https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10317

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPEAL NO. E175 OF 2025** **Grace Wairimu Gichiga (Suing as the personal Representative of the Estate of Kenneth Gichiga Mararo – Deceased) APPELLANT** **VS** **DIRECTLINE INSURANCE COMPANY LTD RESPONDENT** ***(Being an appeal from against the whole judgment delivered by the Principal Magistrate’s court at Kiambu by Hon. Neelianne Wambui (RM) on 11th November 2025 in Kiambu Chief Magistrate’s Civil Case No.E 146 of 2025 and the subsequent decree arising therefrom).*** **JUDGMENT** 1. Before this court is an appeal against the Judgment delivered on 11th November 2025. The appellant filed a memorandum of appeal dated 28th November 2025 seeking the following orders: ***a) That the appeal be allowed and an order be made that the respondent be ordered to satisfy the judgment in Kiambu Chief Magistrate’s Court Civil Case No. E018 of 2022- Grace Wairimu Gichinga –vs- Christopher Kuria Wainaina in the sum of Ksh 1,1555,902 with costs and interest till payment in full.*** ***ii) That the costs in the declaratory suit E146 of 2025 and of the appeal be granted to the appellant.*** 2. The memorandum is anchored on the following grounds:- ***i) That the learned magistrate erred in law and fact by holding that the appellant had not proved that the Respondent was the insurer of Motor Vehicle KBU 003K owned by its insured sued in the primary suit Kiambu Chief Magistrates Court civil case No. 18 of 2020- Kennenth Gichinga Mararo –vs- Christopher Kuria Wainaina despite the uncontroverted evidence by the appellant vide the police abstract and statutory notice issued and acknowledged receipt by the respondent.*** ***ii) That the learned magistrate erred in law and fact by failure to hold that acknowledging receipt of the statutory notice issued by the appellant under Section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act and the fact that he respondent did not file a disclaimer suit under Section 10(4) of the Act was sufficient proof that the respondent was liable to satisfy the judgment obtained by the appellant against the respondents insured in the primary suit referred to in ground (1) above, thus the trial magistrate arrive at a wrong decision to the detriment of the Appellant.*** ***v) That the Learned Trial Magistrate erred in law and fact by finding that the Appellant had not proved her case despite sufficient evidence which was uncontroverted by failure on the part of the respondent to adduce any evidence in support of its defence.*** ***iv) That the Learned magistrate erred in fact and law by arriving at a decision that was not based on the evidence on record and thus erroneously made wrong findings on both liability and damages to the detriment of the appellant.*** **Background** 3. The appellant in the primary suit filed a plaint dated 26th March 2025, seeking the following orders. 1. That a declaration be issued that the defendant is bound to satisfy the judgment in Kiambu Chief Magistrates Court Civil Suit No.E018 of 2022 Grace Wairimu Gichinga –vs- Christopher Kuria Wainaina in the sum of Ksh 1,555,902. With costs and interest. 2. At judgment be entered against the defendant for Kshs 1,555,902 with interest at court rate from 5th September 2024 till payment in full. 3. Costs of this suit. 4. Interest on (2) and (3) above at court rate. **Evidence.** 4. The appellant’s case was that the defendant as an authorized insurer issued a Commercial Policy No. 00097483 commencing on 15th November 2020 and expiring on 15th December 2020 to Christopher Kuria Wainaina. That respondent in consideration of the annual premium then agreed to insure the said Christopher Kuria Wainaina in respect of liability which may be incurred out of the used of Motor Vehicle KBU 003K Isuzu Bus/Coach. 5. That the appellant successfully sued motor vehicle KBU 003K vide the judgment in Kiambu Chief Magistrates Court Civil suit No. E018 of 2022, and a decree was issued on 5th September 2024 for Ksh 1,555,902, being the decretal sum. 6. The respondent filed their defence dated 16th April 2025, and denied all the averments contained in the plaint, putting the plaintiff to strict proof thereof. 7. The case was set down for hearing on 21st October 2025. The defendant did not attend the hearing, and thus the case proceeded ex-parte. The plaintiff called the evidence of Grace Wairimu Gichinga who adopted her witness statement dated 26th March 2025, and produced the plaintiff list of Exhibits, as Exhibit no. 1-9. 8. The appeal proceeded by way submissions. The appellant filed submissions, whilst, the Respondent despite having served with the record of appeal, the submissions and the hearing notice did not file their submissions. **The appellant’s submissions.** 9. In their submissions, the appellants acknowledge that the police abstract was dismissed by the trail magistrate, based on the fact that the same did not bear the name of the insurer, which the appellant stated was backed by the statutory notice. 10. It was their view that the trial magistrate was supposed to evaluate the evidence as a whole, and thus it was a great misdirection of the trial court to dismiss their case. **Analysis** 11 .This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. In the case of *Mbogo and Another v Shah [1968] EA 93*, the court stated:“ …that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 12. The Court must remember that it has neither seen nor heard the witnesses. The trial court has observed the demeanor and truthfulness of those witnesses. However, the documents still speak for themselves. The observation of documents is the same as that of the lower court, as parties cannot read the matters extrinsic to them into those documents. In the case *of Peters v Sunday Post Limited [1958] EA 424,* the court therein rendered itself as follows: “It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 13 .The appellate court is not bound necessarily to accept the findings of fact by the court below as held in the case of *Selle & Another v Associated Motor Board Company Ltd. [1968] EA 123,* where the Court stated as follows: “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 14. The burden of proof is on whoever alleges. This is succinctly set out in Sections 107-109 of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46), Cap 80 Laws of Kenya as hereunder:“ 107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 15. The burden of proof was also addressed by the Court of Appeal in the locus classicus case of *Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334,* where the said court held that: “As a general proposition under Section 107 (1) of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46), Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 16 .The burden of proof is neither on the Plaintiff nor the Defendant but on the party that alleges specific matters. It is on the party who alleges. In *Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR* it was held that: “As a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46), Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the [*Evidence Act*](https://kenyalaw.org/akn/ke/act/1963/46) provides the burden lies in that person who would fail fi no evidence at all were given as either side.” 17. A party who persuades the court more than the other of the likelihood of the events in controversy will carry the day. