https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10075

Kenya Orient Insurance Company Ltd v Mlatso (Civil Appeal E252 of 2023) [2026] KEHC 10075 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10075 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E252 of 2023 J Ngaah, J July 10, 2026 Between Kenya Orient Insurance Company Limited Appellant and Abdu Mlatso Respondent (Being an appeal from the judgment of Hon. J. B. Kalo, Chief Magistrate, delivered on 14th September 2023 in the Chief Magistrate's Court at Mombasa, Civil Case No. 2068 of 2021) Judgment Introduction 1.This is a first appeal from the judgment of the Chief Magistrate's Court at Mombasa (Hon. J. B. Kalo) delivered on 14th September 2023 in Civil Case No. 2068 of 2021, in which judgment was entered in favour of the Respondent, Abdu Mlatso, against the Appellant, Kenya Orient Insurance Company Limited, for the sum of Kshs 828,175/=, together with interest and costs. The suit before the trial court was a declaratory action brought under the Insurance (Motor Vehicle Third Party Risks) Act, Chapter 405 of the Laws of Kenya ("the Act" or "Cap 405"), by which the Respondent sought to enforce, against the insurer, a judgment he had earlier obtained against the insured owner and driver of a motor vehicle involved in a road traffic accident. 2.Aggrieved by that decision, the Appellant filed a Memorandum of Appeal dated and lodged on 14th and 15th September 2023 respectively, setting out five grounds of appeal and praying that the judgment of the trial court be set aside and substituted with an order dismissing the suit, with costs. This judgment addresses that appeal. Proceedings before the trial court (a) Respondent's Case 3.By a Plaint (Fast Track) dated and filed on 21st December 2021, the Respondent, then Plaintiff, pleaded that on 27th March 2017, at about 6.30 a.m., he was lawfully riding a motorcycle to work, carrying his minor son who he was taking to school, when at Ng'ombeni, Kwa-Nyama area along the Ukunda–Likoni road, an oncoming lorry, motor vehicle registration number KBM 574V Nissan Lorry/Truck ("the insured vehicle"), which was overtaking a tuktuk at high speed, veered onto his lane and struck him and his son, causing them serious bodily injuries. 4.It was pleaded that the Appellant had insured the insured vehicle under Policy No. MSA/0807/015496/2016TPO and that the liability arising from the accident was one covered by that policy within the meaning of section 5(b) of Cap 405. The Respondent pleaded that on 7th November 2017 he had filed Mombasa CMCC No. 1839 of 2017 against the owner and driver of the insured vehicle, in which judgment was entered in his favour on 27th August 2021 for Kshs 702,650/=, and that a decree for Kshs 828,175/= had since been drawn, which sum continued to attract interest. 5.The Respondent further pleaded that the statutory notice required under section 10 of Cap 405 had been issued and served upon the Appellant on 29th November 2017, and that a demand for settlement of the decretal sum had thereafter been ignored by the Appellant. On this basis, the Respondent sought a declaration that the Appellant pays him Kshs 828,175/= under section 10 of Cap 405, or alternatively judgment for that sum, together with interest from 27th August 2021 and costs of the suit. (b) The Appellant's Case 6.The Appellant, then Defendant, entered appearance and filed its Defence on 17th January 2022 (filed 19th January 2022), in which it traversed the Plaint and denied, in particular, that it had issued an insurance cover to the insured vehicle under Cap 405. Without prejudice to that denial, the Appellant pleaded, in the alternative, that if any insurance sticker or certificate indicating that it had insured the vehicle existed, the appellant pleaded non est factum and was, in the Appellant's belief, a forgery, particulars of which were set out in the Defence. 7.The Appellant also pleaded that the Plaint disclosed no reasonable cause of action; that it had not been served with the statutory notice required under Cap 405; and that in any event, its policy, No. MSA/0807/015496/2016, was a Commercial General Cartage cover which insured the vehicle only in respect of goods carried on board, and did not extend to third-party bodily injury of the kind claimed by the Respondent. On this basis the Appellant prayed that the suit be dismissed with costs. The evidence tendered at the trial (a) Respondent's Evidence 8.PW1, Thomas Mokaya, Senior Court Administrator/Executive Officer at the Mombasa Law Courts, testified that the primary suits, CMCC Nos. 1839 and 1840 of 2017, had been consolidated and heard, and that judgment was delivered by Hon. Kyambia on 27th August 2021, in which the 1st and 2nd defendants in that suit — the driver and the owner of the insured vehicle at the material time — were held liable for the accident. He produced the certified court file in the primary suits as P Exhibit 1. 9.PW2, the Respondent, Abdu Omar Mlatso, adopted his witness statement as his evidence in chief and produced the Decree from the primary suit as P Exhibit 2, and the documents in his Supplementary List of Documents — the corrected police abstract and statutory notice — as P Exhibits 3 and 4. He testified that he had been injured in the accident, that judgment had been entered in his favour in the primary suit, that the decretal sum remained unsatisfied, and that the present suit was brought to enforce it against the insurer. 