https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7689

Britam Insurance Company (K) Ltd v Mwara (Civil Appeal E022 of 2025) [2026] KEHC 7689 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7689 (KLR) Republic of Kenya In the High Court at Embu Civil Appeal E022 of 2025 RM Mwongo, J June 3, 2026 Between Britam Insurance Company (K) Limited Appellant and Nthiga Nyaga Mwara Respondent (Appeal arising from the decision of Hon. J.A. Otieno in Embu CMCC no. E084 of 2021 delivered on 11th December 2023) Judgment The Appeal 1.The appellant filed a memorandum of appeal dated 04th March 2025 seeking the following orders:1.That the appeal be allowed with costs;2.The judgment/decisions of the Learned Trial Magistrate delivered on 18th July 2024 be set aside and/or varied and/or quashed;3.The Honourable Court to deliver a fresh judgment and/or reassessment of liability and quantum;4.This Honourable Court do adjudicate and determine this matter and enter a just judgment in light of the evidence and submissions on record;5.In the alternative, this Honourable Court directs the award of liability and general damages be assessed afresh in the subordinate court;6.The costs be awarded to the Appellant; and7.Such further orders may be made as this Honourable Court may deem fit. 2.The appeal was premised on the grounds that:1.The Learned Trial Magistrate erred in law and fact by failing to analyze all the relevant evidence availed at the trial on the declaration of liability;2.The Learned Trial Magistrate erred in law and fact by failing to consider the particular circumstances surrounding the occurrence of the accident;3.The Learned Trial Magistrate erred in law and fact by failing to consider the pertinent issues raised by the Appellant in submissions;4.The Learned Trial Magistrate erred in law and fact by failing to appreciate the Appellant's contentions and arguments;5.The Learned Trial Magistrate erred in law and fact by failing to apply the correct legal principles determining the matter;6.The Learned Trial Magistrate misdirected himself by considering erroneous facts; and7.Consequently, the decision of the Learned Trial Magistrate constituted a miscarriage of justice. Background 3.Through Embu MCCC E148 of 2022, Mary Wambugu E. Njagi (Suing as the administrator of the estate of Eugene Kiarie Njagi (dcd)) sued the appellant and another, seeking judgment against them for general damages under the Fatal Accidents Act and the Law Reform Act, Special damages of Kshs.550/=, costs of the suit plus interest. It was the plaintiff’s case that the appellant’s motor vehicle was involved in an accident along Embu-Meru Highway causing the death of the deceased. In that substantive suit, the court entered judgment in favour of the plaintiff as follows:Law Reform Act:-1.Pain and suffering - Kshs. 20,000.002.Loss of Expectation of Life - Kshs. 100,000.00Fatal Accidents Act:-3.Loss of dependency - Kshs.600,000.00Add Special Damages - Kshs.550.00Total Kshs.720,550.00 4.Through the declaratory suit, Runyenjes MCCC E111 of 2022, the appellant sought for a declaration that the Plaintiff is not liable to make payments, bear liability or indemnify the Defendant under the insurance policy cover in respect of any claim in respect to the death or bodily injury to any person, pedestrian, road user or passenger arising from the accident that occurred on the 20th April 2019 along Embu- Meru Highway involving motor vehicle KCJ 480A make Isuzu D Max; and costs and interests from the date of filing the suit. 5.It was the appellant’s case that following the accident involving the respondent’s motor vehicle, its investigations revealed that the accident was caused by a fault in the mechanical braking system of the motor vehicle which was the result of poor maintenance of the motor vehicle. That in the circumstances, the respondent breached his duty of care owed to his insurer under the insurance contract. In that case, the insurer chose to avoid the contract. 6.The respondent filed a statement of defence through which he denied the averments made in the plaint. He also filed a notice of preliminary objection which was dismissed. The Evidence in the trial court 7.PW1 was Michael Mwangi Njau, a private investigator at Third Eye Assessors. He testified that he investigated a case of an accident involving a motor vehicle and a pedestrian. He visited the scene and interviewed witnesses. The findings of his investigation were that the accident occurred due to brake failure. He attempted to produce the report of his findings as evidence but the court upheld an objection and ordered that the documents be excluded. 8.In cross-examination, the witness said that he holds an IRA licence and he investigated the case, even though he did not witness the accident. That upon speaking to the witnesses, he was able to generate a sketch plan of the scene. He stated that the brakes failed as a result of a mechanical fault in the vehicle. That was one of the reasons why he asked the insurer to decline to cover the insured. 9.PW2 was Erick Otieno Adoy, an assistant claims officer at Britam Insurance. He testified that the respondent held a valid insurance certificate with the appellant for the motor vehicle registration number KCJ 480A. That the named motor vehicle was involved in an accident and upon investigation, it was discovered that the vehicle suffered a mechanical failure leading to failure of the braking system. That the accident could have been avoided if the respondent had serviced his vehicle before having it travel from Nairobi to Embu and back. 10.He stated that Section 1 of the Insurance Policy indicated that the insurance would not cover injuries caused by failed braking systems among other things. That the insurer should be released from its obligations under the policy because of the failed braking system on the vehicle. In cross-examination, he stated that the cover was comprehensive and valid at the time of the accident. That he did not have a copy of the policy document and that the respondent was in breach of the policy. 