https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11140

 **REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE'S COURT AT MILIMANI** **CIVIL SUIT NO. E3349 OF 2024** **JOAN ATIENO OWUOR.............................................................PLAINTIFF** **-VERSUS-** **DIRECTLINE ASSURANCE COMPANY LIMITED.....................DEFENDANT** **JUDGMENT** **Introduction** The Plaintiff, Joan Atieno Owuor, instituted this declaratory suit against the Defendant, Direct line Assurance Company Limited, pursuant to the provisions of Sections 10(1) and 10(2) of the Insurance (Motor Vehicles Third Party Risks) Act, Cap. 405 Laws of Kenya. The suit seeks to enforce the statutory obligation imposed upon insurers to satisfy judgments entered against their insured persons in respect of Third-Party Motor Vehicle risks. The Plaintiff's case is that on 13th December 2019, she sustained injuries in a road traffic accident involving Motor Vehicle Registration number KCL 239A Mitsubishi FH, which at the material time was insured by the Defendant. Consequently, she instituted **Milimani CMCC No. E3436 of 2020,** **Joan Atieno Owuor -Vs- Wilson Kamunya Chege & Julius Kuria Mungai,** against the owner and driver of the said Motor Vehicle. Judgment was entered in her favour on 26th October 2023. A decree and certificate of costs were subsequently extracted. The Plaintiff contends that despite serving the Defendant with the statutory notice required under Section 10(2) of the Insurance (Motor Vehicles Third Party Risks) Act together with demand notices, the Defendant has failed and/or refused to satisfy the decretal sum. The Plaintiff therefore seeks a declaration that the Defendant is liable to satisfy the Judgment obtained in the primary suit together with interest and costs. The Plaintiff seeks: 1. A declaration that the Defendant is bound to satisfy the Judgment entered in **Milimani CMCC No. E3436 of 2020**. 2. Judgment against the Defendant for **Kshs. 310,934** together with accrued interest. 3. Costs of this suit. 4. Interest on the decretal sum and costs. 5. Such further relief as this Court may deem just. The Defendant entered appearance and filed a Statement of Defence in which it denied liability in its entirety. It specifically denied that it had insured Motor Vehicle Registration Number KCL 239A, denied having received the statutory notice required under Section 10(2) of the Insurance (Motor Vehicles Third Party Risks) Act, denied receipt of any notice of intention to institute the present declaratory suit, and further denied that it was under any legal obligation to satisfy the decree arising from the primary suit. The Defendant also disputed the existence of any enforceable judgment capable of binding it and contended that the Plaintiff had failed to prove the existence of a valid insurance policy issued by the Defendant in respect of the subject motor vehicle. Consequently, it maintained that any judgment obtained against the owner or driver of the motor vehicle could not be enforced against it. At the hearing, the Plaintiff called one witness, PW1, Corporal Joan Atieno Owuor, who adopted her Witness Statement dated 31st July 2024 as her evidence-in-chief. She also produced the Plaintiff's bundle of documents comprising the Police Abstract, the Judgment in Milimani CMCC No. E3436 of 2020, the Decree, the Certificate of Costs, the Statutory Notice, the Demand Letter, and insurance policy details relating to Motor Vehicle Registration Number KCL 239A. PW1 testified that Judgment had been entered in favour of the Plaintiff against the owner and driver of the offending Motor Vehicle and that despite service of the statutory notice and subsequent demand upon the Defendant, the decree remained unsatisfied. She maintained that the Defendant was the insurer of the Motor Vehicle involved in the accident and urged the Court to compel it to satisfy the decretal sum in accordance with the law. During Cross-Examination, Counsel for the Defendant questioned the witness on the existence of the insurance policy and the service of the statutory notice. PW1 remained steadfast that the Defendant had insured the subject motor vehicle and confirmed that the statutory notice had been duly served upon the Defendant. Despite challenging the Plaintiff's evidence through cross-examination and having filed a defence, the Defendant did not call any witness or produce any documentary evidence