.
The Appellant cited Section 78 of the Civil Procedure Act and urged this Court, as a first appellate court to re-evaluate and re-analyse the evidence and reach its own independent conclusion.
The Appellant cited the following decisions: - Joel Muna Opija vs. East African Sea Food Ltd [2013] eKLR , where the Court of Appeal held:
“… if a police abstract is produced in court without any objection, its contents cannot be denied.”
Esther Muthoni Munyiri vs. Amaco Insurance Co. Ltd [2021] eKLR , where the Court found that once a police abstract shows insurance cover, the burden shifts to the insurer to rebut.
APA Insurance Co. Ltd vs. George Masele [2014] eKLR , where the Court held:
“The Certificate of Insurance is usually issued to the insured and not the road accident victim. It is correct to say that in that case only the respondent herein being privy to the insurance contract … ought to have produced evidence in court to refute that it did not have a valid insurance policy with the said defendant.”
M/s Fidelity Shield Insurance Co. Ltd vs. Peter Mbugua Kimotho [2020] eKLR , where the court reaffirmed that:
“… a police abstract was produced which showed the subject motor vehicle was insured by the appellant …”
Universal Engineering Works vs. Mohammedi Suleiman Essaji [1951] 2 L.R.K. 99 , which held that:
“A successful party is entitled to costs unless there are good reasons for depriving him of the costs.”
It was the Appellant’s case that the trial magistrate erred by dismissing the suit despite clear, corroborated, and uncontroverted evidence proving insurance cover. He argued that the Respondent’s failure to call any witness or adduce contrary documentary evidence left the Appellant’s case unchallenged. The Appellant therefore urged this Court to allow the appeal, set aside the judgment of the trial court, enter judgment in his favour as prayed in the lower court, and award him costs both in the appeal and the lower court.
The Respondent’s Case
The Respondent, on the other hand, submitted that the Appellant’s Memorandum of Appeal, which raised fifteen grounds of appeal, is prolix and repetitive. It is argued that raising numerous grounds does not improve the prospects of success but only conceals the real issues for determination. Reliance was placed on the following decisions: - Ondieki vs. Omoit & 3 others (Civil Appeal E114 of 2023) [2025] KEHC 1474 (KLR) , where the Court held that: -
“The proper way of filing an appeal is to file a concise memorandum of appeal without arguments, cavil, or evidence… A surfeit of prolixious grounds of appeal do not in any way enhance the chances of success but only serve to obscure the real issues in dispute, vex and irritate the opposite parties, waste judicial time, and increase costs.”
Robinson Kiplagat Tuwei vs. Felix Kipchoge Limo Langat [2020] eKLR , where the Court emphasized the futility of prolix grounds of appeal, lamenting that: -
“…a surfeit of prolixious grounds of appeal do not in any way enhance the chances of success of an appeal. If anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.”
On the Standard of Proof, the Respondent submited that the burden of proof lay squarely with the Appellant to prove, on a balance of probabilities, that the Respondent insured the subject motor vehicle at the material time. It is argued that mere production of a police abstract without corroborating documentary evidence of the insurance policy does not suffice. Reliance was placed on the decision in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi [2014] eKLR , where the Court held: -
“The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.”
Reference was also made to the decision in Jiji vs. Gateway Insurance Co. Ltd (Civil Appeal No. 126 of 2018) [2022] KECA 368 (KLR) , where the Court of Appeal affirmed that the burden lay with the claimant to prove that the insurer indeed covered the vehicle in question, holding that:
“…the burden of proving that the certificate was properly and validly issued by the respondent rested upon the appellant… the evidential burden never shifted to the respondent.”
On the import of Police Abstract as evidence, the Respondent argued that the Appellant wrongly relied solely on a police abstract to prove the existence of the insurance contract. It was submitted that police abstracts, being documents easily obtained and susceptible to abuse, cannot by themselves prove the existence of an insurance contract unless corroborated. Reliance was placed on the case of Dr. James Ng’ang’a Mungai vs. United Insurance Co. Ltd (2000) where the Court held:
“For an insurance company to be liable under Section 10(2) of the Act, firstly, it must be proved that the insurance actually covered the insured’s car… a police abstract does not help as that document only shows what the police recorded with the details as they found and noted.”