10.In cross-examination, PW2 conceded that the notice of intention to sue and police abstract originally filed in his List of Documents had, in error, been addressed to and named Monarch Insurance Company as insurer of the vehicle, under a policy covering the period 18th May 2016 to 17th May 2017. He explained, however, that upon filing his Supplementary List of Documents on 22nd June 2022, he had produced a second police abstract confirming that the Appellant was the insurer of the vehicle for the period covering the date of the accident, and that this was corroborated by the Appellant's own Policy Schedule. He accepted that he had sued the driver, James Muli, and the owner, John Mwenda, in the primary suit, and not Mwegaki Transporters Limited, and further accepted that the vehicle was insured to ferry goods.PW2 confirmed in re-examination that judgment in the primary suit had been entered against James Muli, the driver, and John Mwenda, the owner of the vehicle at the material time. (b) Appellant's Evidence 11.DW1, Sylvester Kivuva, the Appellant's Mombasa Branch Manager, adopted his witness statement as his evidence in chief and produced the Appellant's Motor Commercial General Cartage Policy Schedule as D Exhibit 1. His evidence was that the vehicle was insured by the Appellant for commercial general cartage; that the Appellant denied ever issuing an insurance cover to the vehicle under Cap 405 in the terms alleged by the Respondent; and that any document or information suggesting otherwise was a forgery. He maintained that the Appellant's cover extended only to goods carried on board the vehicle. 12.Under cross-examination, DW1 conceded that the assertion that the cover was strictly commercial and limited to goods carried had not been pleaded in the Defence, nor set out in his own witness statement. He was unable to state whether the Appellant had ever made a report to the police concerning the alleged forgery, and could not confirm whether the judgment entered in the primary suit had been the subject of any appeal. Submissions before the trial court (a)The Respondent's Submissions 13.In written submissions dated 29th May 2023, the Respondent framed the issue for determination as whether he was entitled to compensation from the Appellant under section 10 of Cap 405. He relied on the following statement of the applicable principles by the High Court in Kenya Orient Insurance Co. Ltd v Paul Mathenge Gichuki & Another [2017] eKLR:“... a plaintiff seeking to enforce a decree against an insurer only needs to prove that there was an accident during the currency of insurance cover in respect of the offending motor vehicle; that there was a suit against the insured which suit resulted into a decree and the decree remains to be settled. The plaintiff has the additional duty to prove that prior to filing the primary suit or within 14 days after the commencement of the suit, he did serve a notice thereon upon the insurer. On the other side the insurer against whom a declaratory suit is brought has the right to avoid settling the decree if it shows that: ... the policy of insurance issued did not cover the class of persons the plaintiff alleges; ... the judgment has been stayed pending an appeal; ... the policy had prior to the accident been cancelled ...; [or] the insurer had prior to the commencement of the primary suit or within three months after the commencement, ... commenced a suit and obtained a declaration that it is not bound to meet the decree." 14.The Respondent submitted that the judgment in the primary suit itself recorded that the third defendant there had sold the insured vehicle to the second defendant before the accident, and that the second defendant had, on his own account, insured it with the Appellant. It was submitted that the statutory notice bore the Appellant's own stamp of receipt and was unrebutted; that the allegation of forgery had never been proved or reported to the police; and that the Appellant's own Policy Schedule, produced as its own exhibit, confirmed that the vehicle was on cover for the period within which the accident occurred. It was further submitted that the Policy Schedule provided for liability to third parties for bodily injury independently of the goods-carriage aspect of the cover, and that the Appellant's contention that the policy covered goods only was an afterthought unsupported by the evidence. The Respondent prayed that judgment be entered as sought, with costs. (b)Appellant's Submissions 15.In written submissions dated 15th June 2023, the Appellant identified what it termed a four-fold test for liability to arise under section 10 of Cap 405: that the vehicle was insured by the Appellant; that the Respondent held a judgment against the insured; that statutory notice had been given within the prescribed period; and that the Respondent was a person covered by the policy, citing Roseline Violet Akinyi v Celestine Opiyo Wangwau [2020] eKLR and Stephen Kiarie Chege v Insurance Regulatory Authority & Another [2009] eKLR. 16.The bulk of the Appellant's submissions was directed at the fourth limb of that test. Relying on the Court of Appeal's decision in Corporate Insurance Company Ltd v Elias Okinyi Ofire [1999] eKLR, and on Co-operative Insurance Co. Ltd v Bridgestone Construction Co. Ltd [2011] eKLR, Maria Ciabaitaru M'mairanyi & 11 Others v Blue Shield Insurance Co. Ltd, Civil Appeal No. 101 of 2000, and Paul Mutisya v Jubilee Insurance Co. Ltd [2018] eKLR, the Appellant submitted that its policy was a commercial cover excluding liability for the carriage of passengers for hire or reward, contrary to section 4(2) of the Act, and that it was accordingly not liable for any injury sustained by a person carried in the vehicle for reward. 