to rebut the Plaintiff's testimony or challenge the authenticity of the documents produced. The defence thereafter closed its case without tendering evidence. Upon the close of the hearing, the Court directed the parties to file written submissions. The Plaintiff duly complied, while the Defendant did not file any submissions. In its Written Submissions, the Plaintiff submits that it had satisfied all the statutory requirements under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. Counsel submitted that the Plaintiff had obtained a valid judgment against the insured, that the decree remained unsatisfied, that the requisite statutory notice had been duly served upon the Defendant, and that the Defendant had insured the offending motor vehicle. It was further submitted that the Defendant had not obtained any declaration under Section 10(4) of the Act avoiding liability and was therefore under a statutory obligation to satisfy the Judgment. In support of these submissions, counsel relied on **Corporate Insurance Co. Ltd -Vs- Elias Okinyi Ofire [1999] eKLR** and **Directline Assurance Co. Ltd -Vs-Lilian Mutemi [2016] eKLR**, and urged the Court to enter Judgment in favour of the Plaintiff as prayed. The Defendant, having failed to file submissions, left the Plaintiff's submissions uncontroverted. **Analysis and Determination** Having considered the pleadings, the oral evidence, documentary exhibits, the Plaintiff's submissions and the applicable law, I find that the following issues arise for determination: 1. Whether the Plaintiff complied with the requirements of Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. 2. Whether the Defendant is liable to satisfy the judgment in Milimani CMCC No. E3436 of 2020. 3. Whether the Plaintiff is entitled to the reliefs sought. **(i) Whether the Plaintiff complied with the requirements of Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act** Section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act imposes a mandatory statutory obligation upon an insurer to satisfy a Judgment obtained against a person insured under a third-party motor vehicle insurance policy, provided the statutory requirements have been met. To succeed in the present claim, the Plaintiff was required to demonstrate that a valid judgment had been entered against the insured, that the subject motor vehicle was insured by the Defendant at the material time, that the Judgment remained unsatisfied, and that the requisite statutory notice had been duly served upon the Defendant. In support of these requirements, the Plaintiff produced the Judgment, Decree, Certificate of Costs, Police Abstract, and Statutory Notice. There was no evidence placed before the Court to show that the judgment had been appealed against, reviewed, varied, set aside, or satisfied. Accordingly, the Court is satisfied that the Plaintiff established all the statutory prerequisites necessary to invoke the Defendant's liability under Section 10(1) of the Act. The Court of Appeal in **Corporate Insurance Company Ltd -Vs- Elias Okinyi Ofire [1999] eKLR** held that once the statutory requirements under Section 10 are fulfilled, the insurer is bound to satisfy the Judgment unless it has lawfully avoided liability under the Act. I therefore find that the Plaintiff complied with all the statutory requirements under Section 10. **(ii) Whether the Defendant is liable to satisfy the decree** The Defendant's Defence consisted of denials that it insured the Motor Vehicle and that it received statutory notice. However, the Defendant called no witness whatsoever. The law is settled that pleadings are not evidence.In **CMC Aviation Ltd -Vs- Cruisair Ltd (No.1) [1987] KLR 103**, the Court of Appeal held that pleadings contain allegations only and cannot amount to evidence. Likewise, in **Trust Bank Ltd -Vs-Paramount Universal Bank Ltd & 2 Others [2009] eKLR**, the Court held that averments contained in pleadings remain mere allegations unless proved by evidence. The Defendant merely cross-examined PW1 but chose not to tender any evidence rebutting the Plaintiff's documentary exhibits. Cross-examination alone does not amount to evidence. A party who wishes the Court to accept its version of events must place evidence before the Court. Further, the Defendant did not demonstrate that it had obtained a declaration under Section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act avoiding liability