The Respondent further discreditted the Appellant’s reliance on APA Insurance Co. Ltd vs. George Masele [2014] eKLR , and stated that the decision was misapplied, since in the present case, no effort was made to call the insured or produce the insurance policy.
On Section 12 of the Insurance (Motor Vehicle Third Party Risks) Act (hereinafter, “the Act”) , the Respondent invoked Section 12(1) which requires that an insurer or insured, on demand, to produce particulars of an insurance policy. The Respondent argued that the Appellant ought to have invoked this provision to compel the insured or the insurer to produce the policy and maintained that his failure to do so was fatal to his case. Reference was made to the decision in Jiji vs. Gateway Insurance Co. Ltd (supra) where the Court of Appeal emphasized that: -
“…by failing to take advantage of the provisions of Section 12(1), the appellant placed upon himself the heavy burden of disproving that the certificate of insurance was a forgery… the evidential burden never shifted to the respondent.”
Issues, Analysis and Determination
The duty of the first appellate court was explained in GKN & another vs. Civiscope Ltd [2021] eKLR , where the Court held:
“It is the duty of this court as the first appellate court, to re-evaluate, reconsider and re-analyse the evidence and come to its own conclusion on it. The court should however bear in mind that it did not see the witnesses testify and give due allowance for that.”
I have carefully considered the record of appeal and the parties’ rival submissions. I find that the main issue for my determination is whether the Appellant proved his case against the Respondent to the required standard.
The Respondent’s case was that the Appellant wholly failed to discharge the burden of proof. It contended that the Appellant relied exclusively on a police abstract which, by its very nature, cannot constitute sufficient proof of an insurance contract. Reliance was placed on Jiji vs. Gateway Insurance Co. Ltd (supra) where the Court of Appeal stated: -
“…the burden of proving that the certificate was properly and validly issued by the respondent rested upon the appellant… the evidential burden never shifted to the respondent.”
According to the Respondent, since the Jiji case (supra) is a recent decision that was rendered by a three-judge bench, it is authoritative in requiring production of an insurance policy or certificate to prove coverage. The Respondent further submitted that Section 12(1) of the Insurance (Motor Vehicles Third Party Risks) Act (the Act) provides the mechanism by which a Plaintiff may compel an insurer or insured to produce the policy which the Appellant failed to invoke. It was the Respondent’s case that the Appellant therefore failed to prove that the it insured the subject motor vehicle Reg. No. KAY 153X . The Respondent added that in the absence of such proof, the Appellant’s claim was bound to fail and that the trial magistrate rightly dismissed the suit.
On the issue of burden of proof, it is trite that by dint of the provisions of Section 107, 108 and 109 of the Evidence Act, he who alleges must prove . In this regard, the Appellant bore the burden of proving the existence of an insurance contract between the Respondent and the insured.
It was not disputed that the Appellant produced a police abstract and called witnesses, but did not produce the insurance policy or certificate of insurance. In Jiji vs. Gateway Insurance Co. Ltd (supra) t he Court of Appeal in was emphatic that an insurance policy is the most authoritative proof of cover. This court notes that while earlier authorities such as APA Insurance vs. George Masele (supra) recognized the probative value of police abstracts, the more recent jurisprudence has set a higher bar, requiring corroboration by an insurance certificate or invocation of statutory mechanisms under Section 12(1) of the Act which stipulates as follows: -
Section 12 – Duty of person against whom claim made to give information
Any person against whom a claim is made in respect of any liability to which a certificate of insurance relates shall, on demand by or on behalf of the person making the claim, state whether or not he was insured in respect of that liability by any policy having effect for the purposes of this Act, or would have been so insured if the insurer had not avoided or cancelled the policy, and, if he was or would have been so insured, give such particulars with respect to that policy as were specified in the certificate of insurance delivered in respect thereof.
