' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
APPELLATE DIVISION
CIVIL APPEAL NO. E0414 OF 2023
STEPHEN OCHIENG ODHIAMBO…….………..……APPELLANT
VERSUS
DIRECTLINE ASSURANCE CO LTD……………..…RESPONDENT
( Being an Appeal from the Judgment of Honorable Muthoni Mwangi (Ms) issued on the 25 th day of April 2023)
ARISING BETWEEN
STEPHEN OCHIENG ODHIAMBO………………………PLAINTIFF
VERSUS
DIRECTLINE ASSURANCE CO LTD..……………….RESPONDENT
J U D G M E N T
Introduction
This appeal challenges the judgment delivered by Hon Muthoni Mwangi (SRM) in Millimani CMCC No E763 of 2022, where the Appellant had filed a declaratory suit as against the respondent seeking to enforce his decree valued at Kshs 1,200,000/= plus costs of Kshs 269,339/= obtained Millimani CMCC No 4331 of 2020 . After considering the Appellant case the learned trial Magistrate held that the Appellant had not adduced sufficient evidence to discharge the burden of proof and dismissed the primary suit.
Background Facts
The Appellant had filed Millimani commercial civil suit No 4331 of 2020 , where he sued one Geoffrey Mwangi Njuki , as the registered owner of motor vehicle registration Number KBS 910K (hereinafter referred to as the suit motor vehicle) and his authorized driver one Francis Ndirangua for compensation in tort arising from injuries sustained in a road traffic accident involving the said suit motor vehicle, which accident occurred on 21 st February 2016 along Jogoo Road. The said suit was determined in his favour and he was awarded damages of Kshs 1,200,000/= plus costs of Kshs 269,339/=.
It was the appellants contention that the said suit motor vehicle at the time of the accident was comprehensively insured by the respondent herein under policy cover 01022978-C-25/7/15 and that before filing the primary suit, he had issued the requiste statutory notice to the respondent as required by law and that the same had been received on 06.08.2020.
Upon being served with summons, the respondent instructed the firm of Kimondo Gachoka & Company Advocates to represent the defendants in the primary suit and eventually judgment was entered in his favour on terms as stated above. Subsequently he filed the declaratory suit, being Millimani Civil case No E414 of 2023 , to enforce the judgment issued in the primary suit, where he testified and produced his claim supporting documents into evidence. The respondent did not call any witnesses in support of their case.
The trial court considered the evidence adduced, submissions filed and held that the Appellant did not produce the police Abstract, which would have indicated the insurance policy Number. In short evidence was led to support this contention was not satisfactory and thus the Appellant had failed to discharge the burden of proof.
Dissatisfied with the said Judgment, the appellant did proceed to file his memorandum of Appeal dated 5 th February 2021, wherein he raised the following grounds of Appeal, to wit;
That the learned Magistrate erred in her appreciation and application of the provisions of the insurance (Motor vehicle Third Party Risks) Act, Chapter 405 Laws of Kenya.
That the learned Magistrate erred in shifting the burden of proof to the Appellant in so far as proving Whether the Respondent was the insurer, yet the respondent failed to adduce evidence that it was not the insurer.
That the learned Magistrate erred in law in finding that production of the Abstract in the suit leading to the appeal was mandatory such that its absence led to the finding that the Appellant failed to prove his case.
That the learned Magistrate failed to apricate and therefore to find and hold that the appellant’s evidence was not controverted.
That the learned Magistrate erred in her appreciation and application of the preconditions to be satisfied by the plaintiff in a declaratory suit.
That the learned Magistrate misunderstood the burden and standard of proof.
That the learned Magistrate misunderstood the evidence materially.
The Appellant prayed that this appeal be allowed and the impugned judgment be set aside in its entirety. He also asked for the costs of this Appeal and any other relief this court may deem fit and just to grant.
Analysis & Determination
I have considered this appeal and the impugned Judgment. I have also considered the submissions filed, the decisions relied on, and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123).
A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph, AIR 1969 Kerala 316.
The central issue for determination in this Appeal is whether the Appellant discharged the burden of proof, in order to be successful in the declaratory suit that he had filed (the primary suit). The halsbury’s laws of England, 4 th Edition, Volume 17 at para 13 and 14 states that;
“ The legal burden is the burden of proof which remains constant through a trial; it is the burden of establishing the facts and contentions which will support the parties case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied in respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is essential to his case. There may therefore be separate burdens in a case with separate issues.
