https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/744

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT BUNGOMA** **CIVIL CASE NO. E065 OF 2025** **CYNTHIA LYDIA WAKOYA…..………………………………………………..PLAINTIFF** **VERSUS** **UAP INSURANCE COMPANY LIMITED & ANOTHER..……………..DEFENDANTS** **JUDGMENT** 1. The Plaintiff instituted this suit against the Defendants (“the insurers”) through a Plaint dated 21st February 2025, praying for judgment against the insurers for:- 2. *A declaration that the* *Defendants are liable to pay the Plaintiff Kshs. 972,400/= (Nine Hundred and Seventy Two Thousand Four Hundred Shillings only) being the decretal sum in Bungoma CMCC No. 190 of 2017 plus costs and interest now standing at Kshs. 158,178.81/= all totaling to Kshs. 1,130,578.81/= from date of judgment as from 07th January 2022 till payment in full* 3. *Interest on (a) above* 4. *Cost of the suit* 5. The Plaintiff pleaded that at all material times relevant to this suit, the 1st Defendant had insured Paul Kiiru Njenga’s motor vehicle registration number KCG 485 B (“the prime mover”) through insurance policies number UAP/4523/M.B/COMESA and UAP/4524/M.B/COMESA commencing on 30th January 2016 and expiring on 29th January 2017. 6. The Plaintiff further pleaded that the prime mover was hauling a trailer registration number ZF 3390 (“the trailer”) insured by the 2nd Defendant through an insurance policy number NKR/0800/000013/2016 commencing on 15th January 2016 and expiring on 13th January 2017. 7. She added that she was involved in a road traffic accident on 19th September 2016 along Eldoret – Webuye road while aboard motor vehicle registration number KBJ 698 H which was hit by motor vehicle registration number KCG 485 B/ZF 3390 (“the insured motor vehicle”) causing her to sustain injuries which prompted her to seek compensation through Bungoma CMCC No. 190 of 2017 (“the primary suit”) against the Defendants’ insured one Paul Kiiru Njenga (“the insured”). 8. The Plaintiff further averred that judgment in the primary suit was rendered in her favour on 07th January 2022, requiring the insured to pay her Kshs. 972,400/= (Nine Hundred and Seventy-Two Thousand Four Hundred Shillings only) plus cost and interest which remains unpaid by the insurers to date, hence this suit. 9. The Defendants entered appearance and filed their respective Statements of Defence denying having insured the insured’s motor vehicle and denying being served by the Plaintiff with the notice of intention to sue and the notice of entry of judgment against their insured in the primary suit. The Defendants urged this court to dismiss this suit with costs. 10. The Plaintiff responded to the Statements of Defence filed by the insurers through replies to the said Statements of Defence by reiterating the contents of her Plaint. She prayed for the dismissal of the Statements of Defence on record and for the grant of the prayers in the Plaint. 11. It is against this backdrop that this court set down this matter for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. **EVIDENCE** **Plaintiff’s Case** 1. **PW1** **Cynthia Lydia Wakoya** adopted her witness statement dated 21st February 2025 as her evidence in chief. She produced a copy of her national identity card, the decree and the judgment in the primary suit, the statutory notice in the primary suit to the 1st Defendant herein dated 06th June 2017, and the statutory notice in the primary suit to the 2nd Defendant herein dated 06th June 2017 as well as the accompanying certificates of postage as exhibits. 2. **PW2 No. 7XXXX PC Geoffrey Aranda** of Lumakanda Police Station produced a police abstract dated 30th January 2017 showing that the accident giving rise to the primary suit occurred on 19th September 2016 and the same was reported to the police. 3. He added that the insured motor vehicle was at the time of the accident insured by the 2nd Defendant through an insurance policy number NKR/0800/00013/2016 commencing from 15th January 2016 – 13th January 2017. He further stated that the insured motor vehicle had also been insured at the time of the accident by the 1st Defendant through an insurance policy number UAP/4523/MIB/COMESA. **Defendant’s Case** 1. The Defendants did not call any witnesses to substantiate the averments in their respective Statements of Defence. The court in **Kenya Power & Lighting Co Ltd v Rassul Nzembe Mwadzaya [2020] eKLR,** stated as follows on the consequence of a party failing to call witnesses to substantiate the averments in their pleading: *“Since no evidence was adduced in support of the defence case, the defence on record therefore remained as a mere allegation. This is the position in law and was restated in the case of Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No.23 of 1997, where the Court of Appeal stated: -* *“In this matter, apart from filing its statement of defence, the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations.”