[2023] KEHC 25246 (KLR)

APA Insurance Company Limited v Oliech ((Sued as the Legal Administrator of the Estate of the Late Kenince Onyango)) (Civil Appeal E146 of 2022) [2023] KEHC 25246 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25246 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E146 of 2022

MW Muigai, J

November 6, 2023

Between

APA Insurance Company Limited

Appellant

and

Jennifer Atieno Oliech

Respondent

(Sued as the Legal Administrator of the Estate of the Late Kenince Onyango)

(Being an appeal from the judgement and decree of Honorable Magistrate R.W Gitau delivered on 12th September,2022 in Mavoko MCCC No. E981 of 2022)

Judgment

Background Proceedings In The Trial Court The Plaint. 1. By Plaint dated 11th November,2021 and filed in the Trial Court on 7th December,2021 against the Appellant in which the Respondent claimed that: by policy of insurance number 14/800/20803 issued by the Appellant as the authorized insurer within the meaning of the Insurance cycle (Third Party Risks) Act Chapter 405 of the Laws of Kenya, the Appellant agreed to insure motor vehicle registration number KCC 820W Scania Lorry registered in the name of one Abdigani Abdikadir Muse according to copy of records obtained from National Transport and Safety (NTSA) from 18th June,2019 up to 15th March,2020 whereby the Appellant agreed to indemnify the insured in respect of any liability for the death or bodily injury to any person caused by or arising out of the use on road of the said motor vehicle as required to be covered by a policy of insurance under the said Act.

2. It was the Respondent case that on 22nd July,2019, during the existence of the said policy of insurance and while the same was in full force and effect, the deceased KENVINCE OYANGO OUMA sustained fatal injuries as a result of an accident which took place along Kitani Road within Syokimau Estate involving the aforesaid motor vehicle which was caused by the negligent driving of the Appellant’s said insured and/or his authorized driver, servant and or agent.

3. The Respondent averred that on or about the 12th February,2020, the Respondent brought an action being Mavoko CMCC No 113 of 2019 against the registered owner one Abdigani Abdikadir Muse for recovery of damages in respect of the injuries sustained by victims injured by the said motor vehicle being such liability as was covered by the terms of the aforesaid policy.

4. The Respondent contended that on 3rd December,2019 the Appellant replied to the Respondent’s demand letter requesting that they be issued with a professional undertaking not to file suit to allow for negotiations subject to authenticity of the claim facts which are well within the Appellant’s knowledge.

5. That on 9th March 2020 the Respondent’s advocate wrote back to the Appellant notifying them that a suit had already been filed being Mavoko CMCC No. 113 of 2020, Jennifer Atieno Oliech (suing as persona representative and legal administrator of the estate of Kenince Onyango Ouma) vs Abdigani Abdikadir Muse. The Counsel was gracious enough to forward summons and pleadings in respect of the said case to the Appellant; it was averred that on 22nd April,2020, the Appellant wrote to the Respondent’s Counsel confirming their willingness to negotiate the matter by requesting for professional undertaking that the Appellant need not enter appearance nor file defence in the case for a period of 30 days pending negotiations and further requested the Respondent’s counsel to quantify the claim in terms of liability and quantum these facts which the Respondent state were within the Appellant’s Knowledge.

6. The Respondent stated in the Plaint that her advocates made several calls and inquiries to the Appellant’s offices and officers enquiring about the progress of negotiations or even a counter offer on the quantification emailed on 11th August,2020 but no response was forthcoming; it was averred by the Respondent that on 20th September,2020, interlocutory judgement was entered against the registered owner of the said vehicle and matter proceeded by way of formal proof on 7th October,2021 and on 18th October,2021, Judgment was entered in favour of the Respondent as against the Defendant’s insured as follows: liability 100%, pain and suffering Kshs 30,000, loss of expectation of life Ksh. 150,000, loss of dependency Ksh. 2,491,452, special damages Ksh. 78,550 making a total of Ksh. 2,2750,002/ plus costs and interest until payment in full which was payable by the Appellant with accruing interest.

