[2021] KEHC 2660 (KLR)
The court held that the trial court erred in requiring the certificate of insurance as the only acceptable proof of insurance coverage. The police abstract produced by the appellant, which contained the relevant policy number, was sufficient to establish, on a balance of probabilities, that there was a valid...
Source-derived case information.
- Citation
- [2021] KEHC 2660 (KLR)
- Parties
- Appellant: Isaya Omulima; Respondent: Invesco Assurance Limited
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 171 of 2018
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- DN Musyoka
- Legal Topics
- Declaratory Orders, Burden of Proof, Insurance Contracts, Evidence of Insurance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaya Omulima
Appellant
Invesco Assurance Limited
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether a police abstract is sufficient evidence to prove the existence of an insurance contract for purposes of enforcing a judgment against an insurer.
- 2 Whether the trial court erred in requiring a certificate of insurance as the only acceptable proof of insurance coverage.
Ratio Decidendi
The court held that the trial court erred in requiring the certificate of insurance as the only acceptable proof of insurance coverage. The police abstract produced by the appellant, which contained the relevant policy number, was sufficient to establish, on a balance of probabilities, that there was a valid insurance policy in force at the material time. Once this was established, the burden shifted to the respondent to prove otherwise. The respondent failed to discharge this burden. Accordingly, the dismissal of the appellant's suit by the trial court was set aside and substituted with an order allowing the suit as prayed in the plaint.
Court Disposition
appeal allowed
Orders
- The order dismissing Kakamega CMCCC No. 313 of 2017 is set aside.
- The suit in Kakamega CMCCC No. 313 of 2017 is allowed in terms of prayers (a), (b), and (c) of the plaint dated 7th July 2017.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL APPEAL NO. 171 OF 2018
(An appeal arising from the judgment and decree of the Hon. W. Lopokoiyit,
Resident Magistrate (RM),inKakamega CMCCC No. 313 of 2017,
of 29th November 2018)
ISAYA OMULIMA............................................................................................APPELLANT
VERSUS
INVESCO ASSURANCE LIMITED............................................................RESPONDENT
JUDGMENT
1. The suit at the trial court was initiated by the appellant herein against the respondent, for a declaratory order that the respondent, who had insured the accident vehicle in Kakamega CMCCC No. 204 of 2014, in favour of one Bernard Kariuki, was bound to satisfy the decree of the court made in that suit, to the tune of Kshs. 408, 590. 00. At the trial, the appellant produced a police abstract to support his case, saying that the same bore a policy number, which was evidence that the accident vehicle had been covered by the respondent.
2. In the end, the trial court made a finding, that the only document that could prove existence of a contract of insurance was a certificate of insurance, and that since such evidnce was not brought forth, the case by the apellant had failed, and was dismissed. The appeal before me arose from that finding.
3. The appeal herein turns on only one issue, eventhough four grounds are listed, whether the certificate of insurance was the only way to establish liability on the part of an insurer.
4. It was held, in APA Insurance Co. Ltd vs. George Masele [2014] eKLR (Mabeya J), that a police abstract was good enough as evidence that there had been a policy of insurance in force, and that it was unreasonable to expect the injured victim to produce a certificate of insurance, given that he was not privy to the contract between the insured and the insurer, and that the details, as captured in the police abstract, are from the certificate of insurance affixed to a motor vehicle or supplied by the insured.
5. I agree entirely with APA Insurance Co. Ltd vs. George Masele [2014] eKLR (Mabeya J). The trial court need not have looked further than from the police abstract. The appellant had established on a balance, from the police abstract, that there was a valid insurance policy in force, and the burden shifted to the respondent to prove otherwise.
6. Consequently, it is my finding that the appeal herein has merit, and I hereby find in favour of the appellant. The order made, in Kakamega CMCCC No. 313 of 2017, dismissing the said suit, is hereby substituted with an order allowing the same in terms of prayers (a), (b) and (c) of the plaint, dated 7th July 2017. The appeal herein is allowed in those terms.
DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 29th DAY OF October 2021
W. MUSYOKA
JUDGE