https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7957

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CIVIL APPEAL NO. E216 OF 2025 FIDELITY SHIELD INSURANCE CO. LTD ………………..… APPELLANT JAMES FRANK EMISIKO alias OSIAKO ……….…………. RESPONDENT - VERSUS - (Being an appeal from the judgment and decree of Hon. M. Ochieng, SPM delivered on the 17/9/2025 in Maseno MCCC No. 162 of 2021, James Frank Emisito alias Osiako vs Fidelity Shield Insurance Company Ltd) J U D G M E N T 1. By a Plaint dated 29/11/2021, the respondent sued the appellant for a declaration that it was bound to pay a sum of Kshs.1,215,050/- in respect of the decree made in Maseno PMCC No. 54 of 2019 James Frank Emisiko alias Osiako vs Daniel Opiyo Oluoch & Another (‘the primary suit’). 2. The appellant appeared and denied the claim in toto vide a defence dated 18/1/2022. It denied the filing of the primary suit, existence of any insurance between itself and the defendants in the primary suit or issuance of the requisite statutory notices. 3. By a judgment made on 17/9/2025, the trial court ruled in favour of the respondent and made the declaration against the appellant plus interest and costs. Page 1 of 10 4. Aggrieved by that decision, the appellant lodged this appeal vide a Memorandum of Appeal dated 7/10/2025 setting out 6 grounds which may be summarized as follows: - a) That the trial court erred in law and fact by holding that the respondent had complied with the mandatory provisions of section 10(2) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 against the weight of evidence. b) That the trial court erred in disregarding the binding authorities relied on by the appellant and shifting the burden of proof to the appellant against the provisions of the Evidence Act. 5. This being a first appeal, this Court is bound to analyse and re-appraise the evidence afresh in order to come up with its own independent findings and conclusions but at all times having in mind that it never saw the witnesses testify. See Selles & Anor vs Associated Motor Boat Co. Ltd & Others (1968) EA 123. 6. At the trial only the respondent testified. He adopted his witness statement dated 29/11/2021 as his evidence in chief and produced his documents as PExh1 to 11. His evidence was that on 24/3/2019, he was a pillion passenger aboard Motorcycle Reg. No. KMEE 595V along Busia-Kisumu Road when at about 11.30am, at Ebusakami area, he was hit by Motor Vehicle Reg. No. KCH 694C Toyota Fielder Page 2 of 10 which was being driven at high speed from the opposite direction. He sustained various injuries. 7. Subsequently, he filed the primary suit wherein judgment was made in his favour for a total sum of Kshs.1,215,050/-. That before filing the said primary suit, all the requisite notices were served upon the insurers of the defendants in that suit, being the appellant. 8. In cross examination, he told the court that he had testified in the earlier case. That the defendants in that case did not turn up in court. That he had notified the appellant of the primary suit through the post. That the insurance stickers had the names of the said defendants on it. 9. The respective parties filed their submissions dated 13/2/2026 and 12/1/2026, respectively. These were ably highlighted by Learned Counsel on 23/2/2026. The court has considered them carefully. 10. It was the appellant’s submission that there was no compliance with section 10(2) (a) of the Insurance (Motor Vehicles Third Party Risks) Act Cap 405. That that notice is to be made before or within 30 days of filing suit. That such notice was not before the trial court. Only a letter which was not supported by any evidence of service. That the trial court confused that notice with a demand letter. Page 3 of 10 11. For the respondent, it was submitted that the requisite notice was served upon both the defendants in the primary suit and the appellant. That there was an affidavit of service dated 4/6/2019 filed on 16/7/2019. That the notice was dated 6/5/2019. That the issue of the notice was raised in cross-examination and the respondent testified on it. That the appellant did not produce any witness to refute the claims by the respondent on the notice. 12. As stated above, there are only 2 grounds for consideration, whether the notice under section 10(2) (a) of Cap 405 had been issued or not and whether the trial court shifted the burden of proof to the appellant. 13. The starting point is the section under contention. Section 10(2) provides: - “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 (b) in respect of any judgment, so long as execution thereon is stayed pending an appeal; or Page 4 of 10 (c) in connection with any liability if, before the happening of the event which was the cause of the death or bodily injury giving rise to the liability, the policy was cancelled by mutual consent or by virtue of any provision contained therein, and either: - (i) before the happening of the event the certificate was surrendered to the insurer, or the person to whom the certificate was issued made a statutory declaration stating that the certificate had been lost or destroyed; or (ii) after the happening of the event, but before the expiration of a period of fourteen days from the taking effect of the cancellation of the policy, the certificate was surrendered to the insurer, or the person to whom the certificate was issued made such a statutory declaration as aforesaid; or (iii) either before or after the happening of the event, but within a period of twenty-eight days from the taking effect of the cancellation of the policy, the insurer has notified the Registrar of Motor Vehicles and the Page 5 of 10 Commissioner of Police in writing of the failure to surrender the certificate.” 