7. It was the Respondent’s case that they served notice of entry of judgement under Order 22 Rule 6 of the Civil Procedure Rule upon the registered owner and the Appellant herein on 25th October,2021; contending that by provision of Insurance Motor Vehicle (Third Party Risks) Act Chapter 405 the Appellant herein is statutorily obligated and is liable to pay to the Respondent Ksh. 2,2750,002/- plus costs and interest till payment in full.

8. Respondent prayed for judgment against the Appellant for:a.A declaration that the Appellant is statutorily obligated to indemnify the Respondent for the liability arising out of Mavoko CMCC NO. 113 of 2019 pursuant to the terms of the Insurance Policy and judgement entered on 18th October,2021. b.Interest on the decretal sum from 18th October,2019 until payment in full.c.Costs of the suit and interest thereon.

The Defence 9. The Appellant in his defense dated 29th December,2021 and filed in the Trial Court on 6th January,2022 denied the Respondent’s capacity to bring the suit and challenged the locus standi of the Respondent; Appellant averred that the said Abdigani Abdikadir Muse was not their insured and was not known to them. Thus if a policy of insurance had been issued in respect of motor vehicle registration number KCC 820W which the Appellant denied, then the said Abdigani Abdikadir Muse was a stranger to the said policy of insurance hence no liability attaches under the alleged policy.

10. Appellant lamented that the provisions of the Insurance (motor Vehicle Third Party Risks) Cap 405 as regards the enforcement of a judgment as against the Appellant herein only becomes enforceable upon delivery of judgment as against the insured party/ policy holder to relevant policy insurance and since judgment under reference was issued against a party not known to the Appellant the suit was misconceived against the Appellant. 11. Appellant averred and denied allegations that an accident occurred as alleged involving the deceased Kenvince Onyango Ouma and/or that the Defendant’s insured driver was negligent, in the alternative the Appellant averred that if any accident did occur as alleged (which was denied in toto), the same was wholly caused or substantially contributed to by the Respondent’s own negligence; contending further that if at all the suit Mavoko CMCC No. 113 of 2019 was instituted against Abdigani Abdikadir Muse as alleged, the same was against the party unknown to the Appellant as the Defendant therein had never been in contractual relationship of insurance with Abdigani Abdikardir Muse.

11. The Appellant, therefore, had no interest in the outcome of the suit; Appellant further denied that judgment entered was entered as alleged against their policy holder and insured of motor vehicle registration number KCC 820W , denying having been served with notice of entry of judgement; the Appellant denied all other contents of the Plaint save for the descriptive paragraphs and the jurisdiction the Honorable Court which was admitted and prayed that the Respondent’s suit against the Appellant be dismissed with costs.

Hearing in the Trial Court The Plaintiff’s Case 12. PW1 Jennifer Atieno Oliech gave her sworn statement and testified that she filed a witness statement which she adopted as her evidence in the Trial Court. She told the Trial Court that her prayers are per the Plaint and she is aware of judgment in CMCC 113 of 2020. She testified that her lawyer filed a list of documents and they were before Court amongst them was Statutory Notice received by APA Insurance on 19/11/2019 which referred to motor vehicle KCC 819W. PW1 prayed that the said documents be adopted as exhibits.

13. Mr. Lorot objected to the production of documents 2,4 and 5 as they were communications between parties and were expressed to be on a ‘Without prejudice’ basis and that no agreement was reached hence they could not be produced in Court.

14. Mr. Kangethe admitted that document No. 3 or 4 were on a ‘Without prejudice’ basis but item No. 4 had no ‘Without prejudice’ directive. The Trial Court exempted document 3 and 5 as they were on a without prejudice basis and was admitted document No.4.

15. In cross-examination by Mr. Lorot, PW1 testified that she sued on behalf of her deceased son and that she had a grant. Testifying that before the Trial Court was the judgment in the primary suit and that she did not know what certificate insurance is. She testified that APA insured KCC 820W; that her lawyer followed up on the Police Abstract which she claimed was not before Court and that there was a Court’s decision in which the defendant was Abdigani Abdikadir Muse. She referred to Statutory Notice. She claimed that the name of the Insured was stated as Abdigani Abdikadir Muse and that one letter was written to the Insurance Company asking for particulars of the Insured; that the said letter was dated 9/3/2020 and that the letter is not amongst her documents.

