https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7411

Mwita v Trident Insurance Company Limited & another (Civil Suit E020 of 2025) [2026] KEHC 7411 (KLR) (Civ) (5 May 2026) (Judgment) Neutral citation: [2026] KEHC 7411 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Suit E020 of 2025 SN Mutuku, J May 5, 2026 Between Daniel Mwita Mwita Plaintiff and Trident Insurance Company Limited Defendant and Nicholas Kiplagat Koech Interested Party Judgment 1.Nicholas Kiplagat Koech (the Interested Party) instituted Milimani SCCC No. E4437 of 2024 (Nicholas Kiplagat Koech v Daniel Mwita Mwita) (the primary suit) seeking various reliefs against Daniel Mwita Mwita (the Plaintiff) arising out of a road traffic accident which involved motor vehicle registration number KCW 987L (the subject motor vehicle), belonging to the Plaintiff at all material times. The subject motor vehicle was insured by Trident Insurance Company Limited (the Defendant) vide Policy No. 020/070/1/787396/2023 (the Policy). The policy was effective from 4.12.2023 to 1.10.2024. 2.A default judgment was entered in favour of the Interested Party and against the Plaintiff on 8.10.2024 and a decree was issued. It is that decree that necessitated the filing of this suit by the Plaintiff through a Plaint dated 3.02.2025 in which the following reliefs are sought:i.Conservatory order staying execution of decree and warrants of attachments issued against the Plaintiff in Milimani Small Claims Court (SCCC/E4437/2024 -Nicholas Kiplagat Koechv Daniel Mwita Mwita).ii.A Declaration that it is the Defendant who is statutorily obligated to settle the decretal sum and any other costs arising from Judgment and Decree arising from Milimani Small Claims Court (SCCC/E4437/2024 -Nicholas Kiplagat Koechv DanielMwita Mwita).iii.The Plaintiff to be awarded punitive damages.iv.Costs of this suit. 3.Together with the declaratory suit, the Plaintiff filed an application dated 3.02.2025 where he sought various orders, including an order for a stay of execution of the decree emanating from the primary suit and an order directing the Defendant to deposit the decretal sum of Kshs. 603,189.72 in court, pending hearing and determination of the declaratory suit. Upon consideration thereof, the application was dismissed by this court for want of merit, with costs to the Interested Party. 4.Subsequently, the Plaintiff filed a Request for Judgment dated 27.02.2025 seeking entry of a default judgment against the Defendant as sought in the Plaint, owing to its failure to enter appearance and file a defence within the stipulated timelines and further seeking to have the matter fixed for formal proof hearing. 5.Upon consideration thereof, this court vide a ruling delivered on 5.08.2025 granted the default/interlocutory judgment, therefore deeming the Defendant liable to settle the decretal sum of Kshs. 603,189.72 arising from the primary suit. The court further ordered that the matter be set down for formal proof for purposes of assessment of the punitive damages sought and that costs would abide the final outcome of the declaratory suit. Formal Proof 6.At the hearing, the Plaintiff adopted his witness statement dated 3.02.2025 and relied on his list and bundle of documents dated 3.02.2025 (P. Exhibits 1 to 8) and his supplementary list and bundle of documents dated 17.10.2025 (P. Exhibits 9 and 10). 7.He testified that following the accident, he reported the matter both to the police and the Defendant, following which he was requested to fill the requisite documentation. That in addition, the Defendant required him to pay an excess sum of Kshs. 30,000/- pursuant to the Policy, which he did. He testified that notwithstanding the Defendant’s assurances that it would take over the matter on his behalf, it did not take any action but abandoned the claim relating to the primary suit. He stated that the Defendant demonstrated bad faith, to the extent that it did not at all participate in the present declaratory suit. 8.It is the Plaintiff’s testimony that he is currently seeking an award of punitive damages aimed at punishing the Defendant for abandoning the claim, in addition to costs both of the declaratory suit and the primary suit and costs of the Interested Party in these present proceedings. Submissions 9.The Plaintiff filed submissions to support his prayer for an award of punitive damages. He has relied on the case of PN Mashru Ltd v Ojenge [2023] KECA 473 (KLR) in which the Court of Appeal reasoned that punitive or exemplary damages are awardable in two (2) key instances: where there is oppressive, arbitrary or unconstitutional action by servants of the government and where the defendant’s action was calculated to procure some benefit at the expense of the plaintiff. 10.The Plaintiff is relying on the second instance mentioned above, where he submits that by demanding and receiving an excess sum of Kshs. 30,000/- notwithstanding the existence of the Policy, the Defendant intended to derive benefit at his expense, thus taking financial advantage of the Plaintiff. 11.The Plaintiff has further submitted that despite receipt of the above payment, the Defendant utterly failed and/or neglected to defend his interest in the primary suit and also failed to settle the decretal amount arising from the primary suit and subsequently failed and/or neglected to enter appearance and/or participate in the declaratory suit, thereby demonstrating utter bad faith. 12.For the foregoing reasons, the Plaintiff has urged this court to find that he has proved the entirety of his claim against the Defendant in line with Section 107 of the Evidence Act, and to award him punitive damages. Analysis and Determination 13.I have considered the pleadings, the evidence on record and the submissions on record as well as authorities relied on by the Plaintiff. There is on record a default/interlocutory judgment against the Defendant, in the sum of Kshs. 603,189.72 arising from the primary suit. What is pending determination before this court is the issue of punitive or exemplary damages. 