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in *William Kabogo Gitau v George Thuo & 2 Others [2010] 1 eKLR 526* stated that: “In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 18 .The balance of probability standard means that a court is satisfied an event occurred as stated by Lord Nicholls of *Birkenhead in Re H and Others (Minors) [1996] AC 563, 586* that; “The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..” 19. The position is also that the evidence must carry a reasonable degree of probability, but not so high as is required in a criminal case. *In Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR*, the Judges of Appeal held that: “Denning J, in Miller v Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;- “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not. This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.” 20. Having discussed the burden and standard of proof at length, it is not in dispute that thru respondent herein did not defend the suit in the lower court, nor did the file a disclaimer suit as stated by the appellant. Further, even upon being served with the record of appeal and the hearing notice, they did not file any submissions. However, this does not take away the burden imposed on appellant to prove the allegations against the Respondent. 21. In the judgment dated 11th November 2025, while dismissing the appellant’s case, at paragraph 8 of the judgment, the court held as follows:- “8. Upon reading of the police abstract annexed dated 29th March 2022, it states an accident occurred on 16th November 2020 at 1400 Hours between KMFH 420J and KBU 003K, it proceeds to give the Insurance details of the former with the Certificate Number, Policy Number, and commencement date. It is quite evident that the said document bears no details as to who was the insurer of the said motor vehicle and in the absence of this information as submitted by the plaintiff, it is unclear to this court how the plaintiff concluded the defendant herein to be the insurer.” 23. Upon further perusal of the record, it is also not in dispute that the appellant has a judgment against the respondent and, that statutory notice was issued to the insurer either at least 14 days before the filing of the suit wherein judgement has been obtained or within 30 days of filing the suit where judgement has been obtained. 24. In as much the case was defended, it was incumbent upon to prove, on a balance of probabilities the twin issues that the motor vehicle was insured by the respondent and that the appellant was a person covered by the insurance policy. The appellant heavily relied on the contents of the police abstract and the fact that the statutory notice was served and acknowledged by the respondents. 25. I concur with the learned trial magistrate that the details provided in the police abstract do not in any way make mention of the respondent as the insurer of the accident motor vehicle. Though the policy number is provided, as rightly pointed out by the learned trial magistrate, there is nothing to show that the insurer was Directline Insurance Company, the respondent herein. 26. It is not in dispute that a statutory notice dated 21st April 2021 and a response dated 22nd April 2021 by the respondent was addressed to the appellant, vide which the respondent stated that the acknowledgment of receipt should not be construed as an admission of liability on the part of their insured. 27. Liability in the Primary suits affects the Respondent upon issuance of judgement and the Court finds that the Respondent is indeed liable to satisfy the decrees therein and that the injured were persons insured under the policy. 28. *In Francis Mwobobia v Invesco Insurance Co. Limited; Mwirigi Muguna Nkoroi (Intended Interested Party/Applicant) [2021] eKLR* the Court held that “ “upon entry of judgment in such accident claims where the Defendant was insured, Section 10 of the Insurance Motor Vehicle Third Party Risks) Act requires the insurer to settle the decretal amount as awarded and in accordance with the provisions of the Act. It is however not always the case that the insurers willingly settle the claim and this necessitates the filing of a declaratory suit to compel the insurer to settle the decree.” 29. According to the Act, the Respondent can only indemnify parties who are insured under the policy. If the Respondent is compelled to take up the primary suits only for the same to be determined that it had no obligation to do so then it will suffer prejudice. 30. Can one say that the evidence contained in the police abstract and the service and acknowledgment of the Statutory Notice was is sufficient evidence of the Respondent had insured the accident motor vehicle? 31. The Appellant did not prove the existence of the policy and only relied on the police abstract. A certificate of insurance is issued by an insurer to its insured and a victim of a road traffic accident would ordinarily not have access to it. It is a document in the special knowledge and possession of the insurer and the insured. The victim only gets information of the accident, including information on the insurer and details of the policy of insurance, from the police following investigation on the accident. Details of the policy of insurance are provided by the police through the police abstract. The appellant produced the police abstract without some the details of the policy of insurance, more particularly the name of insurer. No explanation was given by the appellant on how they linked the policy number with the respondent herein. 32. Therefore, liability upon the respondent insurance company under section 10 of the Act was not proved on a balance of probabilities. Nothing stopped the appellant from conducting further investigations in regard to the full particulars of the insurer. 33. In the upshot, I find the learned magistrate did err, and rightly appreciated the fact in law and facts in arriving at the decision. 34. The appeal is hereby with dismissed with no orders to costs. **DELIVERED, DATED, AND SIGNED ON THIS 8TH DAY OF JULY, 2026.** **JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.** **MARTHA MUTUKU** **JUDGE** In the presence of: - Mr. Kerongo h/b for Mr. Nyachoti K. for the Appellant No appearance for the Respondent Court Assistant- Mr. Kibet