https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12000

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E159 OF 2024** **JUBILEE GENERAL INSURANCE LIMITED …………. APPELLANT** **Versus** **ANTHONY MUNENE ……… RESPONDENT** **JUDGEMENT** **Introduction** 1. This appeal arises out of the judgement of the Magistrates Court in Meru CMCC No. E334 of 2022 delivered on 11/09/2024. The Respondent was the Plaintiff in Meru CMCC No. E334 of 2022 in which he sought to have the Appellant held statutorily liable to satisfy the liability against its insured in Meru CMCC No. E441 of 2021 (primary suit) where the Respondent had obtained a judgement of a sum of Kshs. 400,626/= against the insured. 2. The trial court found the Appellant statutorily liable in the declaratory suit. Aggrieved by the judgement, the Appellant instituted the present appeal vide a memorandum of appeal dated 13/09/2025 with the following listed grounds; 1. THAT the Learned Trial Court Magistrate erred in Law and in fact in failing to critically analyze and consider the evidence at hand and thus arrived at an erroneous finding on the issues at hand. 2. THAT the Learned Trial Court erred in law and in fact in failing to find that the plaintiff had not proved his case against the defendant. 3. THAT the Learned Trial Magistrate erred in law and in fact in failing to consider and rightly apply the law on enforcement of judgments against insurers as set out under Section 10 Insurance (Motor Vehicles Third Party Risks) Act as read together with Section 5. 4. THAT the Learned Trial Court erred in Law and in fact in shifting the burden of proof from the plaintiff to the defendant. 5. THAT the Learned Trial Magistrate erred in Law and in fact in finding and holding that the appellant had not demonstrated that the plaintiff was an employee of the insured and thus exempted from the risks covered under the subject insurance cover. 6. THAT the Learned Trial Magistrate erred in Law and in fact in failing to critically consider and analyze the evidence tendered and the appellants submissions and thus arrived at the erroneous finding. 3. The Appellant prays for the trial court’s judgement/decree to be set aside, for the Respondent’s suit to be dismissed and costs be awarded to the Appellant. 4. The appeal was canvassed by way of written submissions. **Appellant’s submissions** 1. The Appellant in its written submissions dated 28 January, 2026 claims that the trial court's Judgment delivered on 11th September 2024 in Meru CMCC No. E334 of 2022, holding it liable in a declaratory suit to satisfy the judgment secured against its insured in the primary suit, was erroneous and against the weight of evidence. The Appellant contends that the Learned Magistrate erred in shifting the burden of proof from the Respondent to the Appellant, failed to critically analyze the evidence at hand, and wrongly held that the Appellant failed to prove that the Respondent was an employee of the insured and thus exempted from the risks covered under the subject insurance policy. 2. On whether the Respondent was an employee of the insured and thus exempted from the statutory liability under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, the Appellant submitted that the Respondent in his own pleadings in the primary suit was categorical that he was aboard the motor vehicle as an employee of the insured, and in his own evidence confirmed that he was a turnboy/conductor on a temporary basis. 3. The Appellant further submitted that the claim form produced as an exhibit clearly identified the Respondent as a loader, and the policy schedule under clause 15 expressly exempted employees from the risks covered. The Appellant relied on ***Kenyan Alliance Insurance Company Limited v Naomi Wambui Ngira & another* [2021] eKLR**, where the Court held that where a deceased was an employee of the insured travelling as a turnboy, he was not a person who could benefit from the cover entered into between his employer and the insurer, and compelling the insurer to settle such a judgment would confer an unnecessary benefit on an undeserving party while punishing the insurer for that which it did not contract. The Appellant submitted that the statutory liability under Section 5(b)(i) of the Insurance (Motor Vehicles Third Party Risks) Act exempts claims involving employees, and the specific insurance policy expressly excluded such risks, and prayed for the appeal to be allowed, the trial court's judgment set aside, and the Respondent's suit dismissed with costs. **Respondent’s submissions** 1. The Respondent in his written submissions dated 26th June, 2026, opposes the Appeal and contends that the trial court's Judgment delivered on 11th September 2024, holding the Appellant liable to indemnify him under the insurance policy, was sound and properly entered in his favour. The Respondent argues that the Appellant did not deny that it had insured motor vehicle registration number KBT 943Z, and it was not in dispute that the Respondent, as a third party in the said motor vehicle, suffered bodily injuries and was entitled to be covered and protected by the insurance policy. The Respondent relies on ***Directline Assurance Company Limited v Mwangi* [2024] eKLR** for the four-fold test under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405, submitting that all conditions were met: the motor vehicle was insured by the Appellant, the Respondent has a judgment in his favour against the insured, statutory notice was issued, and the Respondent was a person covered by the insurance policy. 2. On whether the Appellant discharged the burden of proving that the Respondent was an employee of the insured and thus exempted from liability under Section 5(b)(i) of the Act, the Respondent submitted that the Appellant having asserted that it was entitled to avoid liability by dint of an existing employment relationship, it ought to have discharged the burden of proof under Sections 107, 109, and 112 of the Evidence Act. The Respondent argued that the Appellant did not place any material on record to prove that he was an employee, failing to produce any contract of employment, appointment letter, terms and conditions, or salary payable, and did not call the legal representative of its insured to corroborate the existence of the employment relationship. The Respondent relied on ***Evans Otieno Nyakwana v Cleophas Bwana Ongaro* [2015] eKLR** for the principle that he who alleges must prove. The Respondent submitted that the Appellant cannot fault the trial court for raising the issue of employment when it failed to adduce evidence on how it was entitled to avoid liability, and prayed for the appeal to be dismissed with costs. **Analysis and determination** 1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 2. In ***Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR*** the Court of Appeal stated that: ***“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this 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.”