17.In the alternative, the Appellant submitted that the suit could not be sustained for want of timeous statutory notice, asserting that the Act required notice within fourteen days of the commencement of the primary suit, relying on Gateway Insurance Company Limited v Paul Kamau Waithaka [1993] eKLR on the strictness with which such notice requirements are to be construed. The Appellant prayed that the suit be dismissed in its entirety with costs. Trial court’s decision 18.In its judgment delivered on 14th September 2023, the trial court framed four issues for determination: (a) whether the Appellant was on cover for the vehicle at the time of the accident; (b) whether the Appellant had been served with a notice of intention to sue; (c) whether the Appellant was liable to satisfy the judgment in the primary suit; and (d) whether the reliefs sought could ensue. 19.On the first issue, the trial court noted that DW1 had himself admitted that the Appellant was on cover for the vehicle at the time of the accident, albeit under a cover he characterised as limited to cartage of goods, an allegation the court found had never been pleaded in the Defence. The court held that the defence of forgery and fraud had not been proved, that the apparent inconsistency between the two police abstracts on record had been reconciled by DW1's own admission of cover, and that the "category of cover" argument was an afterthought. It accordingly found that the Appellant was on cover for the vehicle at the time of the accident. On the second issue, the trial court rejected DW1's denial of service of the statutory notice, finding that the Appellant had been served with notice as required by the Act. 20.Having so found, the trial court held that the Appellant was legally liable to satisfy the judgment entered in the primary suit and that the Respondent had proved his case. The operative part of the judgment reads:“Having found as above the court finds and holds that the defendant is legally liable to satisfy the judgment in the primary suit. The court finds that the plaintiff has proved his case against the defendant. Consequently, the judgment is entered for the plaintiff against the defendant for the sum of Ksh 828,175. The same shall attract interest at court rates from the date of filing suit until payment in full. The plaintiff is also awarded costs of the suit to be borne by the defendant and which shall attract interest at court rates from the date hereof until payment in full." The Appeal Grounds of Appeal 21.Aggrieved, the Appellant lodged its Memorandum of Appeal dated 14th September 2023, setting out the following five grounds:1.That the learned trial magistrate misunderstood, failed to appreciate and misrepresented the defence put forward by the appellant hence arrived at a wrong finding as to the defence that had been put forth by the appellant, which led to wrong holdings of the law on pleadings, burden of proof and evidential burden.2.That the learned trial magistrate erred in law and in fact in holding that the plaintiff had proved its case under Sections 5 and 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Chapter 405, Laws of Kenya, on a balance of probability.3.That the learned trial magistrate erred in law and fact in holding that the plaintiff/respondent had proved his case on a balance of probability.4.That the learned trial magistrate erred in law and in fact in shifting the burden of proof and the evidential burden to the appellant without the respondent discharging its initial burden of proof and evidential burden.5.That the learned trial magistrate erred in law and in fact in failing to appreciate that he could only enter judgment [if it was] proved that the appellant had issued a policy under Chapter 405, Laws of Kenya, and in failing to read the DW1 evidence as a whole. 22.The Appellant prayed that the judgment of 14th September 2023 be set aside and substituted with an order dismissing the suit with costs, together with the costs of the appeal. Appellant's Submissions on Appeal 23.In written submissions dated 23rd January 2026, the Appellant urged that its five grounds be considered cumulatively. It set out the appellate jurisdiction of this Court as being akin to a retrial, in which the Court must re-evaluate the evidence and reach its own independent findings of fact, citing Mwanasokoni v Kenya Bus Services Ltd (1985) eKLR, which in turn approved the observations of the House of Lords in Sotiros Shipping v Sauviet Sohold, The Times, 16th March 1983, on the deference owed to a trial court's advantage in seeing and hearing witnesses, and of the former Court of Appeal for East Africa in Ephantus Mwangi & Another v Wambugu (1983/84) 2 KCA 100 at 118, to the effect that an appellate court will only interfere with a finding of fact where it is based on no evidence, on a misapprehension of the evidence, or where the trial court is shown demonstrably to have acted on wrong principles. 