In the present case, I find that since the Appellant did not invoke the provisions of Section 12 of the Act, he cannot be seen to complain that he was being asked to produce a policy document that was not in his custody. I therefore find that the trial court was justified to find that the Appellant’s case did not meet the threshold of proof that was expected in the case.
I further find that the Appellant’s evidence, through the police abstract, though pointing to possible insurance, fell short of the standard required to attach liability upon the Respondent. As was held in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi (supra) , if the evidence does not meet the standard of proof, the claim must fail.
This court also notes that Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act is the statutory foundation for declaratory suits against insurers. While Section 10(1) of the Act places an obligation upon the insurer to satisfy a judgment obtained against its insured in respect of liabilities covered under the policy, the proviso to Section 10(2) creates a substantive precondition in the following terms: -
... 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 …
I find that it is therefore a condition precedent to the insurer’s liability that it must have been served with notice of the institution of the primary suit against its insured. The rationale behind this requirement is to safeguard the insurer’s right to participate in the defence, investigate the claim, and generally prepare its position before liability can be attached to it.
In Blue Shield Insurance Co. Ltd vs. Joseph Mboya Oguttu [2009] eKLR , the Court of Appeal emphasized that: -
“…service of the statutory notice is a mandatory requirement. Failure to comply with the law renders the declaratory suit unsustainable, as the insurer cannot be fastened with liability without prior notice.”
Similarly, in Kenya Orient Insurance Co. Ltd vs. Quick Cargo Services Ltd [2011] eKLR , the High Court reaffirmed that: -
“The statutory notice is not a procedural technicality that can be waived. It goes to the root of the cause of action against the insurer. In its absence, the insurer has no legal duty to satisfy the judgment.”
The position was echoed in APA Insurance Co. Ltd vs. Vincent Ondieki Nyauma [2020] eKLR , where the court stressed that failure to prove service of notice is fatal to a declaratory suit.
In the instant appeal, a perusal of the record of appeal discloses that no statutory notice was served upon the Respondent either before or within fourteen days after the institution of Keroka PMCC No. 75 of 2018. The Appellant thus sought to rely solely on a police abstract and oral evidence to attach liability upon the insurer. I find that the Appellant’s approach cannot override the express statutory requirement.
I find that the absence of statutory notice rendered the declaratory suit fatally defective and that the Respondent could not lawfully be compelled to settle the decretal sum in the absence of compliance with Section 10(2) of Cap. 405. This failure alone was sufficient to justify the trial court’s dismissal of the claim.
Conclusion:
The service of statutory notice is a mandatory statutory precondition to the success of a declaratory suit against an insurer. In its absence, the claimant’s case collapses notwithstanding any other evidence, such as the Police Abstract, that he may have adduced.
Costs
Regarding costs, Section 27 of the Civil Procedure Act provides that costs follow the event unless the Court orders otherwise. Since the Respondent successfully defended both at the trial and on appeal, costs shall follow the event.
Conclusion
In light of the foregoing, I find no merit in this appeal. The judgment of the trial court delivered on 26th November 2024 in Keroka CMCC No. 147 of 2023 is hereby upheld.
Orders
I make the following final orders: -
The appeal is dismissed.
The judgment of the lower court dismissing the declaratory suit with costs is affirmed.
Costs of this appeal are awarded to the Respondent.
'
The Appellant herein was the Plaintiff before the trial court where he filed a declaratory suit against the Respondent seeking, inter alia , a declaration that the Respondent, as insurer of motor vehicle Reg. No. KAY 153 X owned by Franklin Kipronoh Ngenoh , was bound to satisfy the decretal sum awarded in Keroka PMCC No. 75 of 2018.
In a decision rendered by Hon. E.K. Nyutu, Chief Magistrate, in Keroka CMCC No. 147 of 2023 on 26.11.2024, the trial court dismissed the claim with costs, holding that the Appellant had not proved his his case to the required standard. Aggrieved by the trial court’s verdict, the Appellant lodged this appeal.
The appeal was canvassed by way of written submissions which I have considered.