{16} The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both legal and evidential burden initially rests upon the appellant, the evidential burden may shift in the course of trial depending on the evidence adduced. As to weight of evidence given, by either side during the trial varies; so will the evidential burden shift to the party who would fail without further evidence.”
In the case of Evans Nyakwana Vs Cleophas Rwana ongaro ( 2015) eKLR it was held that
“ As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purpose of section 107(i) of the Evidence Act, Chapter 80 laws of Kenya. Furthermore, the evidential burden…… is cast upon any party, the burden of proving any particular fact which he desired the court to believe in its existence. That is captured in section 109 and 112 of the law that proof of that fact shall lie on any particular person….. The appellant discharged that burden and as section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
I also refer to Palace Investments Ltd Vs Geofrey Kariuki Mwendwa & Another (2015) Eklr , Where the judges of Appeal referred to “Denning J in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say;
“ That degree is well settled, it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it is more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where the parties…..are equally (un)convincing, the party bearing the burden of proof will loose because the requisite standard will not have been obtained.”
Section 10(1) and (2) of the Insurance (Motor vehicle third party risks) Act, Cap 405 laws of Kenya placed a statutory duty on the insurance company to satisfy or settle decrees against their insured. In Machakos Civil Suit No. 26 of 2018 Kiamuko & another (Suing as Administrators of the Estate of the Late Evans Kyalo Maundu - Deceased) v ICEA Lion General Insurance Co. Limited Justice J. Odunga stated that
“ According to section 10 of the Act, after a policy of insurance has been elected the Insurer is liable to pay to the persons entitled to the benefit of a judgment any sum payable, 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. The section 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. In our case the enactment relating to interest on judgements is section 27 of the Civil Procedure Act. 41.
The said Act, at Section 10(4) , further provides that;
“ No sum shall be payable by an insurer under the foregoing provisions of this section if an action commenced before, or within three months after the commencement of the proceedings in which the judgment was given he has obtained a declaration that apart from any provision contained in the policy he is entitled to avoid it on the ground that it was obtained by non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or if he has avoided the policy or that he was entitled to do so apart from the provisions contained in it;
The learned trial Magistrate dismissed the Appellants case on the basis that he did not produce the police abstract, which in the said court words would , “prima facie proof of existence of a contractual relationship between an insured and the insurance company in question” . With respect this finding was made in error as proof of a contractual relationship between the respondent and its insured can be deuced from many other undisputed facts herein.
The Appellant produced before the trial court the proceedings of the primary suit Millimani Commerical Civil Case No E4331 OF 2020 , where he obtained the decree against the respondent insured. Prior to filing of the said suit the Appellant advocate, did send a demand letter to the respondent informing them of their intention to file a suit. This is a statutory requirement and said letter was received and stamped by the respondent herein on 5 th August 2020. After the suit was filed the defendant under the principal of subrogation appointed a firm of advocate to act for the defendant in the primary matter and to also defend the declaratory suit.
If indeed the respondent was not the insurer of the defendant in the primary suit, nothing would have been easier than for them to respond to the said letter and say so. They also had the option to repudiate their obligation as permitted under Section 10(4) of the Insurance (Motor vehicle third party risks) Act, Cap 405 laws of Kenya but did not do so. Had the trial court considered these facts, she would have found that on a balance of preponderance, the Appellant had discharged both the legal and evidential burden imposed on them, and that the evidential burden shifted to the respondent to prove otherwise.
Unfortunately, the Respondent did not offer any evidence, to challenge the Appellants assertions and their evidence thus remained uncontroverted. In the case of Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1 st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.
C . Disposition
This Appeal therefore has merit. The judgment dated 25 th April 2023, delivered by the Honourable Muthoni Mwangi (SRM) in Nairobi Millimani Commercial Case CMCC No. 736 of 2022 , dismissing the said suit is hereby set aside, and substituted with Judgment being entered in favour of the plaintiff therein as prayed for in his plaint dated 31 st January 2022 plus costs and Interest at Court rates.
The Appellant will have costs of this Appeal assessed at Kshs 150,000/= all inclusive.
It is so ordered.
Dated, signed, and delivered in open court at MARSABIT this ................25 TH ..................day of NOVEMBER , 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this 25 th …day of NOVEMBER ,2025.