16. In re-examination, PW1 testified that judgment to the primary suit confirmed that she had a grant and that the said judgement also confirmed that she had a police abstract. She testified further that copy of records was also filed in the primary suit and the owner of the motor vehicle was Abdigani Abdikadir Muse was owner of items. Testifying that a statutory notice was issued to the Insurance Company, the policy number is indicated as P/14/800/20803 which had been issued by the defendant (APA); that the Defendant’s policy document was P/14/800/0020803 same she claimed was stated in the statutory notice.

17. The Respondent came to a close of her case.

The Defence Case 18. DW1 Rovina Koskei an employee of APA in the legal department, gave her Sworn statement and testified that she wrote a witness statement and wished to adopt as her evidence in chief and that she filed a list of documents and wished to produce them as exhibits. Testifying that they were not served with any demand letter before the institution of declaratory suit and that the summons in the Primary suit were against Abdigani Abdikadir Muse; she claimed that the judgement was pronounced against him and that they do not know anyone by the name Abdikadir Abdigani Muse.

19. In cross-examination, Dw1 testified that she was served with plaint; statements and the accompanying documents and that she had a copy of the judgement. Testifying that Maureen Gachimu was a former colleague who was given a legal opinion on liability of quantum vide an email on 11/8/2020 and that her response was in the DW1’s file. DW1 referred to demand letter dated 11/11/2019 which was received by APA on 15/11/2019. She testified that they responded to the letter seeking time to verify the matter.

20. DW.1 told the Trial Court they never responded and that she could not see any communication stating their position. She told Court that they did not respond to the Statutory Notice or demand letter indicating that Abdigani Abdikadir was not their insured. She claimed that the Statutory Notice was received by them which stated the policy number as 14/800/0020803 commencing on 15/3/2019 to expire on 15/3/2020. She told the Trial Court that the date of accident was within the period when the policy was valid and that it is not the Plaintiff’s duty to issue insurance policies. Testifying that the Plaintiff did not have the contents of the policy but she would have contents of the certificate which claimed the Plaintiff had.

21. She testified that under Section 10 of cap 405 the insured is duty bound to pay judgment subject to other provisions; She testified that the correct owner of the vehicle as per copy of records is Abdigani Abdikadir Muse and that the owner of the motor vehicle was properly sued in the primary suit. She testified that they issue insurance policies to policy holders and not the owner and that it is the plaintiff’s obligation to confirm the details of policy holder.

22. DW1 stated that they requested an undertaking but by the time they got information from their investigators a judgment had been issued and that they did not enter appearance because the Defendant was a stranger; further that the purpose of statutory notice is to inform them of the claim over a vehicle they had insured; that they did not dispute the issue of the primary suit and the motor vehicle is not insured in isolation to the policy holder. She testified that statutory notice allows them to verify circumstances of the accident; that they did not appeal the decision because it was against a stranger to them.

23. In re-examination by Mr. Lorot, DW1 testified that the obligation to settle the claim arises after judgment against the insured and that judgment was obtained against Abdigani Abdikadir and that one insured was Muoki Bosco. That information about the insured can be obtained from the police abstract and that had they been requested for information they would have availed it. DW1 stated that there was no admission of liability and it is standard procedure to investigate and authenticate the claim. She told court that their insured was Muoki Bosco; Abdigani Abdikadir was not their insured.

24. The matter was canvassed by written submissions in the trial court.

Trial Court’s Judgment 25. Vide judgment dated 12th September,2022, the Trial Court found that the Respondent herein proved her case against the Appellant herein on the balance of probability and granted the following orders:a.A declaration that the Appellant/Defendant was statutorily bound to indemnify the Respondent/Plaintiff for liability arising from Mavoko CMCC 113 of 2019 pursuant to the terms of insurance policy and judgement entered on 18th October,2021. b.Interest on the decretal sum from 18th October,2021 until payment in full.c.The Respondent/plaintiff awarded the costs of the instant suit together with interest thereon at court rates.

