https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/276

Kwekwe (Suing as the administrator of the Estate of Victor Mwarandu Mwanzai - Deceased) v Occidental Insurance Company (Civil Suit E017 of 2026) [2026] KEMC 276 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEMC 276 (KLR) Republic of Kenya In the Mariakani Law Courts Civil Suit E017 of 2026 TN Sinkiyian, PM July 9, 2026 Between Everlyne Kwekwe (Suing As The Administrator Of The Estate Of Victor Mwarandu Mwanzai - Deceased) Plaintiff and Occidental Insurance Company Defendant Judgment 1.Summary of the case. The plaintiff Everlyne Kwekwe suing as the Administrator of the Estate of Victor Mwarandu Mwanzai (Deceased) lodged this suit vide Plaint dated 27/1/2026, giving background of the accident that led to death of death of Victor Mwarandu Mwanzai, that on January 16, 2018, the deceased Victor Mwarandu Mwanzai, was riding a motorcycle KMDX 786F along the Mariakani-Mazeras highway when he was struck and fatally injured near Danka Petrol Station by a recklessly driven Nissan X-Trail registration no. KCF 939F). The vehicle was owned by Abdile Hassan alias Abdile Hassan Duwale the insured, and driven by his agent, Ali Osman Salat Maalim. 2.The Primary suit: The Plaintiff sued the owner of the said vehicle (Abdile Hassan) in 2018, in Mariakani CMCC No. 176 of 2018) Everlyne Kwekwe, suing as the Administrator of the Estate of Victor Mwarandu Mwanzai (Deceased) = Versus= Abdile Hassan alias Abdile Hassan Duwale. 3.The Defendant in primary suit Abdile Hassan alias Abdile Hassan Duwale failed to appear in the primary suit, and the case proceeded. After formal proof hearing judgement was made on September 11, 2025, against the insured. He was found 100% to blame and damages against him were assessed at Kshs. 3,054,256.00, made up of awards as follows: Loss of dependency: KShs. 2,830,256.00; Loss of expectation of life: Kshs. 100,000.00; Pain and suffering: Kshs. 70,000.00; Special damages: Kshs.54,500.00. 4.The Defendant in the current case Occidental Insurance Company, is sued as the insurer of the vehicle involved in the accident. In paragraph 4, 5 and 7 of the plaint, plaintiff avers that under policy number P/NO TPO/07/66675SP, the insurer defendant here is liable for the award made against its insured. The defendant had insured the motor vehicle registration number KCF 939F (a Nissan X-Trail) against third-party risks, owned by Abdile Hassan alias Abdile Hassan Duwale the insured. paragraph 4 of the plaint, this policy was issued by the Defendant to insure the motor vehicle registration number KCF 939F (a Nissan X-Trail) against third-party risks, owned by Abdile Hassan alias Abdile Hassan Duwale the insured. 5.Due notice was issued to the defendant (paragraph 7 of the plaint, a statutory notice dated February 28, 2018, was issued to Occidental Insurance Company to notify the insurer of the intention to institute legal proceedings against their insured. The notice was served upon the insurance company on February 29, 2018, as required under the Insurance Motor Vehicle (Third Party Risks) Act (Chapter 405 of the Laws of Kenya). 6.The decretal sum Kshs. 3,054,256.00 is due despite the insured and the current defendant being served with demand letter and statutory notice. The plaintiffs prays for a declaration that the defendant is liable to satisfy the judgment in Mariakani CMCC no. 176 of 2018 is warranted as Occidental Insurance has failed or neglected to pay decretal sum despite being issued with statutory notice prior to the primary suit and the current suit. Plaintiff prays for declaration of liability against defendant insurer and an order for the payment of Kshs. 3,054,256.00 with interest at court rates and costs of this suit with interest. The case CC E017/2026 was heard ex parte on 13/5/2026, with Mr. Kiragu appearing for the plaintiff. Plaintiff testified virtually Everlyne Kwekwe adopting her witness statement dated 27/1/2026 as her testimony and producing documents in the bundle dated 27/1/2026; and the supplementary list of 9/2/2026 as exhibits in the order listed marked as exhibits 1 to 7, and exhibit 8 (list for 9/2/2026: certificate). She pleaded for relief per the plaint. 7.The plaintiff later filed closing submissions. Very elaborate with several authorities cited to support the case, and detailed recap of the exhibits tendered. The gist of the plaintiff’s submissions is that plaintiff has tendered proof of existence of a valid Insurance policy as pleaded. Police abstract exhibit 2 shows the insurer for motor vehicle registration no. KCF 939Fowned by Abdille Hassan as Occidental Insurance Co. confirming policy no. as P/NO TP0/07/66675SP for the afore-stated motor vehicle. The statutory notice issued to the insurer was produced as exhibit 1, dated 29th February 2018. The plaintiff’s evidence that it was served upon the defendant prior to the institution of the primary suit has not been rebutted. Having issued and served statutory notice dated 29th February 2018 as required under Section (10)(2)Cap 405 Laws of Kenya, adopting the option of notice prior to primary suit being lodged against its insured. Plaintiff submits under Section 10(2)(a) of Cap. 405, once the insurer was made aware of the impending proceedings; due opportunity was afforded upon the said insurer to participate in the suit. The insurer had ample time to investigate the claim and protect its interests. 