https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8646

Ndambuki v Directline Assurance Company Ltd (Civil Appeal E365 of 2025) [2026] KEHC 8646 (KLR) (Civ) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8646 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E365 of 2025 BW Murunga, J June 18, 2026 Between Betty Ndambuki Appellant and Directline Assurance Company Limited Respondent (Being an appeal from the Judgment of Hon. B. Kasavuli, Senior Principal Magistrate, delivered on 28th February 2025 in Milimani CMCC No. E1149 of 2023) Judgment Background 1.This is a first appeal from the judgment of Hon. B. Kasavuli, Senior Principal Magistrate, delivered on 28th February 2025 in Milimani CMCC No. E1149 of 2023. 2.The suit before the trial court was a declaratory suit brought by the Appellant, Betty Ndambuki, against the Respondent, Directline Assurance Company Limited, under section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405 of the Laws of Kenya. 3.By her plaint dated 13th March 2023, the Appellant sought a declaration that the Respondent is liable to satisfy the judgment and decree entered in her favour in Milimani CMCC No. 4638 of 2019, together with costs and interest at the rate of 14% per annum from the date of that judgment. 4.The genesis of the dispute is a road traffic accident that occurred on 23rd January 2019 involving motor vehicle registration number KCF 124A. In the primary suit, Milimani CMCC No. 4638 of 2019, the Appellant sued the owner of that motor vehicle, Jiinue Company Limited, and obtained judgment in her favour for a decretal sum inclusive of costs and interest. The decree having gone unsatisfied, the Appellant instituted the present declaratory suit, contending that the Respondent was the insurer of motor vehicle KCF 124A at the material time and is therefore obliged to settle the decretal sum. 5.The Respondent resisted the claim on the single ground that, as at the date of the accident, there was no valid policy of insurance in force in respect of the said motor vehicle. After a full hearing, the trial court agreed with the Respondent and dismissed the suit, prompting this appeal, which is founded on five grounds set out in the Memorandum of Appeal dated 26th March 2025 and which, in substance, all assail the finding that the Respondent is not liable to satisfy the primary decree. The Appellant’s submissions 6.In her written submissions dated 19th March 2026, the Appellant faulted the trial court for failing to appreciate the evidentiary significance of the police abstract produced in the proceedings. According to the Appellant, that abstract recorded policy number 00051119 in respect of motor vehicle KCF 124A and reflected an insurance cover that was valid as at the date of the accident. 7.It was submitted that the particulars on a police abstract are extracted from the Occurrence Book, which in turn captures the details appearing on the insurance sticker affixed to the accident vehicle at the time of reporting. 8.Since the accident was reported on the very day it occurred, under OB Number OB/94/23/1/19, the Appellant urged that the sticker, and hence the policy, must have been valid on 23rd January 2019, and that the certificate displayed on the vehicle was due to expire much later, on 27th February 2019. 9.The Appellant further submitted that the policy documents relied upon by the Respondent were self-generated documents capable of being edited to fit the Respondent’s narrative, and that the Respondent had conspicuously failed to produce the primary proof of cover, namely the certificates of insurance it claimed to have kept renewing for its insured. 10.It was urged that, in those circumstances, the documentary evidence tendered by the Respondent ought to have been treated with circumspection, and that the uncontroverted fact of a valid judgment in the primary suit, taken together with the police abstract, was sufficient to fix the Respondent with liability under section 10 of Cap 405. 11.The Appellant accordingly prayed that the appeal be allowed with costs and interest from the date of filing the lower court suit. The Respondent’s submissions 12.The Respondent, in its written submissions dated 15th April 2026, framed the appeal around a single issue: whether motor vehicle KCF 124A had a valid insurance policy issued by the Respondent in place as at 23rd January 2019. It was submitted that the burden of proving the existence of such a policy lay squarely on the Appellant and was never discharged. 13.The Respondent relied on the testimony of its sole witness, DW1, the Deputy Claims Manager, who explained that cover for the insured was issued on a monthly basis, and produced the Respondent’s list and supplementary list of documents demonstrating that the policy ran for the discrete periods 8th April 2018 to 8th May 2018, 12th December 2018 to 11th January 2019, and 28th January 2019 to 27th February 2019, the accident of 23rd January 2019 having fallen outside each of those periods. 14.The Respondent added that it had, on several occasions before and after the filing of the primary suit, written to the Appellant’s advocates disclaiming cover. 15.The Respondent further pointed to the concessions extracted from the Appellant’s own witnesses on cross-examination. PW2, the police officer, admitted that he was not the author of the abstract, could not vouch for the validity of its contents, did not produce the Occurrence Book, and accepted that such particulars are ordinarily derived from the certificate of insurance, which was never produced. PW3, the representative of the Association of Kenya Insurers, conceded that the letter he relied upon bore no policy period and that the validity of cover could only be ascertained from the Respondent. 