The Application for Stay of Execution 26. The Appellant instituted in this Court Miscellaneous Application No. E139 of 2022 in which Court was moved by Notice of Motion supported by an affidavit sworn Rovina Cherono. The Appellant/ Applicant sought orders that: the application be certified as urgent and heard exparte in the first instance; the Court grants orders of temporary stay of execution of the judgment and decree in Mavoko Civil Case No. E981 of 2021 delivered on 12th September,2022 pending the hearing and determination of the application; the Applicant be granted leave to appeal out of time against the whole judgment and decree in Mavoko Civil Case No.981 of 2021 delivered on 12th September,2022; the Court grants stay of execution of the judgment and decree in Mavoko Civil Case No. E981 of 2021 delivered on 12th September,2022 pending the hearing and determination of the appeal; cost of the application to be provided for.

27. Part of the orders sought by the Applicant were dispensed with vide Court Order dated 19th October,2022 in which the court among other orders granted leave to appeal out of time; Kshs. 500,000 be paid to the Respondent and a bond in the name of Respondent was to be taken out within 90 days from the date the order was granted.

The Appeal 28. Dissatisfied with the Judgment of the trial court, the Appellant vide Memorandum of Appeal dated 21st October,2022 sought orders that:a.The judgment and Decree of the trial Court be set aside;b.This Court to re-evaluate the evidence on record before the Trial Court and decide as to whether the Appellant is statutory obligated to indemnify the respondent for liability arising from Mavoko MCC No. 113 of 2019; andc.The Court to grant any or further orders as may be just and expedient in the circumstances.d.Costs of the Appeal be awarded to the Appellant.

29. The appeal is brought on the grounds that:i.The Learned Trial Magistrate erred in Law and fact in finding that the Respondent had satisfied the conditions necessary for declaratory judgement under the Insurance (Motor Vehicle Third Party Risks) Act Cap 405. ii.The Learned Trial Magistrate erred in Law and fact in making a finding that the institution of a suit against a wrong defendant is not fatal.iii.The Learned Trial Magistrate erred in Law and fact in admitting as evidence facts emanating from negotiations between the parties before filing the case.iv.The Learned Trial Magistrate erred in Law by framing issues for consideration without referring to issues framed, and filed by parties.v.The learned Magistrate erred in law by failing to give concise statement of the case, a concise statement of evidence adduced by parties, the point of determination, the decision thereon and reasons of her judgment pronounced on 12th September,2022.

30. The Appeal was canvassed by way of written submissions.

Submissions The Appellant’s Submissions 31. The Appellants in its submissions dated 5th May,2023 and filed in court on 15th May,2023 in which Mr. Mwangagi, counsel for the Appellant raised the following issues for determination as captured in the Memorandum of Appeal:i.Whether the Respondent satisfied the conditions necessary for declaratory judgement under the insurance (Motor vehicle Third Party Risk) Act Cap. 405. ii.Whether the institution of suit against a wrong Defendant was fatal and whether the court erred in admitting the negotiations in to evidence.iii.Whether the Honorable Court erred in Law and in fact in making a declaratory that the Appellant should satisfy the judgement in Mavoko CMCC 113 of 2019. iv.Who should bear the cost of the Appeal.

32. On whether the Respondent satisfied the conditions necessary for declaratory judgement under the insurance (Motor vehicle Third Party Risk) Act Cap. 405, Counsel for the Appellant averred that the Defendant sued by the Respondent herein in the Primary suit Mavoko CMCC 113 OF 2019; Abdigani Abdikadir Muse was a is a stranger to them as he did not hold a valid policy with the Appellant to necessitate them to appoint an advocate for him in that suit or even prefer an appeal in the matter.

33. It was the Appellant’s position that lack of any existing contractual relationship negates any form of obligation that the Respondent herein alleged the Appellant had with regard to the judgement entered in the primary for there to be an obligation to meet liability suffered by third parties. Contending that the Appellant did not concern itself with the case as it lacked locus on the matter. Reliance was made on Section 10 of the Motor Vehicle Third Party Risks Act, to buttress the point that for an insurer to be liable there must be a judgment against its insured. Further, counsel relied on the case of AIG Insurance Company Limited Vs Bernard Kiprotich Kirui (2022) eklr, to substantiate his stance that the insurance company is only liable for judgments entered against persons insured by its policy.