14.The Court of Appeal in the case of PN Mashru Ltd v Ojenge [2023] KECA 473 (KLR) cited in the Plaintiff’s submissions, laid out the circumstances under which punitive damages are awardable, in the following manner:“On the award of punitive damages, in Bank of Baroda (Kenya) Limited vs. Timwood Products Ltd Civil Appeal No. 132 of 2001, this Court citing Obongo & Another vs. Municipal Council of Kisumu [1971] EA 91 and Rookes v Banard & Others [1964] AC 1129 held that in Kenya punitive or exemplary damages are awardable only under two circumstances, namely (i) where there is oppressive, arbitrary or unconstitutional action by the servants of the government; and (ii) where the defendant’s action was calculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff. The third scenario is, of course, where such damages are authorised by statute.” 15.It is noteworthy that an award of punitive damages by the court is discretionary. As stated in the above authority, punitive damages are deemed to apply in instances where there has been some arbitrary or calculated conduct by the defendant or where the actions by the defendant are calculated to grant some benefit. It would mean that exemplary damages essentially go beyond compensation and are ordinarily meant to punish the offending party. 16.I have considered the arguments of the Plaintiff in support of the claim for punitive damages sought. I have noted that the Plaintiff did not offer any proposals to the amount of the damages he is seeking under that heading. I have however examined the exhibits tendered in further support of that claim. 17.Further, from my examination of the record, it is not controverted that following the accident subject of these proceedings and the institution of the primary suit, the Plaintiff sent email correspondences to the Defendant’s Accident Legal Claims department on 29.08.2024 and 17.09.2024 (P. Exhibits 3 and 4) forwarding the pleadings and relevant material thereto. The record also shows that the Defendant was equally served with a statutory notice dated 3.09.2024 by the Interested Party’s advocate. 18.The record further shows that the Plaintiff tendered material by way of WhatsApp texts and M-pesa extracts as P. Exhibit 5, to support his testimony that the Defendant’s agent/employee instructed him to pay a sum of Kshs. 30,000/- as excess payment to ensure representation of his interest in the primary suit. There is credible material on record to support the Plaintiff’s averment that he made the said payment on 20.09.2024. 19.Going by the material on record, while it is evident that the Defendant instructed the firm of Ong’anya Ombo & Co. Advocates to enter appearance and file a statement of defence on behalf of the Plaintiff in the primary suit vide a letter dated 24.09.2024 (P. Exhibit 6), it would appear that the said firm of advocates merely filed a notice of appointment of advocates but did not substantively participate in the matter. A draft statement of defence was also tendered as part of the Plaintiff’s documents, but there is nothing to indicate that the same was ever filed. Consequently, a default judgment was entered in favour of the Interested Party and against the Plaintiff, which the latter unsuccessfully tried to set aside upon engaging a separate firm of advocates. This led to the commencement of the execution process emanating from the primary suit commenced against the Plaintiff. 20.Upon my examination of the proceedings relating to the present declaratory suit, it is evident from the record that the Defendant neither entered appearance nor participated in the same, despite there being evidence of service. 21.Upon my consideration of all the foregoing circumstances, I am persuaded that the Plaintiff has demonstrated the manner in which the Defendant benefited at his expense, notwithstanding the existence of the Policy agreement and its assurances made to the Plaintiff, that it would ensure his interest was defended in the primary suit. Save for the letter of instructions made to the firm of Ong’anya Ombo & Co. Advocates, there is no credible material on record demonstrating that the Defendant took diligent steps in actively protecting the interest of the Plaintiff or meeting its obligations under the Policy agreement, despite its assurances earlier made to the Plaintiff. 22.I am thus persuaded to award the Plaintiff punitive/exemplary damages. As earlier mentioned, the Plaintiff did not offer any proposed amounts on this. Be that as it may, given the nature of the claim, I am persuaded to award a sum of Kshs. 150,000/- under this head, upon considering the case of Mary Nduta Ngugi v Beatrice Ngelesai & another [2019] KEELC 746 (KLR) where the court awarded punitive/exemplary damages in a similar sum of Kshs. 100,000/-. This figure is based on the reasoning that Mary Nduta case was decided in 2019, about 5 years ago and taking into account the current rate of inflation. 23.Consequently, judgment be and is hereby entered in favour of the Plaintiff and against the Defendant in the following manner:a.Conservatory order be and is hereby issued staying execution of decree and warrants of attachments issued against the Plaintiff in Milimani Small Claims Court (SCCC/E4437/2024 -Nicholas Kiplagat Koech v Daniel Mwita Mwita).b.A Declaration be and is hereby made that it is the Defendant who is statutorily obligated to settle the decretal sum and any other costs arising from Judgment and Decree arising from Milimani Small Claims Court (SCCC/E4437/2024 -nicholas Kiplagat Koech v Daniel Mwita Mwita).c.That the Plaintiff be and is hereby awarded punitive/exemplary damages in the sum of Kshs 150,000 with interest at court rates from the date of this judgment until payment in full.d.Costs of this declaratory suit. 24.It is so ordered. DATED, SIGNED AND DELIVERED THIS 5TH DAY OF MAY 2026.S. N. MUTUKUJUDGEIn the presence of:1……………………………………..for the Plaintiff2…………………………………….for the Defendant3……………………………………for the Interested Party