In the presence of : -
………………………………………………………..Appellant
………………………………………………………. Respondent
………………………………………………….Court Assistant
'
IN THE HIGH COURT OF KENYA AT NAIROBI
APPELLATE DIVISION
CIVIL APPEAL NO. E0414 OF 2023
STEPHEN OCHIENG ODHIAMBO…….………..……APPELLANT
VERSUS
DIRECTLINE ASSURANCE CO LTD……………..…RESPONDENT
( Being an Appeal from the Judgment of Honorable Muthoni Mwangi (Ms) issued on the 25 th day of April 2023)
ARISING BETWEEN
STEPHEN OCHIENG ODHIAMBO………………………PLAINTIFF
VERSUS
DIRECTLINE ASSURANCE CO LTD..……………….RESPONDENT
J U D G M E N T
Introduction
This appeal challenges the judgment delivered by Hon Muthoni Mwangi (SRM) in Millimani CMCC No E763 of 2022, where the Appellant had filed a declaratory suit as against the respondent seeking to enforce his decree valued at Kshs 1,200,000/= plus costs of Kshs 269,339/= obtained Millimani CMCC No 4331 of 2020 . After considering the Appellant case the learned trial Magistrate held that the Appellant had not adduced sufficient evidence to discharge the burden of proof and dismissed the primary suit.
Background Facts
The Appellant had filed Millimani commercial civil suit No 4331 of 2020 , where he sued one Geoffrey Mwangi Njuki , as the registered owner of motor vehicle registration Number KBS 910K (hereinafter referred to as the suit motor vehicle) and his authorized driver one Francis Ndirangua for compensation in tort arising from injuries sustained in a road traffic accident involving the said suit motor vehicle, which accident occurred on 21 st February 2016 along Jogoo Road. The said suit was determined in his favour and he was awarded damages of Kshs 1,200,000/= plus costs of Kshs 269,339/=.
It was the appellants contention that the said suit motor vehicle at the time of the accident was comprehensively insured by the respondent herein under policy cover 01022978-C-25/7/15 and that before filing the primary suit, he had issued the requiste statutory notice to the respondent as required by law and that the same had been received on 06.08.2020.
Upon being served with summons, the respondent instructed the firm of Kimondo Gachoka & Company Advocates to represent the defendants in the primary suit and eventually judgment was entered in his favour on terms as stated above. Subsequently he filed the declaratory suit, being Millimani Civil case No E414 of 2023 , to enforce the judgment issued in the primary suit, where he testified and produced his claim supporting documents into evidence. The respondent did not call any witnesses in support of their case.
The trial court considered the evidence adduced, submissions filed and held that the Appellant did not produce the police Abstract, which would have indicated the insurance policy Number. In short evidence was led to support this contention was not satisfactory and thus the Appellant had failed to discharge the burden of proof.
Dissatisfied with the said Judgment, the appellant did proceed to file his memorandum of Appeal dated 5 th February 2021, wherein he raised the following grounds of Appeal, to wit;
That the learned Magistrate erred in her appreciation and application of the provisions of the insurance (Motor vehicle Third Party Risks) Act, Chapter 405 Laws of Kenya.
That the learned Magistrate erred in shifting the burden of proof to the Appellant in so far as proving Whether the Respondent was the insurer, yet the respondent failed to adduce evidence that it was not the insurer.
That the learned Magistrate erred in law in finding that production of the Abstract in the suit leading to the appeal was mandatory such that its absence led to the finding that the Appellant failed to prove his case.
That the learned Magistrate failed to apricate and therefore to find and hold that the appellant’s evidence was not controverted.
That the learned Magistrate erred in her appreciation and application of the preconditions to be satisfied by the plaintiff in a declaratory suit.
That the learned Magistrate misunderstood the burden and standard of proof.
That the learned Magistrate misunderstood the evidence materially.
The Appellant prayed that this appeal be allowed and the impugned judgment be set aside in its entirety. He also asked for the costs of this Appeal and any other relief this court may deem fit and just to grant.
Analysis & Determination
I have considered this appeal and the impugned Judgment. I have also considered the submissions filed, the decisions relied on, and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123).
A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph, AIR 1969 Kerala 316.
The central issue for determination in this Appeal is whether the Appellant discharged the burden of proof, in order to be successful in the declaratory suit that he had filed (the primary suit). The halsbury’s laws of England, 4 th Edition, Volume 17 at para 13 and 14 states that;
“ The legal burden is the burden of proof which remains constant through a trial; it is the burden of establishing the facts and contentions which will support the parties case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied in respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is essential to his case. There may therefore be separate burdens in a case with separate issues.