* 1. Guided by the authority above, it follows that the averments in the Defendants’ Statements of Defence on record are mere allegations which this court will not consider in determining this case. **ANALYSIS AND DETERMINATION** 1. This court has duly considered the pleadings on record, the evidence led by the parties herein, their respective submissions, as well as the authorities relied upon. 2. It is this court’s humble view that the only issue for determination is whether the insurers should satisfy the decretal sum in the primary suit. **Whether the insurer should satisfy the decretal sum in the primary suit** 1. A reading of the judgment in the primary suit produced by PW1 shows that judgment was entered against the insured in the primary suit on 07th January 2022, in the sum of Kshs. 972,400/= (Nine Hundred and Seventy-Two Thousand Four Hundred Shillings only) plus cost and interest. A copy of the decree dated 19th September 2022 produced by PW1 evidenced as much. 2. The police abstract produced by PW2 shows that at the time of the accident giving rise to the primary suit, the insured motor vehicle had been insured by the 1st and the 2nd Defendants (jointly referred to as the “insurers”) through insurance policies numbers UAP/4523/M.B/COMESA, UAP/4524/M.B/COMESA and NKR/0800/000013/2016. 3. The insurers submitted that the entries in the police abstract on the insured motor vehicle’s insurer (s) fell short of the evidence required to prove that the insured motor vehicle had been insured by the insurers at the time of the accident at the time of the accident. It was the insurers’ view that in the absence of insurance policies and certificates of insurance, the Plaintiff had not proved on a balance of probabilities that the insurers had insured the insured motor vehicle at the time of the accident in the primary suit. 4. The Plaintiff’s counsel on his part submitted that the insurers, having not filed their insurance policies’ registers to disprove the contents of the police abstract on the insured motor vehicle’s insurers, could not purport to deny having insured the insured motor vehicle as captured in the police abstract on record. 5. It is given that the Plaintiff did not file the insured motor vehicle’s insurance policies and certificates of insurance. However, it should be remembered that the Plaintiff was not the insured in the primary suit but a victim. This court doubts whether an accident victim can easily obtain an insurance policy or a certificate of insurance belonging to another person to use the same as an exhibit. 6. In any event, the law in this jurisdiction is that entries in a police abstract on a motor vehicle insurance details, if not controverted, prove on a balance of probabilities that the motor vehicle in question was insured by the insurer set out in the police abstract. To this end, this court draws inspiration from **Mbani & another v Corporate Insurance Company Limited (Civil Appeal E098 of 2023) [2026] KEHC 2200 (KLR)** where the court held: *“35.In the present case, the police abstract set out the insurer’s name (Respondent), the Policy number the particulars of the Motor vehicle, and the date of the accident. The Respondent did not file any evidence to dispute that information and the trial court accepted the authenticity of the police abstract but nonetheless discounted it solely because the actual policy was not produced. That was erroneous and misdirection on the part of the trial court and cannot be sustained in the circumstances.* *36.Under Section 10(1) & (2) of the Act once a judgment is obtained against the insured, and the insurer has been served with statutory notice, the insurer becomes legally bound to satisfy the judgment unless it proves a statutory defence. The plaintiff in a declaratory suit does not bear the burden of producing the policy document.* *37.The insurer, being the custodian of the policy, bears the duty to file the policy or an affidavit denying coverage if it disputes liability.”