16.Relying on a line of authority to the effect that a police abstract is not conclusive proof of a contract of insurance, and that proof of cover lies in the certificate or policy document, the Respondent urged the court to find that the trial magistrate properly applied the law to the facts and to dismiss the appeal with costs. Issue for determination 17.I have considered the record of appeal, the judgment of the trial court, the grounds of appeal and the rival submissions of counsel. Although the Memorandum of Appeal raises five grounds, they collapse into a single, decisive question, namely:a.Whether the learned trial magistrate erred in finding that motor vehicle registration number KCF 124A was not covered by a valid policy of insurance issued by the Respondent as at 23rd January 2019, and that the Respondent is therefore not liable to satisfy the decree in Milimani CMCC No. 4638 of 2019. Analysis and determination 18.This being a first appeal, the duty of this court is well settled. It is to reconsider the whole of the evidence on record, to subject it to a fresh and exhaustive scrutiny, to re-evaluate it and to draw its own conclusions, while bearing in mind that, unlike the trial court, it neither saw nor heard the witnesses testify. 19.The locus classicus is Selle & Another v Associated Motor Boat Company Limited & Others [1968] EA 123, and the principle was restated by the Court of Appeal in Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, where the court described the primary role of the first appellate court as being to re-evaluate, re-assess and re-analyse the record and then to determine whether the conclusions of the trial court should stand. It is in that light that I approach this appeal. 20.The Appellant’s claim is anchored on section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act, Cap 405. That provision imposes upon an insurer the duty to satisfy a judgment obtained against a person insured by it, notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy. The provision states that:“ Duty of insurer to satisfy judgements against persons insured:(1)If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of Section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.No sum shall be payable by an insurer under the foregoing provisions of this section –(a)in respect of any judgment, unless before or within fourteen days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings; or(b)in respect of any judgment, so long as execution thereon is stayed pending an appeal; or(c)in connexion with any liability if, before the happening of the event which was the cause of the death or bodily injury giving rise to the liability, the policy was cancelled by mutual consent or by virtue of any provisions contained therein, and either(i)before the happening of the event the certificate was surrendered to the insurer, or the person to whom the certificate was issued made a statutory declaration stating that the certificate had been lost or destroyed; or(ii)after the happening of the event, but before the expiration of a period of fourteen days from the taking effect of the cancellation of the policy, the certificate was surrendered to the insurer, or the person to whom the certificate was issued made such a statutory declaration as aforesaid; or(iii)either before or after the happening of the event, but within a period of twenty – eight days from the taking effect of the cancellation of the policy, the insurer has notified the Registrar of Motor Vehicles and the Commissioner of Police in writing of the failure to surrender the certificate.(3)…………(4)No sum shall be payable by an insurer under the foregoing provisions of this section if in 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 the 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 on that ground, that he was entitled so to do apart from any provisions contained in it: Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgment obtained in proceedings commenced before the commencement of that action, unless before or within fourteen days after the commencement of that action he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the non-disclosure or false representation on which he proposes to rely, and any person to whim notice of such action is so given shall be entitled, if he thinks fit, to be made a party thereto. 21.The architecture of the section, however, presupposes the existence of a policy: the duty arises only where there has, in the first place, been a policy of insurance effected covering the relevant liability. 22.The test for the accrual of liability under the section was distilled by Kemei J in UAP Insurance Co. Ltd v Patrick Charo Chiro [2021] eKLR into four cumulative requirements:“Firstly, that the motor vehicle in question was insured by the appellant; Secondly, that the respondent has a judgement in his favour against the insured; Thirdly, that statutory notice was issued to the insurer either at least 14 days before the filing of the suit wherein judgement has been obtained or within 30 days of filing the suit where judgement has been obtained and finally the respondent was a person covered by the insurance policy. See Roseline Violet Akinyi v Celestine Opiyo Wangwau (2020) eKLR and Stephen Kiarie Chege v Insurance Regulatory Authority & Another (2009) eKLR.” 23.As the court observed in The Monarch Insurance Company Ltd v Magrate Mutave Peter [2020] eKLR, the first and foundational of these conditions precedent is that, before the judgment is obtained, there must have been a policy of insurance in effect. 24.It follows that the existence of a valid policy at the material time is no peripheral matter; it is the very foundation of the cause of action. In a declaratory suit of this nature, the burden of establishing that foundation rests on the plaintiff, in keeping with the elementary rule codified in sections 107 to 109 of the Evidence Act, that he who asserts must prove. The Appellant therefore came to the trial court bearing the onus of proving, on a balance of probabilities, that motor vehicle KCF 124A was covered by a Directline policy on 23rd January 2019. Whether she discharged that onus is the heart of this appeal. 25.The Appellant’s principal plank is the police abstract. There is respectable authority for the proposition that a police abstract is, of itself, capable of proving the existence of insurance cover. In APA Insurance Company Limited v George Masele [2014] eKLR the court treated the abstract as sufficient proof of insurance unless and until disproved; in Richard v Njeru (Civil Appeal 181 of 2021) [2022] KEHC 17083 (KLR) the court relied on a police abstract to find that a valid policy subsisted, reasoning that to insist on production of the policy document itself would be to raise the civil standard of proof to that obtaining in criminal trials; and in Gahir Engineering Works Limited v Rapid Kate Services Limited & Another [2018] eKLR, Githua J held that the failure to produce the policy document, though material, was not fatal, since a party need only prove its case on a balance of probabilities and not beyond reasonable doubt. 