8.Plaintiff submits that there is a lawful judgment against the insured in Mariakani Suit PMCC No. 176 of 2018. Decree issued and judgement notice subsequently issued were produced as exhibit 5. 6 and 7. The defendant in the primary suit did not challenge that judgment. The declaratory suit now before court does not reopen liability: it merely enforces valid judgment. 9.Plaintiff relies on Section 10(1) of Cap 405 urging that the insurer is bound to pay where a judgment obtained by third party against a person insured. The insurer is under mandatory statutory obligation and it is not discretionary. 10.Having failed to invoke Section 10(4) Cap. 405 within the statutory timelines, the insurer is estopped from denying liability. Even where the insurer claims a right to seek compensation from its insured that does not absolve the insurer from settling the judgment debt then suing the insured for reimbursement. 11.The Plaintiff has in the submissions set out the following issues for determination a)whether or not there existed a valid policy of insurance covering Motor Vehicle Registration No. KCF 939F owned by Abdille Hassan; b) Whether or not the defendant was duly served with a statutory notice under Section 10(2) of Cap 405; c)whether judgment was lawfully entered against the insured; d)whether or not the defendant is statutorily bound to satisfy the decree. 12.Analysis And Findings: The court has considered the evidence tendered and the plaintiff’s submissions filed. 13.The plaintiff seeks a declaration that the defendant is bound to pay the decretal sum and any liabilities arising out of suit Mariakani CC no 176 of 2018; costs of suit and interest on decreed sum and on costs. 14.The court has considered the submissions evidence tender and finds the plaintiff has proved the case as required. The Plaintiffs’ suit is uncontroverted. 15.The court has considered the plaintiff's submissions; authorities cited all relevant to the issues at hand. The submissions are well reasoned and merited. 16.The court is satisfied that the insurance defendant in this case was duly served with relevant statutory notice and demand letter both in the primary suit and the current suit. The defendant insurance sued here, had insured Nissan X-Trail registration no. KCF 939F at time of accident January 2018. The vehicle was owned by Abdile Hassan alias Abdile Hassan Duwale motor x-trail subject of the primary suit. The insurance policy was in force at the time of the accident. 17.The estate of the deceased in this case and beneficiaries are the third party for purposes of Cap. 405 Section 5 for whose benefit the said insurance policy was taken. This court finds the case of Philip Kimani Gikonyo Vs Gateway Insurance Company Limited (2007) eKLR considered by this court is relevant to the issues at hand. The appeal was allowed against a decision of the lower court which dismissed a declaratory suit. The judge (Alnashir Visram) on 21/11/2007 allowed appeal on ground that there was a judgment in favour of a person injured by the insured driver. The appellant Plaintiff in the declaratory suit was a person whose injury it was mandatory for the owner of the vehicle to insure under section 5 (b) of the Insurance (Motor Vehicle Third Party Risks) Act, cap. 405. The injured person/ appellant was thus entitled to the benefit of the judgment. The judgment was enforceable against the Insurer of the motor vehicle. The appeal was allowed with costs to the appellant in the appeal and the lower court. 18.The court finds the plaintiffs submissions merited. 19.This court finds the defendant insurer of Nissan X-Trail KCF 939F is under statutory obligation to pay plaintiff. A declaration is thus made against the defendant as prayed. The defendant is bound to pay the decretal sum decretal sum Kshs. 3,054,256.00 and consequent costs arising out of Mariakani SPMCC no 176 of 2018 under Section 10 (1) Insurance Motor vehicle Third Party Risks Act Cap. 405. 20.The court finds it just to order interest on the decreed sum at court rates from date of judgment 11/9/2025 (primary suit) until full payment in full. 21.Costs of this suit: It's just to order that the defendant bears plaintiff's costs of the declaratory suit as well as the suit was necessitated by the insurer's failure to pay the decreed sum. The defendant shall bear Plaintiff's costs of this suit. JUDGMENT DATED, SIGNED & DELIVERED THIS 9TH DAY OF JULY 2026T. N. SINKIYIAN,Principal MagistrateIn Presence Of:Plaintiff: AbsentRepresented by: AbsentKagwima Karanja & Co Advocates.Defendant: Absent.Court Assistant: Wesonga.