https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10895

Directline Assurance Company Ltd v Wanjohi (Civil Appeal E568 of 2024) [2026] KEHC 10895 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10895 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E568 of 2024 RA Oganyo, J July 17, 2026 Between Directline Assurance Company Limited Appellant and Elijah Thiga Wanjohi Respondent (Being an appeal from the Judgment and Decree of Hon. Ruguru, SPM dated 4th April, 2024 at the Magistrates Court at Milimani in Civil Case No. E5716 of 2022) Judgment 1.This appeal arises out of the decision of Hon. Ruguru, SPM dated 4th April, 2024 at the Magistrates Court at Milimani in Civil Case No. E5716 of 2022); where the for a declaration that the Appellant is bound to fully pay the decree in Milimani CMCC No. E8788 of 2021 amounting to Kshs. 2, 163, 922/41 together with interest at court rates from date of entry of judgement till payment in full together with costs of the suit. 2.In the plaint, the Respondent alleged that at all material times, the Appellant was the insurer of the user of Motor vehicle registration number KAR 543L under policy of insurance number 00074675(TPO) and that on or about the 29th August, 2020 whilst the said policy was in force, the Respondent was involved in an accident involving Motor vehicle registration number KAR 543L. he sued the insureds and judgement was entered in his favour against the insureds jointly and severally for Kshs. 1,965,270 plus costs and interests totalling to Kshs. 2,163,922/41 as per decree dated 14th September, 2022. The Respondent averred that he had issue a statutory notice prior to filing of suit number E8788 of 2021 as required under the provisions of The Insurance (Motor Vehicles Third party Risks) Act and that the earlier proceedings by the Respondent related to liability and quantum under the Insurance (Motor Vehicles Third party Risks)Act. He prayed for a declaration that the Appellant is bound to fully pay the decree issued in Milimani CMCC no. 8788 of 2021 under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. 3.By statement of Defence dated 30th January, 2023, the appellant denied knowledge of Milimani CMCC E8788 of 2021 as alleged by the Respondent herein and put him to strict proof thereof. The appellant stated that they are not liable to settle any judgement was entered in Milimani CMCC E8788 of 2021, adding that they were not served with statutory notice as required under the mandatory provision of section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. The appellant prayed that the Respondents suit subject to this appeal be dismissed with costs. 4.The Respondent herein filed an application before the trial magistrate dated 23rd February, 2023 seeking orders that the Appellants statement of defence before the trial court be struck out, judgement be entered in favour of the Respondent herein and costs of the said application. 5.The trial court considered the application and found that the accident subject to litigation herein occurred on the 29th August, 2020 involving MV KAR 53 L along Kangundo road and that the said vehicle was insured by the Respondent herein. He said that he appellant herein was aware of the pendency of Milimani Civil suit number E8788 of 2021 having been served with the statutory notice dated 26th February, 2021 which they acknowledged receipt on the 3rd March, 2021 buy stamping the same. The hon. Magistrate found that the suit before her was resjudicata as the issues raised before her were res judicata having been canvassed in Milimani E8788 of 2021 and that the Appellant’s statement of Defence contained mere denials hence ought to be struck out. 6.Dissatisfied with the trial court’s decision, the Appellant lodged the instant appeal impugning the trail court’s decision on grounds thata.The trial magistrate erred in law and fact by striking out the Appellants statement of defence thus denying him a chance to canvass their defence which raises triable issues and that it was not vexatious or scandalous.b.That the trial magistrate erred in law and fact in failing to consider and appreciate the grounds highlighted in their replying affidavit sworn on 2nd February, 2024 in response to the Respondent’s application to strike out their Defencec.That the trial magistrate erred in law and fact in taking a draconian measure of striking out their defence when circumstances did not call for such measuresd.That the trial magistrate overlooked the Appellants replying affidavit and misconstrued the legal principles for striking out pleadings thereby taking an improper course of striking out their statement of defence without hearing the parties. 7.The Appellants prayed that the appeal be allowed and the trial court’s ruling and order dated 4th April, 2024 and its consequential orders be set aside, the Appellant’s statement of defence dated 30th January, 2023 be reinstated and the appellant be allowed to defend their suit before a different trial Magistrate. 