26.Taken at their highest, these authorities lend weight to the Appellant’s contention that the abstract, recording as it did policy number 00051119, was enough to shift the evidential burden onto the Respondent. 27.That, however, is not the whole of the picture. An equally substantial body of authority cautions that a police abstract is not conclusive proof of a contract of insurance and cannot, without more, displace the policy document or certificate of insurance, which remain the best evidence of cover. 28.In Richard Makau Ngumbi & Another v Cannon Assurance Company Limited [2016] eKLR the court declined to treat a police abstract as conclusive in the absence of a certificate of insurance or policy document. In Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa [2020] eKLR the court emphasised that it is the certificate of insurance, required by section 9 of Cap 405 to be displayed on the vehicle, that constitutes prima facie evidence of cover. And in a decision directly in point, involving this very Respondent, Directline Assurance Company Limited v Kibe (Civil Appeal 315 of 2022) [2024] KEHC 8926 (KLR), the court held that a trial court errs where it relies on a police abstract while disregarding the contents of an insurance policy document produced by the insurer, observing that an abstract is ordinarily completed by a police officer who is not privy to the contract and on the strength of information supplied by third parties, and so cannot be taken as absolute proof of the existence of a contract in disregard of the policy. 29.The apparent tension between these two lines of authority is, in my respectful view, more superficial than real, and it dissolves once the police abstract is understood for what it is: a piece of evidence that may raise a rebuttable presumption of cover, but which is not insulated from contradiction. 30.Where nothing is placed on the other side of the scale, an abstract may well carry the day. But where the alleged insurer appears and adduces credible evidence to the contrary, the abstract falls to be weighed against that evidence rather than treated as dispositive. The question in the present case, therefore, is not whether the abstract was admissible or relevant, it plainly was but whether, on the totality of the evidence adduced at a full trial, it was disproved. 31.On that question, the record speaks with some clarity. It was not in dispute that the Respondent had at one time insured motor vehicle KCF 124A under policy number 00051119 in the name of Jiinue Company Limited; that is the very policy number appearing on the police abstract. What the Respondent disputed, and set out to prove, was that the cover was in force on 23rd January 2019. 32.To that end it produced its list and supplementary list of documents establishing that cover was issued on a monthly cycle and ran for discrete periods, the last of which before the accident expired on 11th January 2019, with the next renewal taking effect only at 2.17 p.m. on 28th January 2019 and running to 27th February 2019. The accident happened on 23rd January 2019. 33.The learned magistrate did not accept this assertion uncritically; he compared the policy number on the abstract with that on the Respondent’s documents, found them to be one and the same, examined the extended policy issued on 28th January 2019, and concluded that, as at the date of the accident, the vehicle had no valid cover. That was a finding grounded in the documents, not in mere assertion. 34.Against this, the Appellant’s two answers do not, on scrutiny, hold. The first, that the particulars on the abstract were drawn from a sticker that must have been valid on the date of reporting, founders on the Appellant’s own evidence. PW2, the police officer, candidly admitted that he was not the author of the abstract, that he could not confirm the validity of its contents, that he neither had nor produced the Occurrence Book from which the information was said to derive, and that such particulars are in any event obtained from the certificate of insurance, a document the Appellant never produced. 35.The argument is further weakened by the Appellant’s own submission that the policy reflected on the abstract was to expire on 27th February 2019; for that is precisely the renewal period which, on the Respondent’s documents, commenced on 28th January 2019, after the accident, and a sticker for a period yet to begin could not have been displayed on the vehicle on 23rd January 2019. 36.The second answer that the Respondent’s documents are self-generated and liable to manipulation is no more than a bare assertion. The documents were the Respondent’s business records, produced and spoken to by its claims manager and tested in cross-examination; their authenticity was not dislodged by any cogent evidence, and a litigant cannot defeat documentary proof merely by suggesting, without foundation, that it might have been edited. 37.There is, moreover, a deeper difficulty for the Appellant. The onus was hers to prove the existence of cover, and the surest proof, the certificate of insurance or the policy document for the period embracing 23rd January 2019, was never placed before the court. On a fair re-evaluation of the whole of the evidence, I am satisfied that the Appellant did not discharge the burden of proving that a valid policy subsisted on the date of the accident. 38.Having reached that conclusion independently, I find no basis for disturbing the finding of the trial court. An appellate court will not interfere with a trial court’s findings of fact unless they are shown to be based on no evidence, or on a misapprehension of the evidence, or unless the trial court is shown to have acted on wrong principles. Disposition 39.For the foregoing reasons, the appeal is devoid of merit. Accordingly, I make the following orders:a.The appeal is hereby dismissed.b.The judgment and decree of the trial court in Milimani CMCC No. E1149 of 2023, delivered on 28th February 2025, are upheld.c.Each party shall bear its own cost.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE 2026.BENARD MURUNGA WAFULAJUDGEIn the presence of:Khafumi for the AppellantAwino for the RespondentKevin Babu - Court Assistant