34. Counsel further relied on the cases of Lucena vs Crawford (1806) 2 BOS PNR 269 AT 302 and Anctol Vs Manufacture Life Insurance Company (1899) AC 604, to cement his point that the Appellant herein is not liable to pay the decretal sum as there existed no contractual obligation under the Insurance (Motor vehicle Third Party Risks) Act.

35. As regards whether the institution of suit against a wrong Defendant was fatal and whether the court erred in admitting the negotiations in to evidence, Counsel relied on Section 23 (1) of the Evidence Act and submitted that the Trial Court relied on emails that were written on a without prejudice basis between the Plaintiff’s Counsel and the Appellant’s representative but failed to appreciate the evidence of the Appellant’s witness. Counsel placed reliance on the cases of Guardian Bank Ltd Vs Jambo Biscuits Kenya Ltd [2014] eKLR, and Al-Sabah Vs East African Fitness Limited (Civil Case E484 of 2020) [2020] KEHC to buttress his point on without prejudice basis.

36. As to whether the Honorable Court erred in Law and in fact in making a declaratory that the Appellant should satisfy the judgment in Mavoko CMCC 113 of 2019, it was the Counsel’s averment that the case filed in the lower court being Mavoko CMCC 113 of 2019 was against the said Abdigani Abdikadir Muse who remains a stranger to the Appellant and as such the Appellant did not concern itself with case as it lacked locus on the matter. Counsel maintained that for an insurer to be liable, there must be judgment entered against the its insured.

37. According to the Counsel for the Appellant, Courts have outlined the following as determinants of an insurance interest: a direct relationship between the insured and the subject matter; the relationship must have a risen out of legal or equitable right or interest in the subject matter; the interest bears any loss or liability arising in the event the loss or risk attaches; the insured’s right or interest in the subject matter must be capable of pecuniary estimation or quantification. Counsel opined that the Respondent did not satisfy any conditions laid down by the court hence according to the counsel, the Trial Court erred in making a declaration that the Appellant is liable to satisfy the judgment of Mavoko CMCC 113 of 2019.

38. On who should bear the cost of the Appeal, Counsel relied on Section 27 of the Civil Procedure Act which is to the effect that the costs of and incidental to all suits be in the discretion of the court or judge. Counsel urged that court award the Appellants the costs as against the Respondent.

39. Counsel invited the court set aside the judgment and decree of the trial court, make a finding that the Appellant is not obligated to indemnify the Respondent for liability arising from Mavoko CMCC No. 133 of 2019 and award the Appellant cost of the suit.

Respondent’s Submissions 40. The Respondent in her submissions dated 10th May,2023 and filed in court on 15th May,2023, Mr. Kangethe, counsel for the Respondent submitted that issue that arises for consideration is:

i. Whether the Appellant is obligated to honor the judgement obtained in the primary suit in Mavoko CMCC 113 of 2019. 41. In his submission to the stated issue, Counsel averred that proceedings herein reveals that the following facts are uncontroverted: First, there was a road traffic accident on 27/7/2019 involving motor vehicle registration no. KCC 820M insured by the Appellant under policy number 14/800/20803. Secondly, at the time of the said accident the registered owner of the said motor vehicle was per the certificate of official search at the registrar of motor vehicles was Abdigani Abdikadir Muse and further that prior to the institution of the suit, the Appellant was duly served with a statutory notice dated 14th November,2019.

42. Counsel submitted that whereas the Appellant acknowledges having insured motor vehicle KCC 820M at the time of accident, it contends that the policy was issued to Mr. Muoki Bosco and not Abdigani Abdikadir Muse and as such it is not liable for the accident. According to the counsel, this is the benchmark and center bolt of the instant appeal.

43. Counsel averred that the question worth determining is whether the Appellant under the provisions of the motor vehicle (Third party) Insurance Act is obligated to honor a judgment obtained against a defendant who is not their insured but in respect of an accident involving a motor vehicle insured by the same.

44. It was the Respondent’s case that the third party insurance is for the protection of third parties against damage or injury and not the owner of the said vehicle. Counsel averred that an insurer is enjoined to satisfy all claims arising from and attributed to the accident. Credence was placed on the case of James Akhatioli Ambundo Vs Lion of Kenya Insurance Co. Limited [2021] eklr, to buttress the point that law requires the insurer to satisfy the claim of the third party so long as the damage can be attributed to the accident vehicle.

