https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8418

CIC General Insurance Ltd v Hamis (Civil Case E002 of 2023) [2026] KEHC 8418 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 8418 (KLR) Republic of Kenya In the High Court at Eldoret Civil Case E002 of 2023 JRA Wananda, J May 22, 2026 Between Cic General Insurance Limited Plaintiff and Catherine Ramoha Hamis Defendant Judgment 1.This is what is normally referred to as an insurance declaratory suit. 2.Plaintiff’s claim is contained in the Plaint dated 26/04/2023, filed through Messrs Mose, Mose & Mose Advocates. The Judgment sought is as follows:a.A declaration that the Plaintiff is not liable or bound to make payments or indemnify the Defendant under Insurance Policy cover number 14/080/1/000957/2022/05 in respect of any claim in respect to death or bodily injury to any person or pedestrian arising out of the road traffic accident which occurred on 6th October 2022 along Eldoret-Nakuru Highway at Bayete area involving the Defendant’s motor vehicle registration number KDH 047M and the Third Party motor vehicle registration number KCH 003B.b.Costs of the suit.c.Interest on (b) above. 3.In the Plaint, it was pleaded that on 5/05/2022, the Plaintiff, at the Defendant’a request, and in reliance of the Defendant’s declarations and representations made in the Insurance Proposal Form, and believing the same to be true, issued the Defendant with the Insurance Policy Cover referred to above, only upon payment, for the period 5/05/2022 - 4/05/2023 in respect to the said motor vehicle (hereinafter referred to as “the lorry”). It was pleaded that it was an express and implied term of the Policy that should any accident occur, the Plaintiff would not be bound to indemnify the Defendant if the lorry is carrying more than its authorized capacity. It was pleaded further that on 6/10/2022, the lorry was involved in the accident aforesaid, as a result whereof 2 passengers died while another 11 sustained serious injuries. Names of the affected persons were then listed, and it was pleaded that the Plaintiff is not liable to indemnify the Defendant for any loss or damages claimed or to be claimed by the passengers or their estates for reason of breach, by the Defendant, of the terms and conditions of the Policy cover. Particulars of breach listed, includes, inter alia, permitting use of the lorry to ferry passengers in excess of the policy limit authorized to carry. 4.In response, the Defendant filed the Statement of Defence dated 14/06/2023 filed through Messrs Millimo P.M. & Associates Advocates. The Defendant pleaded that on 4/10/2022, the lorry left Chwele Market within Bungoma County at the request of a trader who wanted to buy tomatoes in Mwea within Kirinyaga County, and the same was being driven by one Peter Simiyu with the turn-boy by the name Silas Wekesa, and the trader named Caro Nanjala Munialo. The Defendant pleaded further that the lorry was parked with crates of tomatoes as it left Chwele Market as several traders had pooled together their finances for the same, and that on 6/10/2022, while the lorry was being driven back to Chwele loaded with the tomatoes, it was involved in an accident at Bayete area along Nairobi-Eldoret Highway whereof both the said trader, Caro Nanjala Munialo and the turn-boy Silas Wekesa died, while the driver, Peter Simiyu, was injured. It was pleaded further that the Defendant reported the accident to the Plaintiff which towed the lorry to its yard for inspection and repair, and the Plaintiff found the lorry to be a write-off and was to replace it. The Defendant then pleaded that the other names of alleged passengers listed in the Plaint, other than the 3 named herein, were not on board the lorry, and that some of them have, through Affidavits, stated as such. It was also pleaded that efforts to obtain evidence to support the allegation that there were excess passengers aboard the lorry bore no fruit, and that the Defendant has not been shown any treatment notes or P3 Forms relating to the alleged excess passengers, neither are there any Statements made by them. 5.After close of pleadings and determination of interlocutory matters, the case proceeded to trial before me. Both the Plaintiff and the Defendant called 2 witnesses each. Plaintiffs’ Witnesses’ Testimonies 6.PW1 was Martin George Mbugua. Led by the Plaintiff’s Counsel, Mr. Kurgat, he stated that his company, Topscan Insurance Investigators, investigated the accident upon instructions from the Plaintiff. He stated that the issue was the number of passengers and that while the lorry was authorized to carry only 2 passengers, they established that it had on board 14 passengers, and that they authored the Report dated 7/12/2022, which was prepared by one Peter M. Mwaita, who is however no longer working in the company. He testified that he later prepared the Addendum Report dated 3/02/2023, which was in respect to whether the driver of the lorry was charged with the offence of carrying excess passengers, whether the police verified the number of passengers, and whether statements were taken from them. He stated that the Investigating Officer confirmed to them that there were 14 passengers in the lorry. He however revealed that only one passenger, Felister