(Emphasis added)* 1. The holding above was also restated in **APA Insurance Company Ltd v George Masele (2014) eKLR,** where the court held: *“The Certificate of Insurance is usually issued to the insured and not the road accident victim. It is a document in the special knowledge and possession of both the insured and the insurer. The road traffic accident victim cannot access it. The details in the Police Abstract as to the details of insurance are in the ordinary cause of events obtained by the police from the Certificate of Insurance affixed to the motor vehicle or are supplied by the insured. In this regard. I am unable to agree with Ms. Akonga that the Respondent should have produced the Certificate of Insurance (or Policy No. 010/810/000005/2001/04 in order to prove who the insurer was.”* 1. Guided by the authorities above, it follows that the insurers, having failed to lead evidence to controvert the contents of the police abstract on record, it follows that the contents of the police abstract on record proved on a balance of probabilities that the insurers/Defendants had insured the insured motor vehicle at the time of the accident. 2. The duty of the insurers to satisfy or settle decrees against their insured is a statutory duty which stems from Sections 10(1) and (2) of the Insurance (Motor Vehicle Third Party Risks) Act (“the Act”). Section 10 of the Act provides: ***10. Duty of insurer to satisfy judgments against persons insured*** ***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.*** 1. The insurer’s duty to satisfy a decree under section 10 reproduced above can only be declined by an insurer as set out in the Act. Section 10(4) of the Act sets out the circumstances under which an insurer shall not be called upon to satisfy a decree under section 10 of the Act 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.”* 1. The provisions of the law reproduced above show that an insurer is exempted from liability under section 10(2) only where there is stay of execution; where the policy has been cancelled and the certificate of insurance surrendered; where no notice of institution of the suit giving rise to the judgment sought to be enforced was served either before institution of the suit or within 14 days after institution of the suit; or where the insurer has obtained a decree entitling it to avoid liability under the policy(see **Blueshield Insurance Co. Ltd v Raymond Buuri M’rimberia (1998) eKLR)** 2. The insurers did not adduce any evidence before this court to prove on a balance of probabilities that the instances in which they are not obligated to settle a decree under section 10 of the Act obtain in this case. In the circumstances, the insurers must be called upon to settle the decree in the primary suit. 3. However, this court notes that the 1st Defendant insured the insured motor vehicle under a COMESA Yellow Card, which is a product of the Northern Corridor Transit and Transport Agreement (NCCTA). 4. The COMESA Yellow Card only covers insurance risks within the COMESA region outside the insured motor vehicle’s country of origin. The insured motor vehicle's country of origin is Kenya. The accident giving rise to the primary suit occurred in Kenya. It thus follows that the 1st Defendant can not be called upon to settle the decretal sum which arose from an insured risk which attached outside the scope of the COMESA Yellow Card. **DETERMINATION** 1. The upshot of the foregoing is that judgment is entered in the following terms: 2. *A declaration is hereby issued that the 2nd Defendant is liable to pay the Plaintiff Kshs. 972,400/= (Nine Hundred and Seventy-Two Thousand Four Hundred Shillings only) being the decretal sum in Bungoma CMCC No. 190 of 2017 plus costs and interest now standing at Kshs. 158,178.81/= all totaling to Kshs. 1,130,578.81/=* 3. *The award in (a) above will earn interest at court rate from the date of filing this suit till payment in full* 4. *The Plaintiff will have costs of this suit to be borne by the 2nd Defendant* 5. *The case against the 1st Defendant is dismissed with costs* 6. Judgment accordingly. **Read, signed, and delivered in open Court at Bungoma this 30th day of June 2026** **T.O. OMONO** **SENIOR RESIDENT MAGISTRATE** **In the presence of:** Mr. Mulongo for the Plaintiff Ms. Nyiva for the 1st Defendant Ms. Warochio for the 2nd Defendant C/A: Mr. Rioba