under the policy. In **Directline Assurance Co. Ltd -Vs- Lilian Mutemi [2016] eKLR**, the Court held that an insurer cannot escape liability simply by denying the existence of an insurance policy. Unless the insurer obtains a declaration avoiding the policy under Section 10(4), it remains liable to satisfy judgments entered against its insured. Similarly, in **Blue Shield Insurance Co.Ltd -Vs-Raymond Buuri M'Marete [2020] eKLR**, the Court of Appeal reaffirmed that the statutory obligation under Section 10 can only be avoided where the insurer has successfully obtained a declaration under Section 10(4). No such declaration was produced before this Court. I therefore find that the Defendant is liable to satisfy the decree issued in **Milimani CMCC No. E3436 of 2020.** **(iii) Whether the Plaintiff has proved her case on a balance of probabilities** The legal burden of proof rested upon the Plaintiff pursuant to Sections 107, 108 and 109 of the Evidence Act. In discharge of that burden, the Plaintiff adduced both oral and documentary evidence establishing the occurrence of the accident, the existence of the Judgment entered in the primary suit, the resultant decree, the certificate of costs, the insurance policy covering the subject motor vehicle, the statutory notice issued to the Defendant, and the Defendant's failure to satisfy the decretal sum. This evidence was sufficient to establish the Plaintiff's claim on a balance of probabilities, thereby shifting the evidential burden to the Defendant to rebut the Plaintiff's case. However, the Defendant failed to call any witness or tender any evidence in support of its Defence. Consequently, the Plaintiff's evidence remained uncontroverted and unchallenged. In **Motex Knitwear Ltd -Vs- Gopitex Knitwear Mills Ltd [2009] eKLR**, the Court held that where a Defendant fails to adduce evidence, the Plaintiff's evidence remains uncontroverted and the defence amounts to mere allegations. Similarly, in **Autar Singh Bahra & Another -Vs- Raju Govindji HCCC No. 548 of 1998**, Ringera J held that where no evidence is called in support of a Defence, the Defence remains a mere statement of facts and the plaintiff's evidence stands unchallenged. The Plaintiff's evidence therefore remains credible, consistent and uncontroverted. I am satisfied that she has proved her claim on a balance of probabilities. **Conclusion and Final Orders** Upon evaluating the pleadings, the oral testimony, documentary evidence and the applicable law, I am satisfied that the Plaintiff has established all the statutory conditions necessary to sustain a declaratory suit under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. The Defendant's Defence remained unsupported by any evidence. Although counsel cross-examined the Plaintiff's witness, no witness was called to rebut the Plaintiff's evidence or to substantiate the denials contained in the Statement of Defence. Equally, the Defendant failed to demonstrate that it had obtained a declaration under Section 10(4) avoiding liability under the insurance policy. The Plaintiff's evidence therefore stands uncontroverted. In the absence of any legal basis for avoiding statutory liability, the Defendant is obligated to satisfy the judgment entered against its insured in **Milimani CMCC No. E3436 of 2020.** Accordingly, Judgment is hereby entered in favour of the Plaintiff against the Defendant as follows: 1. ***A declaration is hereby issued that the Defendant, Directline Assurance Company Limited, is legally bound to satisfy the Judgment, decree and certificate of costs issued in Milimani CMCC No. E3436 of 2020, Joan Atieno Owuor –Vs- Wilson Kamunya Chege & Julius Kuria Mungai.*** 2. ***Judgment is entered against the Defendant in the sum of Kshs. 310,934.00 together with accrued interest as reflected in the Decree issued in Milimani CMCC No. E3436 of 2020.*** 3. ***The decretal sum shall attract interest at court rates from the date of the Judgment in the primary suit until payment in full.*** 4. ***The Plaintiff is awarded the costs of this suit together with interest thereon at court rates until payment in full.*** 30 Days Right of Appeal. **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **15.7.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 15TH DAY OF JULY 2026** **In the presence of:** M/s Masika for the Plaintiff M/s Okello Holding Brief for Mr. Ouko for the Defendant Court Assistant: Phoebe.