Nafula, recorded a statement with the police, and had a P3 Form and Police Abstract. He produced the Report and the Addendum as exhibits. Under cross-examination by Mr. Milimo, Counsel for the Defendant, he agreed that the one medical report for one Peter Simiyu is the only one he obtained in relation to the alleged excess passengers. He also agreed that he did not obtain a copy of the statement he alleged to have been made by the said Felister Simiyu, and the Investigating Officer also did not record a statement with the Investigators. He also agreed that in his Addendum Report, he stated that the driver was not charged in Court but was blamed for the accident. He stated that the driver declined to record a statement with the Investigators but had insisted that he only had 2 passengers on board, and that the driver of the third party vehicle also stated that he, too, had only carried 2 passengers on his part, who both died. 7.PW2 was one Phylis Mutua, who introduced herself as a Legal Officer at the Plaintiff. She adopted her Witness Statement and confirmed that the accident was reported to the Plaintiff, that the Police Abstract on records only refers to 3 people as injured, and that the Court case Summons they have received are in relation to only the 2 passengers admitted by the Defendant. In cross-examination, he agreed that the name of Felister referred to by PW1 does not even appear in the Plaint as being one of the alleged passengers, and also that the Plaintiff has not provided any Police Abstracts relating to the alleged excess passengers or Statements made by them. He also agreed that the Defendant has produced Affidavits from some of the alleged excess passengers denying that they were on board the lorry. He further agreed that one Emmanual Masinde Nyongesa whose suit Summons were allegedly served upon the Plaintiff is also not listed in the Plaint as being one of the excess passengers alleged. In re-examination, he pointed out that the passengers who denied having been on board the lorry also did not record statements with the police to affirm such denials. Defendant’s Witnesses’ Testimony 8.DW1 was the Defendant, Catherine Ramona Hamisi. Led by Mr. Milimo, she adopted her Witness Statement which was basically in terms of the contents of the Statement of Defence as already recounted. Under cross-examination by Mr. Kurgat, she basically restated the same matters and denials of the allegation that the lorry was carrying in excess of 3 passengers. She however conceded that she was not in the lorry at the material time and as such, she could not confirm the Plaintiff’s allegations. 9.DW2 was Peter Simiyu Wabomba, who described himself as the driver of the lorry at the material time. He, too, adopted his Witness Statement in which had restated that he was accompanied to Mwea from Chwele on 4/10/2022 by a turn-boy, Silas Wekesa, and a trader, Caro Nanjala Munialo, whose assignment of buying tomatoes they were travelling to Mwea for, and that not finding sufficient tomatoes in Mwea, they drove to Embu where they topped up the tomatoes. In the Statement, he had stated further that the said Caro Nanjala Munialo purchased tomatoes also on behalf of other traders from Chwele market who had pooled together finances for the same and sent her, and whose names she had a list of. In the Statement, he had also restated that the accident occurred on 6/10/2022 while they were driving back to Chwele loaded with the tomatoes on 6/10/2022, whereof the said Caro Nanjala Munialo and the turn-boy Silas Wekesa, sustained fatal injuries, while he (DW2) sustained injuries for which he was treated. In cross-examination, he denied knowledge of the people claimed to have been excess passengers and speculated that the police could have obtained the names from the list carried by Caro Nanjala Munialo, which contained names of the other traders who had pooled finances and sent her to Mwea. Written Submissions 10.The parties then filed Written Submissions. The Plaintiff filed the Submissions dated 31/10/2025, while the Defendants filed theirs dated 24/112/2024. Plaintiff’s Submissions 11.Counsel for the Plaintiff basically made a recap of the pleadings and the testimonies of the respective witnesses, and also cited Section 10(2) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap. 405, which permits the insurer to vitiate a contract of insurance on various grounds, inter alia, where the motor vehicle insured is used for a purpose not covered by the insurance policy, which is the ground relied upon by the Plaintiff in this suit. He contended that whereas the lorry was insured as a commercial truck to carry cargo and not passengers, the Plaintiff had proved, through the list supplied by the police, that there were 13 passengers aboard the lorry at the time of the accident. He asserted that although the Defendant disputed the allegation that the lorry exceeded the permitted number of only 2 passengers, she failed to controvert the contents of the list provided by the police, and also that although the alleged excess passengers are said to have sworn Affidavits denying the allegation, they were never called to testify, and the Affidavits were, as such, never produced in evidence. Defendants’ Submissions 12.On his part, Counsel