The Appellant’s Case
The Appellant faulted the trial court for dismissing his suit despite overwhelming evidence proving the Respondent’s contractual obligation under the policy number HQS/0800/053050/2015. He relied on police abstract (PEXBT 3), statutory notices, his oral testimony (PW1) and the testimony of PW2 (a police officer) who confirmed that the Respondent was indeed the insurer of the suit motor vehicle as at the date of the accident on 20 th November 2016.
The Appellant contended that the trial court wrongly shifted the burden of proof by requiring him, a third-party victim, to produce the original insurance certificate or contract, which was not within his custody. He argued that the correct legal position is that production of a police abstract is sufficient proof of insurance coverage unless expressly rebutted.
The Appellant cited Section 78 of the Civil Procedure Act and urged this Court, as a first appellate court to re-evaluate and re-analyse the evidence and reach its own independent conclusion.
The Appellant cited the following decisions: - Joel Muna Opija vs. East African Sea Food Ltd [2013] eKLR , where the Court of Appeal held:
“… if a police abstract is produced in court without any objection, its contents cannot be denied.”
Esther Muthoni Munyiri vs. Amaco Insurance Co. Ltd [2021] eKLR , where the Court found that once a police abstract shows insurance cover, the burden shifts to the insurer to rebut.
APA Insurance Co. Ltd vs. George Masele [2014] eKLR , where the Court held:
“The Certificate of Insurance is usually issued to the insured and not the road accident victim. It is correct to say that in that case only the respondent herein being privy to the insurance contract … ought to have produced evidence in court to refute that it did not have a valid insurance policy with the said defendant.”
M/s Fidelity Shield Insurance Co. Ltd vs. Peter Mbugua Kimotho [2020] eKLR , where the court reaffirmed that:
“… a police abstract was produced which showed the subject motor vehicle was insured by the appellant …”
Universal Engineering Works vs. Mohammedi Suleiman Essaji [1951] 2 L.R.K. 99 , which held that:
“A successful party is entitled to costs unless there are good reasons for depriving him of the costs.”
It was the Appellant’s case that the trial magistrate erred by dismissing the suit despite clear, corroborated, and uncontroverted evidence proving insurance cover. He argued that the Respondent’s failure to call any witness or adduce contrary documentary evidence left the Appellant’s case unchallenged. The Appellant therefore urged this Court to allow the appeal, set aside the judgment of the trial court, enter judgment in his favour as prayed in the lower court, and award him costs both in the appeal and the lower court.
The Respondent’s Case
The Respondent, on the other hand, submitted that the Appellant’s Memorandum of Appeal, which raised fifteen grounds of appeal, is prolix and repetitive. It is argued that raising numerous grounds does not improve the prospects of success but only conceals the real issues for determination. Reliance was placed on the following decisions: - Ondieki vs. Omoit & 3 others (Civil Appeal E114 of 2023) [2025] KEHC 1474 (KLR) , where the Court held that: -
“The proper way of filing an appeal is to file a concise memorandum of appeal without arguments, cavil, or evidence… A surfeit of prolixious grounds of appeal do not in any way enhance the chances of success but only serve to obscure the real issues in dispute, vex and irritate the opposite parties, waste judicial time, and increase costs.”
Robinson Kiplagat Tuwei vs. Felix Kipchoge Limo Langat [2020] eKLR , where the Court emphasized the futility of prolix grounds of appeal, lamenting that: -
“…a surfeit of prolixious grounds of appeal do not in any way enhance the chances of success of an appeal. If anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.”
On the Standard of Proof, the Respondent submited that the burden of proof lay squarely with the Appellant to prove, on a balance of probabilities, that the Respondent insured the subject motor vehicle at the material time. It is argued that mere production of a police abstract without corroborating documentary evidence of the insurance policy does not suffice. Reliance was placed on the decision in Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi [2014] eKLR , where the Court held: -
“The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.”