45. Counsel further relied on the cases of Corporate Insurance Co. Limited Vs Makau Kaithu Musomba & Another [2018] ekrl, African Merchant Assurance Co. Limited Vs Jane Atieno [2014] and Canon Assurance Company Vs Peter Mulei Sammy [2020], to cement the point that the insurer cannot escape liability wherever the policy is valid and covers the risk which has attached.

46. It was urged by Counsel that the Appellant’s Appeal be dismissed with costs to the Respondent.

Determination/analysis 47. The Court considered the pleadings and evidence on record and written submissions by Parties/Counsel and the issues for consideration are whether the Appellant is liable to settle the Judgment of Mavoko CMCC No. 113 of 2019.

48. This being the first Appeal Court, its duty is well expressed in Selle vs. Associated Motor Boat Co [1986] EA 123.

49. The Court in discharging its mandate, this being a 1st Appeal, it is trite law, that the court evaluates and reconsiders the evidence on record and draws its own conclusion while bearing in mind that the Court has neither seen or heard the witnesses and should make allowances in this respect.See Peters vs. Sunday Post Ltd [1958] E.A.424; Butt vs. Khan [1981] KLR 349 & Kemfro Africa Ltd T/A Meru Express Service Gathogo Kanini vs. A. M. Lubia & Olive Lubia (1982-1988) 1 KAR 727.

50. The grounds of Appeal are that the Respondent had satisfied the conditions necessary for declaratory judgment under the Insurance (Motor Vehicle Third Party Risks) Act Cap 405, the Trial Court making a finding that the institution of a suit against a wrong defendant is not fatal as the Respondent admitted as evidence facts emanating from negotiations between the parties before filing the case.

51. In the instant Appeal is barred on the judgment by Trial Court of 12/9/2022. The Appeal is out of Trial Court Civil Case 981 of 2021 a declaratory suit filed against the Defendant/Appellant to indemnify the Plaintiff for liability arising from Mavoko CMCC 113 of 2019.

52. The Trial Court considered the facts that the demand letter and Statutory Notices bearing the Policy Number of Insurance were sent to the Appellants. The e-mail dated 11/8/2020 is where the Defendant/Appellant requested for the Plaintiff’s opinion on liability and quantum but negotiations did not fall through.

53. The Trial Court also considered the Defendant/Appellant’s defense and maintained Abdigani Abdikadir Muse was not their insured but it was one Muoki Bosco Busy. The defendant in Mavoko CMCC 113 of 2019, Abdigani Abdikadir Muse was not privy to the Policy of Insurance issued to the owner of motor vehicle Reg KCC 820 W. The Defendant/Appellant produced the Policy Schedule which revealed the accident motor vehicle was insured under Policy Number 14/800/0020803 from 16/32019 -15/3/2020 with Insurer as Muoki Bosco Busy. However, the Policy document was/is unsigned for and on behalf of Muoki Bosco Busy.

54. The accident that gave rise to the claim was by motor vehicle Reg. KCC 820W in the name of Abdigani Abdikadir Muse and this fact is not disputed. Therefore, ownership of the suit motor vehicle was not in dispute. The Respondent/Defendant was duly served with Statutory Notice dated 22/7/2019 which was produced as exhibit and that is also not disputed.

55. The Appellant relied on Section 10 of the Motor Vehicles Third Party Risks Act, that provides; ‘after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy….’ The Appellant reiterated that the Insurance Company is only liable for judgments entered against persons insured by its policy. In this case Abdigani Abdikadir Muse was not their Insured but Muoki Bosco Busy. The Appellant relied on the case of AIG Insurance Co Ltd vs Bernard Kiprotich Kirui [2022] eKLR; Lucena vs Crawford (1806) 2BOS PNR 269 which defined Insurable interest.