for the Defendant submitted that the Plaintiff failed to prove its case to the required standards as the Occurrence Book (OB) said to be the source of the information that there were excess passengers was not supported by any documentary evidence. He pointed out that even the Plaintiff’s Investigators, although they mention even the nature of injuries by the alleged excess passengers, and also the hospitals they were treated in, they, too did not avail any treatment chits or P3 Forms, and that the alleged Felister Nafula alleged to have been one of the passengers was not even mentioned in the Investigations Report or even in the Plaint. He also urged that the fact that the Report states that the Investigating Officer declined to record a statement with the Investigators is proof enough that the particulars given by the police were imaginary. He observed that the Plaintiff, from its Submissions, seems to be shifting its burden of proof to the Defendant, which burden the Plaintiff has failed to discharge. He pointed out further that the Investigations Report reveals that the Investigators obtained the Defendant’s M-pesa statement to check whether she had been sending money to the alleged passengers but found no such evidence, and also urged that the fact that the Investigator reveals in the Report that he asked that the phone numbers of the passengers be shared with him in the event that a claim is made, also confirms that he .never had any relevant information on them. He also pointed out the Plaintiff’s witness’s own testimony that the alleged excess passengers never made any reports to, nor record any statements with the police. He also submitted that the mere fact that some suits seeking compensation for injuries allegedly sustained in the accident may have been filed is not proof that such claimants were indeed passengers as alleged as that issue can only be established after conclusion of those trials. The rest of the contents of the Submissions are basically a recital of the Defendant’ witness testimonies. Determination 13.The one broad issue that calls for determination in this matter is “whether a declaration should be made that the Plaintiff is not liable to pay or indemnify the Defendant, the insurer of her lorry, in respect of any death or bodily injury to any person arising from the road accident the subject of this case, and which involved the subject lorry, on grounds that the Defendant breached the terms of the policy in that it had, at the time of the accident, more than 2 passengers on board”. 14.In determining the above issue, it is relevant to appreciate that the obligation of an insurer to satisfy or settle decrees passed against its insured is anchored on the provisions of Sections 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act which provides as follows:“ 10.Duty of insurer to satisfy judgments against persons insured1.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.” 15.However, Sections 10(2) of the same Act provides, inter alia, that:“(2)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 thirty days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings; or……………………………………………………………….” 16.Section 10(4) then also provides as follows:“(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 provision 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 whom notice of such action is so given shall be entitled, if he thinks fit, to be made a party thereto. 17.While therefore Section 10(1) aforesaid compels an insurer to satisfy a judgment against the person insured, that burden is removed, under Section 10(2) and (4), from the Insurer if it obtains a declaration that it is entitled to avoid the Policy of Insurance. 18.In this case, the Defendant, in her Statement of Defence strenuously denied the allegation that her said lorry had carried excess passengers. That allegation therefore became a live issue to be canvassed at the trial for determination. The Evidence Act, Cap 80 is clear on the aspect of the burden of proof as Sections 107 and 108 thereof provide as follows:Section 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.Section 108The 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.” 19.There is therefore no doubt that the Plaintiff, being the party that asserts that the Defendant breached the policy of insurance, is the party that would fail if no evidence were to be given by either side. It therefore follows that it is the Plaintiff that bore the burden of proof in this case.1.On this issue of “burden of proof” and the duty of a Plaintiff to present evidence to prove his case, the Court of Appeal, in the case of Karugi & Another V. Kabiya & 3 Others [1987] KLR 347, stated as follows:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof …. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” 21.Similarly, in the case of Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] eKLR, the Court of Appeal, again, held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. .................................................” 