https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10050

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEAL NO. E157 OF 2025** **BONFACE CHACHAKIN………………………………..….APPELLANT** **VERSUS** **DIRECTLINE ASSURANCE COMPANY LIMITED….RESPONDENT** **(*Being an appeal against the judgment and order of the Honourable Senior Resident Magistrate Caroline Ndumia on the 22nd August 2023 in the Small Claims Court at Nairobi in SCCCOMM No. E4664 of 2023)*** **JUDGMENT** 1. Before this Court is a Memorandum of Appeal dated 30th August 2023 seeking the following orders: 2. *That the appeal be allowed.* 3. *That the court sets aside the judgment and the orders of the Honourable Senior Resident Magistrate Caroline Ndumia issued on 22nd August 2023 in SCCCOMM No. E4664 of 2023 and in place thereof make appropriate orders in respect of the claim.* 4. The grounds of appeal as set out in the memorandum of appeal are: 5. *That the learned magistrate erred in law and in fact in finding that the appellant did not serve the respondent with a statutory notice as required under section 10 (2) (a) of the Insurance (Motor Vehicle 3rd Parties) Act, CAP 405.* 6. *That the learned magistrate erred in law and in fact by misapplying the law and misapprehending the facts. That the learned magistrate failed to appreciate the provisions of section 10 (2) (a) of CAP 405, which allow service of a statutory notice to the respondent before or within 14 days after institution of the suit against the insured of the respondent herein.* **BACKGROUND OF THE APPEAL** 1. The claimant instituted his claim vide a statement of claim dated 25th September 2023 against Grace Wanjiku Njeri. His claim was for compensation for personal injury as a result of an accident that occurred on 6th October 2022. The claimant sought general damages for pain and suffering, special damages of Kshs 3000/=, future medical costs of Kshs 80,000/=, cost of the suit and interest. 2. In response, the respondent filed a response to the statement of claim dated 24th October 2023. The respondent denied the contents of the statement of claim. The respondent blamed the claimant for the occurrence of the accident on the following grounds: riding without due regard to other road users, riding at an excessive speed and suddenly encroaching onto the path of the respondent’s motor vehicle. The respondents urged the court to dismiss the respondent’s claim with costs. 3. At trial, PW-1 testified on oath and produced his witness statement and his evidence in chief. He produced PEX2 to PEX6 as the claimant’s exhibits. Upon cross-examination, he stated that he was not overtaking using the motorbike. 4. Both parties filed written submissions. Both parties did not dispute the nature of the injuries. The claimant urged the court to award general damages of Kshs 850,000/= whereas the respondent submitted that an award of Kshs 520,000/= would be more than sufficient. 5. In its judgment, the court awarded the claimant Kshs 800,000/= as damages for pain and suffering as per the judgment delivered by Honourable Z.K Kagenyo on 26.04.2024 (page 16 of the record of appeal). 6. Afterwards, the appellant filed a declaratory suit against the respondent in this appeal to realize the fruits of the judgment (SCCCOMM E4664 of 2023). The learned magistrate dismissed the declaratory suit on the basis that the appellant had failed to comply with section 10 (2) of the Insurance (Motor Vehicle Third Party Risks) Act. **PROCEEDINGS AT THE HIGH COURT** 1. The appellant served the respondent. However, the respondent neither entered an appearance nor filed a statement of defence. 2. The court directed that the application be canvassed by way of written submissions. 3. The appellant filed written submissions dated 19th January 2026. The appellant submitted that the respondent was served with the statutory notice dated 18th September 2022 and received on 22nd November 2022. The appellant submitted that the statutory notice was served within the timeline contemplated under section 10 (2) of CAP 405. 4. The appellant submitted that the magistrate misapplied the law by dismissing the declaratory suit on the basis that the statutory notice filed in the primary suit did not indicate receipt by the respondent. The appellant submitted that the stamp on the statutory notice was the same stamp used by the respondent to receive all other documents served upon them. 5. The appellant submitted that the respondent did not challenge the authenticity of the stamp used or allege fraud thereof. 6. The appellant submitted that CAP 405 does not prescribe any format to be used. He submitted that the sole intention of the notice is to inform the insurance company of the intention to sue and a potential liability. The appellant submitted that he had fully complied with the requirements outlined in CAP 405. 7. The appellant submitted that the respondent contended that it was a stranger to the insurance policy and that the same had been obtained fraudulently. The appellant submitted that the respondent’s defence was untenable before a third party. 