{16} The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both legal and evidential burden initially rests upon the appellant, the evidential burden may shift in the course of trial depending on the evidence adduced. As to weight of evidence given, by either side during the trial varies; so will the evidential burden shift to the party who would fail without further evidence.”
In the case of Evans Nyakwana Vs Cleophas Rwana ongaro ( 2015) eKLR it was held that
“ As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purpose of section 107(i) of the Evidence Act, Chapter 80 laws of Kenya. Furthermore, the evidential burden…… is cast upon any party, the burden of proving any particular fact which he desired the court to believe in its existence. That is captured in section 109 and 112 of the law that proof of that fact shall lie on any particular person….. The appellant discharged that burden and as section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”
I also refer to Palace Investments Ltd Vs Geofrey Kariuki Mwendwa & Another (2015) Eklr , Where the judges of Appeal referred to “Denning J in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say;
“ That degree is well settled, it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it is more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where the parties…..are equally (un)convincing, the party bearing the burden of proof will loose because the requisite standard will not have been obtained.”
Section 10(1) and (2) of the Insurance (Motor vehicle third party risks) Act, Cap 405 laws of Kenya placed a statutory duty on the insurance company to satisfy or settle decrees against their insured. In Machakos Civil Suit No. 26 of 2018 Kiamuko & another (Suing as Administrators of the Estate of the Late Evans Kyalo Maundu - Deceased) v ICEA Lion General Insurance Co. Limited Justice J. Odunga stated that
“ According to section 10 of the Act, after a policy of insurance has been elected the Insurer is liable to pay to the persons entitled to the benefit of a judgment any sum payable, 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. The section 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. In our case the enactment relating to interest on judgements is section 27 of the Civil Procedure Act. 41.
The said Act, at Section 10(4) , further provides that;
“ No sum shall be payable by an insurer under the foregoing provisions of this section if an action commenced before, or within three months after the commencement of the proceedings in which the judgment was given he has obtained a declaration that apart from any provision contained in the policy he is entitled to avoid it on the ground that it was obtained by non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or if he has avoided the policy or that he was entitled to do so apart from the provisions contained in it;
The learned trial Magistrate dismissed the Appellants case on the basis that he did not produce the police abstract, which in the said court words would , “prima facie proof of existence of a contractual relationship between an insured and the insurance company in question” . With respect this finding was made in error as proof of a contractual relationship between the respondent and its insured can be deuced from many other undisputed facts herein.
The Appellant produced before the trial court the proceedings of the primary suit Millimani Commerical Civil Case No E4331 OF 2020 , where he obtained the decree against the respondent insured. Prior to filing of the said suit the Appellant advocate, did send a demand letter to the respondent informing them of their intention to file a suit. This is a statutory requirement and said letter was received and stamped by the respondent herein on 5 th August 2020. After the suit was filed the defendant under the principal of subrogation appointed a firm of advocate to act for the defendant in the primary matter and to also defend the declaratory suit.
If indeed the respondent was not the insurer of the defendant in the primary suit, nothing would have been easier than for them to respond to the said letter and say so. They also had the option to repudiate their obligation as permitted under Section 10(4) of the Insurance (Motor vehicle third party risks) Act, Cap 405 laws of Kenya but did not do so. Had the trial court considered these facts, she would have found that on a balance of preponderance, the Appellant had discharged both the legal and evidential burden imposed on them, and that the evidential burden shifted to the respondent to prove otherwise.
Unfortunately, the Respondent did not offer any evidence, to challenge the Appellants assertions and their evidence thus remained uncontroverted. In the case of Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1 st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.
C . Disposition
This Appeal therefore has merit. The judgment dated 25 th April 2023, delivered by the Honourable Muthoni Mwangi (SRM) in Nairobi Millimani Commercial Case CMCC No. 736 of 2022 , dismissing the said suit is hereby set aside, and substituted with Judgment being entered in favour of the plaintiff therein as prayed for in his plaint dated 31 st January 2022 plus costs and Interest at Court rates.
The Appellant will have costs of this Appeal assessed at Kshs 150,000/= all inclusive.
It is so ordered.
Dated, signed, and delivered in open court at MARSABIT this ................25 TH ..................day of NOVEMBER , 2025.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this 25 th …day of NOVEMBER ,2025.
In the presence of : -
………………………………………………………..Appellant
………………………………………………………. Respondent
………………………………………………….Court Assistant
'