*** 1. In view of the above, I have perused and considered the evidence adduced before the trial court, grounds of appeal together with submissions by the parties and consider the only issue for determination being whether the Appellant is liable to indemnify the Respondent under the insurance policy. 2. Section 10(1) of the Insurance (Motor vehicle Third Party Risks) Act provides as follows; ***“10. Duty of insurer to satisfy judgments against persons insured.*** *(1)If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of*[*section 5*](https://new.kenyalaw.org/akn/ke/act/1945/12/eng%402022-12-31#sec_5)*(being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.* *Provided that the sum payable under a judgment for a liability pursuant to this section shall not exceed the maximum percentage of the sum specified in*[*section 5*](https://new.kenyalaw.org/akn/ke/act/1945/12/eng%402022-12-31#sec_5)*(b) prescribed in respect thereof in the Schedule…”* 1. Section 5(b) of the Act, referred to in Section 10(1) above, sets out the persons and risks a motor vehicle policy must cover, and the exception to that duty which is relevant to this appeal. It provides in part; ***“5. Requirements in respect of insurance policies.*** *In order to comply with the requirements of*[*section 4*](https://new.kenyalaw.org/akn/ke/act/1945/12/eng%402022-12-31#sec_4)*, the policy of insurance must be a policy which—* *(a) …* *(b)insures such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the vehicle on a road:* *Provided that a policy in terms of this section shall not be required to cover—* *(i)liability in respect of the death arising out of and in the course of his employment of a person in the employment of a person insured by the policy or of bodily injury sustained by such a person arising out of and in the course of his employment; or* *(ii) …”* 1. The Appellant argues that it should not be held liable under the declaratory suit because the Respondent was an employee of its insured when the accident occurred. 2. Clause 15 of the policy of insurance issued by the Appellant in respect of motor vehicle registration number KBT 943Z mirrors the statutory exception under section 5 of the Act. It excludes the Appellant's liability for death of or injury to any person in the employment of the insured, where the death or injury arises out of or in the course of that employment. 3. It was not disputed at the trial, and is not disputed on this appeal, that the Appellant had insured the motor vehicle under policy cover Number P/101/1001/2019/004115/01, that the Respondent obtained judgment against the Appellant's insured in the primary suit for Kshs. 400,626/=, and that the other statutory conditions under Section 10 of the Act were met. The only live issue, both before the trial court and on this appeal, is therefore whether the Respondent was, at the time of the accident, a person in the employment of the insured within the meaning of Section 5(b)(i) of the Act and clause 15 of the policy, so as to exempt the Appellant from the duty to satisfy the decree. 4. On who carries the burden of proving this exception, the trial court held, and both parties agree, that the burden lay on the Appellant. This accords with Section 107(1) of the Evidence Act, which provides that whoever desires a court to give judgment on a right or liability depending on facts he asserts must prove that those facts exist. The Appellant, having raised the exception under Section 5(b)(i) of the Act and clause 15 of the policy as its ground for declining to settle the decree, carried the burden of proving that the Respondent was an employee of the insured and that his injury arose out of and in the course of that employment. 5. The trial court found that the Appellant did not discharge this burden. The Appellant's only witness, Mary Wanjiru Nganga, its legal officer, testified that the Respondent was a loader of the motor vehicle, relying on a claim form completed by the insured. On cross-examination, she admitted that she did not have a written contract of employment. The Appellant did not call the insured or the insured's legal representative to confirm the Respondent's employment, its date of commencement, its terms, or the pay attached to it, and did not call the accident investigator to produce a report confirming that the Respondent was an employee. On this evidence alone, there would be no basis to disturb the trial court's finding. 6. However, I have looked at the record of appeal and it is evident that at paragraph 4 of the primary suit, Meru CMCC No. E441 of 2021, the Respondent pleaded that he was lawfully travelling as an employee on the motor vehicle at the time of the accident. In ***Migore v South Nyanza Sugar Co. Ltd [2018] eKLR***, the High Court held that; ***“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded…”*** 1. On cross-examination in the declaratory suit, the Respondent stated that he was not employed by the owner of the motor vehicle. The Respondent's evidence in the declaratory suit was that he worked temporarily as a turnboy or conductor, called upon by the driver as needed. This account, read together with the claim form identifying him as a loader, and his own pleading in the primary suit that he was travelling as an employee points to a conclusion that the Respondent performed casual work for the driver or owner of the motor vehicle in connection with its operation, in exchange for some form of payment or benefit, and was for that reason in the employment of the insured at the material time. 2. In ***Kenyan Alliance Insurance Company Limited v Naomi Wambui Ngira & another*** [2021], the court held that; ***“…What matters is whether the injured person was, in substance, engaged by the insured to perform work in connection with the vehicle...”*** 3. I therefore find that the Appellant discharged its burden of proving that the Respondent was in the employment of the insured, and that his injuries arose out of and in the course of that employment. It follows that the Respondent falls within the exception in Section 5(b)(i) of the Act and clause 15 of the policy, and the Appellant is not statutorily or contractually bound to satisfy the decree entered against its insured in the primary suit. **Disposition** 1. The upshot of the above is that; 1. The appeal is allowed; 2. The judgment and decree of the Chief Magistrate's Court at Meru in Meru CMCC No. E334 of 2022 delivered on 11th September 2024 are set aside; 3. Costs are awarded to the appellant. It is so ordered. Right of appeal 28 days. Dated, Signed and delivered vide TEAMS platform at Nairobi on this 31st day of July, 2026. **……………………………** **Hon. R. A. Oganyo, Mrs.** **Judge.** **In the presence of; -** Court Assistant…. Sana Erastus.