8. The appellant urged the court to set aside the judgment delivered on 22nd August 2023 and enter judgment in favour of the appellant for the decretal sum of Kshs 643,583.70 together with interest from the date of the judgment and the costs of the declaratory suit. **ANALYSIS AND DETERMINATION** 1. I have carefully considered this memorandum of appeal, the record of proceedings before the lower court, as well as the written submissions filed by the appellant. 2. The role of the first appellate was reiterated in the case of **Gitobu Imanyara versus Attorney General (2016) eKLR** to be as follows: ’*’An appeal to this court is by way of a retrial, and the principles upon which this court acts in such an appeal are well settled. This court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect*.’’ 1. The issue arising for determination before this court is: 2. **Whether there was service of the statutory notice required under section 10 (2) (a) of CAP 405 Laws of Kenya?** 3. **Whether the appellant is entitled to the reliefs sought?** 4. This appeal lies from the Small Claims Court. It is prudent to note that Section 38 of the Small Claims Court Act 2016, provides that appeals to the High Court shall be limited only to matters of law. 5. **Section 10 (2) (a)** **of CAP 405** provides: ‘*’No sum shall be payable by an insurer under the foregoing provisions of this section in respect of any judgment unless before or within 30 days of the commencement of the proceedings in which judgment was given, the insurer had notice of the bringing of the proceedings’’* 1. The above provision is a substantive legal requirement that serves to ensure third parties who have suffered injury or loss due to the acts or omissions on the part of an insured motor vehicle is assured of compensation in the event that the owner of the motor vehicle is unable to settle the claim. 2. In the case of Kimani **Gikonyo versus Gateway Insurance Company (2017) eKLR,** it was held that there is no standard form that the notice should take. It was reiterated that the main purpose of the notice is to alert the insurer of a potential claim and liability, to enable the insurer take steps to protect its interest. 3. Based on the above authority, in as much as there is no standard form, the document served upon the respondent should contain sufficient particulars as envisaged under section 10 (2) (a) of Cap 405 to enable the insurer fully comprehend the nature of the claim and the extent of liability. 4. The notice should be served within the stipulated timeframe. In instances where the statutory notice is not served prior or within the outlined timeframe of the suit being filed, then the insurer is absolved from any legal liability arising from third parties. 5. As such, service of the statutory notice upon the respondent is a legal requirement and an obligation that cannot be waived at all. 6. The appellant submitted that he served the statutory notice dated 25th September 2023 upon the respondents. The respondents have not objected to the service. The trial magistrate dismissed the declaratory suit on the basis that the statutory notice was not properly served upon the respondents. The appellant submitted that the learned magistrate held that the statutory notice filed in the primary suit was not stamped by the respondents as evidence of receipt whereas the one filed in the declaratory suit was stamped indicating it was received. 7. From the record of appeal, at page 49, there is a statutory notice dated 25th September 2023. The statutory notice does not have a stamp but that does wash away its validity. 8. Furthermore, at page 67 of the record of appeal, the appellant filed a statutory notice dated 25th September 2025 and received on 27th September 2023 with the respondent’s stamp. 9. The primary suit from which the declaratory suit leading to this appeal emanated was filed on 26th September 2023. As such, the received copy of the statutory notice (page 67 of the record of appeal) indicates that the notice was served within the outlined timeline under the Act. 10. In light of the foregoing I find that the learned trial magistrate erred in law by holding that the appellant did not serve the statutory notice as required. 11. The upshot is that this court finds the appeal merited and allows it in the following terms: 12. ***The appeal is allowed.*** 13. ***An order is hereby issued setting aside the judgment and the orders of the Honourable Senior Resident Magistrate Caroline Ndumia issued on 22nd August 2023 in SCCCOMM No. E4664 of 2023.*** 14. ***Judgment is entered in favour of the appellant for the decretal sum of Kshs 643,583.70/= against the respondent with interest at court rate from the date of filing suit in the lower court until payment in full.*** 15. ***The appellant is awarded the costs of the appeal and of the suit before the lower court.*** ***Dated, signed and delivered virtually at Nairobi this 2nd day of July 2026.*** **DAVID MBURU** **JUDGE**