8.This being a first appeal, I am alive to the responsibility of the court. I am therefore called upon to analyse and re-assess the evidence on record and reach my own conclusions bearing in mind that I neither saw nor heard the witnesses testify (see Selle v Associated Motor Boat Co. [1968] EA 123). In Kiruga v Kiruga & Another [1988] KLR 348, the Court of Appeal observed that;“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution” 9.The appeal was disposed of by way of written submissions. The Appellants submissions are dated 30th March, 2026 while those of the Respondent are dated 8th April, 2026 which I have read and considered. 10.The Respondent filed a declaratory suit against the appellant seeking to recover the decretal sum in number E8788 of 2021. In Guaranty Trust Co. of New York vs. Hannay and Company Limited [1915] 2 KB 536 as applied in Atieno v Kenya Orient Insurance Company Limited [2025] (KLR), the court reiterated the findings in Kenindia Assurance Company Ltd. v Patrick Onyango Maina and held that;“declaratory suits are specifically intended to determine whether an Insurance is obligated to satisfy judgments obtained against its Insured.” 11.Section 10(1) of the Motor Vehicles (Third Party Risks) Act provides that:“If after a certificate of insurance has been issued under subsection (4) of section 5, judgment in respect of any liability required to be covered by a policy under paragraph (b) of subsection (1) of section 5... is obtained against any person insured by the policy, then, notwithstanding that the insurer may be entitled to avoid or cancel, the policy, the insurer shall, subject to the provisions of this section, pay to the person entitled to the benefit of the judgment... any sum payable thereunder.” 12.It is not in dispute that the Appellant had issued a valid policy of insurance in respect of Motor Vehicle Registration No. KAR 543L and that the Respondent sustained injuries arising from the accident involving the said motor vehicle. I have carefully perused the record of appeal, particularly the pleadings in Milimani CMCC No. E5716 of 2022, being the declaratory suit, the Notice of Motion dated 23rd February 2023 seeking to strike out the Appellant's Statement of Defence, and the supporting affidavit sworn in support thereof. From the material on record, it is evident that the Respondent had previously instituted Nairobi Small Claims Court Case No. E780 of 2021, in which judgment was entered in his favour for Kshs. 572,000, and the decretal sum was subsequently paid through the firm of Isolina Kinyua & Co. Advocates. The Appellant acknowledged receipt of the statutory notice issued by the said firm, and annexed to the replying affidavit were copies of the statutory notice, cheque No. 101456 for Kshs. 572,000 drawn in favour of Isolina Kinyua & Co. Advocates, and the corresponding discharge voucher evidencing settlement of the decretal sum. The parties in Nairobi Small Claims Court Case No. E780 of 2021 were Elijah Thiga Wanjohi v Mathai Gikandi & Another, while the parties in Milimani CMCC No. E5716 of 2022, the declaratory suit arising from the alleged non-settlement of the decree in Milimani CMCC No. E8788 of 2021, are Elijah Thiga Wanjohi v Mathai Gikandi. It is evident that the parties in the primary suit, which culminated in the declaratory suit being Milimani CMCC No. E5716 of 2022, are the same. Further, I have seen documentary proof demonstrating that the firm of Isolina Kinyua & Co. Advocates received payment in the sum of Kshs. 572,000 in settlement of the claim arising from the injuries sustained by the Respondent herein. 13.In Maselus Eric Atieno v Unitel Services Limited [2017] KEHC 8287 (KLR) as applied in inyanjui v Entire Company Limited & another [2026] (KLR) the court reiterated that“damages are meant to compensate a party for the loss suffered but not to enrich a party” 14.I consequently find that the Respondent herein having been compensated a sum of Kshs. 572,000/-, filing of Milimani Civil suit number Milimani CMCC No. E8788 of 2021 amounted to resjudicata and any payment of the decree issued in Milimani CMCC No. E8788 of 2021 would not only be bad in law but would also amount to fraud and unjust enrichment. 15.I consequently allow the appeal, set aside the orders issued in the trial court’s ruling dated 4th April, 2024 and enter judgement in favour of the Appellant in the following terms;a.That the Appellants appeal is allowed.b.That the Respondent’s suit in Milimani CMCC No. E5716 of 2022 seeking to enforce the judgement entered in Milimani CMCC No. E8788 of 2021 is dismissed.On costs, it is trite law that costs follow the event. The Appellants will get the costs of the appeal.It is so ordered.Right of appeal 30 days. DATED, SIGNED AND DELIVERED THIS 17TH DAY OF JULY, 2026.………………….….ROSELINE OGANYOJUDGEIn the presence of: -C/Asst……E, SanaMiss Omollo h/b for Awino for the AppellantN/A for the Respondent.