Reference was also made to the decision in Jiji vs. Gateway Insurance Co. Ltd (Civil Appeal No. 126 of 2018) [2022] KECA 368 (KLR) , where the Court of Appeal affirmed that the burden lay with the claimant to prove that the insurer indeed covered the vehicle in question, holding that:
“…the burden of proving that the certificate was properly and validly issued by the respondent rested upon the appellant… the evidential burden never shifted to the respondent.”
On the import of Police Abstract as evidence, the Respondent argued that the Appellant wrongly relied solely on a police abstract to prove the existence of the insurance contract. It was submitted that police abstracts, being documents easily obtained and susceptible to abuse, cannot by themselves prove the existence of an insurance contract unless corroborated. Reliance was placed on the case of Dr. James Ng’ang’a Mungai vs. United Insurance Co. Ltd (2000) where the Court held:
“For an insurance company to be liable under Section 10(2) of the Act, firstly, it must be proved that the insurance actually covered the insured’s car… a police abstract does not help as that document only shows what the police recorded with the details as they found and noted.”
The Respondent further discreditted the Appellant’s reliance on APA Insurance Co. Ltd vs. George Masele [2014] eKLR , and stated that the decision was misapplied, since in the present case, no effort was made to call the insured or produce the insurance policy.
On Section 12 of the Insurance (Motor Vehicle Third Party Risks) Act (hereinafter, “the Act”) , the Respondent invoked Section 12(1) which requires that an insurer or insured, on demand, to produce particulars of an insurance policy. The Respondent argued that the Appellant ought to have invoked this provision to compel the insured or the insurer to produce the policy and maintained that his failure to do so was fatal to his case. Reference was made to the decision in Jiji vs. Gateway Insurance Co. Ltd (supra) where the Court of Appeal emphasized that: -
“…by failing to take advantage of the provisions of Section 12(1), the appellant placed upon himself the heavy burden of disproving that the certificate of insurance was a forgery… the evidential burden never shifted to the respondent.”
Issues, Analysis and Determination
The duty of the first appellate court was explained in GKN & another vs. Civiscope Ltd [2021] eKLR , where the Court held:
“It is the duty of this court as the first appellate court, to re-evaluate, reconsider and re-analyse the evidence and come to its own conclusion on it. The court should however bear in mind that it did not see the witnesses testify and give due allowance for that.”
I have carefully considered the record of appeal and the parties’ rival submissions. I find that the main issue for my determination is whether the Appellant proved his case against the Respondent to the required standard.
The Respondent’s case was that the Appellant wholly failed to discharge the burden of proof. It contended that the Appellant relied exclusively on a police abstract which, by its very nature, cannot constitute sufficient proof of an insurance contract. Reliance was placed on Jiji vs. Gateway Insurance Co. Ltd (supra) where the Court of Appeal stated: -
“…the burden of proving that the certificate was properly and validly issued by the respondent rested upon the appellant… the evidential burden never shifted to the respondent.”
According to the Respondent, since the Jiji case (supra) is a recent decision that was rendered by a three-judge bench, it is authoritative in requiring production of an insurance policy or certificate to prove coverage. The Respondent further submitted that Section 12(1) of the Insurance (Motor Vehicles Third Party Risks) Act (the Act) provides the mechanism by which a Plaintiff may compel an insurer or insured to produce the policy which the Appellant failed to invoke. It was the Respondent’s case that the Appellant therefore failed to prove that the it insured the subject motor vehicle Reg. No. KAY 153X . The Respondent added that in the absence of such proof, the Appellant’s claim was bound to fail and that the trial magistrate rightly dismissed the suit.
On the issue of burden of proof, it is trite that by dint of the provisions of Section 107, 108 and 109 of the Evidence Act, he who alleges must prove . In this regard, the Appellant bore the burden of proving the existence of an insurance contract between the Respondent and the insured.