11.DW1 was the respondent who stated that his vehicle had been serviced one week before taking the journey and that it was in good repair. He stated that he had the records but they had been seized by the landlord where his business is housed. That during the accident, the vehicle landed in a dich, causing the brake fluid to leak. On cross-examination, he stated that he is the owner of the vehicle but he was not the one driving it at the time of the accident. He took out his insurance policy through Sidian Bank as the agent. Determination of the Trial Court 12.The trial court found that the appellant referred to an insurance policy but did not provide a copy of it as evidence. That even though the facts were straightforward, without the policy being produced in court, there is no way for the court to verify the provisions mentioned in the policy document which would give the appellant ground to avoid the policy. The court found that it was not proved that a policy did, in fact, exist. The claim was dismissed on this basis. Submissions on Appeal 13.This appeal was canvassed by way of written submissions. 14.The appellant submitted urging the court to re-examine the evidence and reach its own findings as was stated in Peters v Sunday Post Ltd [1958] EA 424. It relied on Sections 10 (1) and (4) of the Insurance (Motor Vehicles Third Party Risks) Act and argued that the respondent could only be indemnified if he was not in breach of the policy. It argued that based on the evidence adduced, the motor vehicle was not maintained as required of the respondent according to the policy. Further reliance was placed on the case of David G Mbugua v Phoenix of Africa Assurance Co Ltd [1979] KEHC 2 (KLR) and it urged the court to allow the appeal. 15.The respondent submitted that the appellant failed to prove its claim before the trial court according to section 107 and 109 of the Evidence Act. He relied on the case of Koinange & 13 others v Charles Karuga Koinange [1986] KEHC 3 (KLR) and stated that he who alleges must prove. That in this case, proof was in the form of an insurance policy, a contract which was not produced as evidence. 16.He also relied on Mwanasokoni v Kenya Bus Services Ltd [1985] KECA 82 (KLR) where the court held that a case must be proved using credible evidence. Further reliance was placed on the case of Trust Bank Limited v Paramount Universal Bank Limited & 2 others [2009] KEHC 4030 (KLR). He urged the court to uphold the findings of the trial court since there was no basis for overturning its findings. Issue for Determination 17.The core issue for determination is whether the trial court erred in its findings and determination. Analysis and Determination 18.As a first appellate court, it is this court’s duty to re-examine the evidence adduced before the trial court. In the case of Williamson Diamonds Ltd and another v Brown [1970] EA 1, the court held that:“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.” 19.Following the issuance of a decree against the respondent in Embu MCCC E148 of 2022 for the sum of Kshs.750,500/=, the appellant, who is the respondent’s insurer, filed a declaratory suit in Runyenjes MCCC E111 of 2022 seeking to avoid covering the decretal amount ordered. Its case was that after the accident, PW1 examined the vehicle and concluded that the mechanical fault that resulted in failing of brakes which was the cause of the accident could have been avoided if the respondent has kept the vehicle in good repair. PW1 stated that he was the one who advised the insurer to avoid paying the decretal amount. His assessment report was not admitted into evidence following an upheld objection. 20.PW2 was an officer with the appellant. He testified that section 1 of the insurance policy provides that the cover does not extend to accidents resulting from faulty brakes. Even though he alluded to an insurance policy document as a contract in this case, he did not have a copy of it, neither was he able to produce it in court. DW1, whose vehicle was insured by the appellant also did not have a copy of the policy document. 21.In essence, therefore, the argument that the insurance company could avoid the contract in the terms of the policy document, is unsubstantiated. This is the same dilemma that the trial magistrate found herself in, leaving her no choice but to dismiss the appellant’s claim, since none of its allegations were proved. The burden of proof lay on the appellant to prove on a balance of probabilities that there was an insurance policy which would enable the insurance to avoid liability under Sections 10 (1) and (4) of the Insurance (Motor Vehicles Third Party Risks) Act. 22.The burden of proof lies on the alleging party. This is stated clearly in Sections 107-109 of the Evidence Act, thus:“ 107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 23.The standard of proof in civil cases, is on a balance of probabilities. In the case of Ignatius Makau Mutisya v Reuben Musyoki Muli [2015] KECA 612 (KLR) the court stated;“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 more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un) convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” Conclusion and Disposition 24.In the present case, the appellant did not even give the court the chance to apply the principles of evidence in the above case because no evidence was provided at all for consideration by the court. In the circumstances, this court as the first appellate court, in reconsidering the available evidence cannot find proof on a balance of probabilities that there was a written contract in the form of an insurance policy. It was necessary that the insurance policy document be produced as evidence since the appellant was relying on its provisions to support its case for avoidance. 25.Accordingly, in the absence of proof, the appeal herein is hereby dismissed with costs to the respondent. 26.Orders accordingly. DELIVERED, DATED AND SIGNED AT EMBU HIGH COURT THIS 3RD DAY OF JUNE, 2026.R. MWONGOJUDGEDelivered in the presence of:Nyatta for AppellantOmondi holding brief for Ikua for RespondentsFrancis Munyao - Court Assistant