14. From the foregoing, it is clear that for an insurer to be liable under that section, a notice of such proceedings must be given before or within 30 days of the commencement of the suit. The purpose of the notice is to give an insurer an opportunity to protect its interest by either defending the claim or settle the same on favourable terms. 15. In General Accident Assurance vs Mbijiwe (suing as the Administrator of the estate of the late Lewis Gichunge Mbijiwe & Anor (2025) KECA 1865 (KLR), the Court of Appeal held: - “This statutory requirement is, in our view, couched in mandatory terms and it is a condition precedent to the insurers liability. We would add that the statutory notice under section 10(2) (a) is not a mere technicality; it is a fundamental requirement which must be complied with before an insurer can be made liable. Failure to give such notice disentitles the claimant from enforcing judgment against the insurer. Section 10(2) (a) does not specify the exact form that the required Page 6 of 10 notice must take. However, the notice must be formal and unequivocal, clearly indicating the proceedings had been or are about to be instituted. A mere intimation that proceedings might be brought, without definite indication of such intension is insufficient compliance with the provision.” 16. From the foregoing, it is clear that the notice under section 10(2) (a) of Cap 405 is a condition precedent before any liability can attach on an insurer on a policy issued by it. In this regard, for a suit based under section 10(2) (a) aforesaid, a claimant must establish that; the subject motor vehicle of the accident was insured by the particular insurer, the claimant has a judgment in his favour, that the claimant issued the statutory notice upon the insurer within the specified time and that the judgment has not been settled. 17. In the present case, the only issue is whether the statutory notice was issued or not. The appellant denies the fact while the appellant contends otherwise. Under section 107 and 108 of the Evidence Act, it is he who alleges that must prove. It was for the respondent to prove that he had issued and served the appellant with the requisite notice. Page 7 of 10 18. In his plaint and testimony, the respondent told the court that the notice had been issued and served upon the appellant. The appellant denied this in its defence. That denial in the defence shifted the evidentiary burden of proof to the respondent. It was the respondent to go beyond a mere statement on oath that the notice had been issued. 19. In his testimony, the respondent reiterated that fact and stated in cross examination, thus: - “I informed the Defendant in this case of the other case. I wrote a letter and sent it through post. I don’t recall the date. The Defendant in this case was their insurer. My lawyer sent them a notice. My lawyer did not give me a copy of the letter.” 20. With such cross-examination, a doubt had been raised as to the issuance and service of the notice. When was the notice issued? What date? When and how was service effected? Was it before or within 30 days after the suit was lodged? It was expected that in re-examination, the respondent would have identified the Notice he was referring to amongst the bundle of his documents that he had procuded now that he did not know of its date. He was also required to state how it was effected. This he did not do and the burden still laid with him. Page 8 of 10 21. I have carefully considered the record. there are two notices to the appellant. The first is dated 6/5/2019, 4 days before the primary suit was lodged. It is indicated that it was sent by registered post. The certificate of registered post for that notice was not produced. The certificates produced were dated or sent on 25/10/2021. These were in respect of Notice of Entry of Judgment. That is not the notice under section 10(2) (a) of the Act. 22. The other formal notice is dated 20/5/2019. It is clearly indicated “NOTICE OF INSTITUTION OF SUIT”. However, it is not clear how it was served upon the appellant. Was it sent by post? Or, was it personally served? The appellant having denied notice of the primary suit, it was incumbent upon the respondent to show or prove to court how that notice was effected. At the time of highlighting the written submissions, Counsel for the respondent alluded to an affidavit of service dated 4/6/2019 filed in Court on 16/7/2019. I have perused both the Record of Appeal and the Original Trial Court record but I did not see the same. 23. I dare say that, the mere existence of a notice is not enough. Once the insurer denies the same, proof of service of the same is imperative. That is the only way a claimant can bring himself within the purview of section 10(2) (a) of the Act, Cap 405. Page 9 of 10 24. In the present case, the respondent only stated that the notice had been issued. When challenged to show whether it was served, he offered no evidence. In the circumstances, there was no need of the appellant to call any witness to deny that it had not been served. Service having not been proved, evidence in rebuttal was not required. That ground succeeds. 25. Corollary to the foregoing is the complaint that the trial court shifted the burden of proof to the appellant. That complaint is not without basis. It was not for the appellant to show that it had not been served, but rather for the respondent to prove that he had issued and served the notice and effectively bring himself within the purview of section 10(2) of Cap 405. Thus he failed to do. That ground also succeeds. 26. In the premises, I find the appeal to be meritorious and allow the same with costs. It is so decreed. DATED and DELIVERED at Kisumu this 5th day of June, 2026. A. MABEYA, FCI Arb JUDGE Page 10 of 10