It was not disputed that the Appellant produced a police abstract and called witnesses, but did not produce the insurance policy or certificate of insurance. In Jiji vs. Gateway Insurance Co. Ltd (supra) t he Court of Appeal in was emphatic that an insurance policy is the most authoritative proof of cover. This court notes that while earlier authorities such as APA Insurance vs. George Masele (supra) recognized the probative value of police abstracts, the more recent jurisprudence has set a higher bar, requiring corroboration by an insurance certificate or invocation of statutory mechanisms under Section 12(1) of the Act which stipulates as follows: -
Section 12 – Duty of person against whom claim made to give information
Any person against whom a claim is made in respect of any liability to which a certificate of insurance relates shall, on demand by or on behalf of the person making the claim, state whether or not he was insured in respect of that liability by any policy having effect for the purposes of this Act, or would have been so insured if the insurer had not avoided or cancelled the policy, and, if he was or would have been so insured, give such particulars with respect to that policy as were specified in the certificate of insurance delivered in respect thereof.
In the present case, I find that since the Appellant did not invoke the provisions of Section 12 of the Act, he cannot be seen to complain that he was being asked to produce a policy document that was not in his custody. I therefore find that the trial court was justified to find that the Appellant’s case did not meet the threshold of proof that was expected in the case.
I further find that the Appellant’s evidence, through the police abstract, though pointing to possible insurance, fell short of the standard required to attach liability upon the Respondent. As was held in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi (supra) , if the evidence does not meet the standard of proof, the claim must fail.
This court also notes that Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act is the statutory foundation for declaratory suits against insurers. While Section 10(1) of the Act places an obligation upon the insurer to satisfy a judgment obtained against its insured in respect of liabilities covered under the policy, the proviso to Section 10(2) creates a substantive precondition in the following terms: -
... 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 …
I find that it is therefore a condition precedent to the insurer’s liability that it must have been served with notice of the institution of the primary suit against its insured. The rationale behind this requirement is to safeguard the insurer’s right to participate in the defence, investigate the claim, and generally prepare its position before liability can be attached to it.
In Blue Shield Insurance Co. Ltd vs. Joseph Mboya Oguttu [2009] eKLR , the Court of Appeal emphasized that: -
“…service of the statutory notice is a mandatory requirement. Failure to comply with the law renders the declaratory suit unsustainable, as the insurer cannot be fastened with liability without prior notice.”
Similarly, in Kenya Orient Insurance Co. Ltd vs. Quick Cargo Services Ltd [2011] eKLR , the High Court reaffirmed that: -
“The statutory notice is not a procedural technicality that can be waived. It goes to the root of the cause of action against the insurer. In its absence, the insurer has no legal duty to satisfy the judgment.”
The position was echoed in APA Insurance Co. Ltd vs. Vincent Ondieki Nyauma [2020] eKLR , where the court stressed that failure to prove service of notice is fatal to a declaratory suit.
In the instant appeal, a perusal of the record of appeal discloses that no statutory notice was served upon the Respondent either before or within fourteen days after the institution of Keroka PMCC No. 75 of 2018. The Appellant thus sought to rely solely on a police abstract and oral evidence to attach liability upon the insurer. I find that the Appellant’s approach cannot override the express statutory requirement.
I find that the absence of statutory notice rendered the declaratory suit fatally defective and that the Respondent could not lawfully be compelled to settle the decretal sum in the absence of compliance with Section 10(2) of Cap. 405. This failure alone was sufficient to justify the trial court’s dismissal of the claim.
Conclusion:
The service of statutory notice is a mandatory statutory precondition to the success of a declaratory suit against an insurer. In its absence, the claimant’s case collapses notwithstanding any other evidence, such as the Police Abstract, that he may have adduced.
Costs
Regarding costs, Section 27 of the Civil Procedure Act provides that costs follow the event unless the Court orders otherwise. Since the Respondent successfully defended both at the trial and on appeal, costs shall follow the event.
Conclusion
In light of the foregoing, I find no merit in this appeal. The judgment of the trial court delivered on 26th November 2024 in Keroka CMCC No. 147 of 2023 is hereby upheld.
Orders
I make the following final orders: -
The appeal is dismissed.
The judgment of the lower court dismissing the declaratory suit with costs is affirmed.
Costs of this appeal are awarded to the Respondent.
'