56. This Court did not have the benefit of proceedings of Mavoko CMCC 113 of 2019 which is the primary suit to consider. Presumably, the Police Abstract which contained details of the subject vehicle Reg Nos, name of the driver and details of Certificate of Insurance and the outcome of who was/is to blame for the accident or if the matter was/is pending under investigation was produced during trial. Secondly, the Copy of Records from Motor Vehicle Registration (NTSA) indicated the Insurance Company as APA-Defendant/Appellant. PW1 Jennifer Atieno Oliech in her Statement filed on 7/12/2021 indicated Policy of Insurance Number 14/800/20803 issued by the Defendant/Appellant to insure motor vehicle Reg. KCC820W Scania Lorry was registered in the names of Abdigani Abdikadir Muse according to records obtained from National Transport & Safety Authority (NTSA).

57. To that extent, the Plaintiff/Respondent had proved his case on a balance of probabilities as required under Section 107-109 of the Evidence Act. The Plaintiff /Respondent would not be privy to Insurance details other than what would be on the Certificate of Insurance and ownership from the NTSA.

58. The Trial Court’s judgment in Civil Case 113 of 2020 Jennifer Atieno Oliech vs Abdigani Abdikadir Muse of 18 10/2021 confirms service of Summons and Plaint and no appearance and defense was filed. Interlocutory judgment was entered on 20/9/2021 against the Defendant. See Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (suing as Administrator of the Estate of Pamela Agola Apopa) deceased [2020] eKLR.

59. The above case is in similar circumstances as the instant case; the Trial Court had to resolve who was the insured of motor vehicle Registration number KBS 306C Mitsubishi Lorry Truck as at the time of the material accident?‘The duty of the Insurance Company (insurers to satisfy or settle decrees against their insured is a statutory duty which stems from Sections 10(1) and (2) of the Insurance Act Cap 405 Laws of Kenya which provides;“10(1)(f) after a policy of insurance has been effected, judgement 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 policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall subject to the provision of this section, pay to the person entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any some payable in respect of interest on that sum by virtue of any enactment relating to interest on judgment.”

60. The Court considers the Defendant/Appellant’s appeal and finds that the Appellant ought to have presented documents/Insurance Policy and Policy Schedule of the Insured during Trial.

61. The said Abdigani Abdikadir Muse and/or Muoki Bosco Busy were not called as witnesses or their documentation and/or identity details presented to controvert details in the Police Abstract filled by the Police on visiting scene of the accident and/or information contained in the Copy of Records. The copy of Certificate of Insurance issued to Muoki Bosco Busy or Insurance Invoice or Payment Slip and/or Motor Vehicle LogBook or ownership documents of the Vehicle Reg KCC820W were not produced during Trial.

62. The Policy of Insurance executed between Insurer and Insured over the said vehicle was not produced to confirm or deny the Defendant/applicant’s position. The Insured’s Identity card/Passport and KRA PIN would have fortified the Appellant’s claim apart from the unsigned Insurance Policy Schedule of the fact that the vehicle Reg KCC 820 W was insured by Muoki Bosco Busy and not Abdigani Abdikadir Muse who was not privy to the Policy of Insurance issued with regard to motor vehicle Reg KCC 820 W. The adage ‘He who alleges must prove’ was not executed by proof provided by the Defendant/Appellant during Trial. The Respondent discharged their burden of proof upon production of Certificate of Insurance and Ownership documents form NTSA.

63. Upon re-evaluation of the evidence on record, this Court finds that in the absence of any evidence to controvert the fact of the road accident that occurred on 22/7/2019 between the deceased Kevince Ouma who was riding a motor bike as a pillon passenger along Katani Road within Syokimau and driver of motor vehicle Reg. KCC 820 W who hit the deceased injured him and he succumbed to his death through fatal injuries, the Judgment delivered in Mavoko Civil Case 113 of 2020 remains valid, legal and regular judgment of the Court as it is not set aside, reviewed or successfully appealed against, the impugned judgment of the declaratory suit, the Trial Court’s decision was based on evidence on record and the law applicable and is upheld.

DispositionThe appeal is dismissed with costs.

JUDGMENT DELIVERED DATED SIGNED IN OPEN COURT IN MACHAKOS ON 6TH NOVEMBER, 2023 (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGEIN THE PRESENCE OF:Mrs Mwangangi - for the AppellantMr. Wanyama - for the RespondentPatrick/geoffrey - Court Assistant(s)COURT: Stay of execution of 30 days granted. Typed copy of the judgment to be availed.M.W. MUIGAIJUDGE6/11/2023