22.In this case, the Plaintiff asserts that, apart from the driver, the lorry had, at the time of the accident, 13 passengers onboard thus breaching the 2 passengers limit term contained in the policy document. On its part, the Defendant contends that, apart from the driver, only two passengers, the turn-boy and the trader who had hired it to take her to Mwea to purchase tomatoes in bulk for herself and for other traders who operate at Chwele market in Bungoma, both who suffered fatal injuries in the accident. In a case of this nature, in which there is a stalemate on whether there were excess passengers in the lorry at the material time, evidence given by the police is no doubt crucial. Noting that two human lives were lost as a result of the accident, it is expected that the accident would have been thoroughly investigated by the police and the results thereof well documented. 23.Counsel for the Defendant has correctly pointed out that no information was given to reveal the source of the entry made in the Occurrence Book (OB) that there were excess passengers carried in the lorry at the time of the accident. I agree since no police officer was called to testify and thus shed light about the source of the entry. No P3 Forms relating to the alleged excess passengers were also produced, and the Police Abstracts supplied only contain the names of the two fatally injured passengers whom the Defendant insists were the only passengers apart from the driver. There is therefore no information on how or the manner in which the Investigating Officer conducted the investigations, or whom he interviewed, and as such, there is no material to establish whether the results he came up with were credible and believable. Although the Investigations Report contains some information allegedly obtained from the police, this cannot be independently verified. The Investigator (PW1) in fact testified that the alleged excess passengers never made any report to, nor record any statements with the police. 24.DW2, said to have been the driver of the lorry at the material time, also denied knowledge of the people claimed to have been excess passengers in the lorry, and speculated that the police could have obtained the names from the list carried by the trader who died, Caro Nanjala Munialo, which list contained names of the other traders who had pooled finances and sent her to Mwea. This explanation appears credible and plausible. 25.In a case of this nature, in which the allegations made have been strenuously denied from inception, it would have been important for the Plaintiff to separately call the police to testify and be cross-examined. Without credible source of the particulars allegedly sourced from the police, the information supplied by the Investigators would only amount to hearsay, particularly since the Investigator reveals that the Investigating Officer declined to record a statement with him. It is therefore unclear to me why the Plaintiff did not deem it fit to apply for issuance of Summons to compel the police to avail a representative to testify by even simply producing extracts from the police file. 26.Counsel also correctly pointed out that the Plaintiff’s Investigators, although they mentioned even the nature of injuries by the alleged excess passengers, and also the hospitals they were treated in, the Investigators did not avail any treatment chits, medical reports or P3 Forms or even Police Abstracts to support those particulars. 27.Counsel also correctly observed that the alleged Felister Nafula claimed by the Plaintiff to have been one of the passengers, and who is the only other person mentioned in the Police Abstract on record, was not even mentioned in the Investigators Report or even in the Plaint. 28.The Investigator has also revealed, in his Report, that he did not obtain any evidence of monetary transactions between the Defendant and the alleged excess passengers to create the suspicion or impression that the Defendant could have influenced such passengers to give false information about their being passengers in the lorry. 29.I also agree with Counsel that the mere fact that some suits seeking compensation for injuries allegedly sustained in the accident may have been filed against the Defendant by persons alleging to have been passengers in the lorry at the material time is by itself not proof that such claimants were indeed passengers as alleged as that issue can only be established after conclusion of the trial in those suits. 30.I believe I have said enough to signal my finding that the Plaintiff has failed to prove its case on a balance of probabilities. Although I agree with Counsel that even though the alleged excess passengers are alleged to have sworn Affidavits denying the claim that they were aboard the lorry as passengers at the time of the accident, they were never called to testify, and the Affidavits were thus also never produced in evidence. I however agree with Counsel for the Plaintiff that dwelling on this fact amounts to shifting the burden of proof to the Defendant, which shifting is not allowed in law. 31.Having found as above, it follows that the Plaintiff’s claims herein cannot succeed Final Orders 32.The upshot of my findings above is therefore that this suit is dismissed with costs to the Defendant. DELIVERED, DATED AND SIGNED AT ELDORET THIS 22ND DAY OF MAY 2026…………………..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Ms. Kurgat for the PlaintiffN/A for the DefendantCourt Assistant: Rodgers Tshombe