24.On the burden of proof, the Appellant relied on Mbuthia Macharia v Annah Mutua Ndwiga & Another (2017) eKLR, and the passage there cited from Halsbury's Laws of England, for the proposition that the legal burden of proof rests throughout on the party asserting a claim, that the evidential burden may shift in the course of trial depending on the evidence adduced, and that the Respondent was obliged to prove his case even in the face of a weak or non-existent defence, citing further Daniel Toitich Arap Moi v Mwangi Stephen Muriithi (2014) eKLR. 25.Central to the Appellant's submissions was the contention that the trial court had, at page 120 of the Record of Appeal, wrongly held that the "category of cover" defence — that the Appellant's policy was a commercial cover for goods only — had not been pleaded. The Appellant pointed to paragraphs 11 and 12 of its Defence, at pages 16 and 17 of the Record, which plead in terms that its motor vehicle was "a carriage of goods motor vehicle" insured under "a commercial cover covering only the goods on board," and submitted that the trial court had accordingly proceeded on a mistaken premise, and had failed to determine whether the cover in place was a cover falling within Cap 405 at all. 26.The Appellant further submitted that there was no evidence that the Respondent was a third party within the meaning of the Act, asserting that, on cross-examination in a "sister file" — Luqman Abdu Mlatso (Minor suing through father and next friend Abdu Omar Mlatso) v Kenya Orient Insurance Company Limited, Mombasa CMCC No. 2067 of 2021, said to apply also to CMCC No. 2068 of 2021 — the Respondent had testified to being on board motor vehicle KBM 574V with two other people and to having paid fare to its driver, and that the vehicle was not a Passenger Service Vehicle. On this footing, and relying on Corporate Insurance Company Ltd v Elias Okinyi Ofire [1999] eKLR, Co-operative Insurance Co. Ltd v Bridgestone Construction Co. Ltd [2011] eKLR, Maria Ciabaitaru M'mairanyi & 11 Others v Blue Shield Insurance Co. Ltd, Civil Appeal No. 101 of 2000, and Paul Mutisya v Jubilee Insurance Co. Ltd [2018] eKLR, the Appellant maintained that its policy, being limited to carriage of goods, did not extend to the Respondent, and that the vehicle had in any event been used, contrary to the policy, to carry a fare-paying passenger in violation of section 4(2) of the Act. It cited a four-fold test for liability under section 10, drawn from UAP Insurance Co. Ltd v Patrick Charo Chiro [2021] eKLR, and, on the question of notice, submitted, as it had at trial, an alternative fourteen-day period alongside the statutory thirty-day period. 27.The Appellant also invoked Jiji v Gateway Insurance Co. Ltd, Civil Appeal No. 126 of 2018, [2022] KECA 368 (KLR), for the proposition that a claimant ought not simply to present a photocopy of an insurance sticker or certificate and expect the insurer to disprove it, and that section 12 of the Act affords a mechanism by which a claimant may verify the existence and terms of a cover directly with the insurer. On this basis, it submitted that the Respondent had failed to bring himself within the Act and prove his case, and that the suit ought to have been dismissed. The Appellant prayed that the appeal be allowed, the trial court's judgment set aside, and the suit dismissed with costs, together with the costs of the appeal. Respondent's Submissions on Appeal 28.In written submissions dated 9th February 2026, the Respondent set out the background and reiterated his case as pleaded and proved at trial. He submitted that section 4 of the Act makes insurance against third-party risks mandatory for all motor vehicles used on a road, save for government and certain agricultural vehicles, and that the exceptions in section 5 — for employees injured in the course of employment, unauthorised passengers, contractual liabilities, and liability exceeding three million shillings — did not avail the Appellant, since the Respondent fell within none of them. Citing Indiatsi (Suing as the Legal Representative of the Estate of Micheal Simbili) v Invesco Assurance Company Limited [2023] KEHC 22913 (KLR), he submitted that he had proved the existence of an accident, a decree remaining unsatisfied, and timely service of statutory notice on the Appellant, which never responded to that notice notwithstanding its obligation to do so under section 12(1A) of the Act. 29.The Respondent submitted that the police abstract at page 34 of the Record identified the Appellant as insurer and John Mwenda as the policy holder, that the primary suit was filed on 7th November 2017, and that the statutory notice dated 29th November 2017 was received by the Appellant on the same date, within the thirty-day period prescribed by section 10(2)(a) of the Act. He pointed out, correctly, that the judgment in the primary suit recorded that the vehicle's previous owner had been insured by Monarch Insurance Company Limited, but that it had since been sold to John Mwenda, who insured it with the Appellant, and that it was during the currency of that latter cover that the accident occurred; the primary judgment discharging the previous owner had never been challenged. 30.On the "category of cover" defence, the Respondent aligned himself with the trial court's holding, but went further, submitting that the defence was in any event false and misleading, since commercial vehicles are not amongst the categories excepted from the duty to cover third parties under section 4 of the Act. Critically, the Respondent submitted that the Appellant's assertion that he was a passenger in the insured commercial vehicle was "incorrect and a misrepresentation of facts," and that the evidence and documents on record, corroborating one another, showed that he was a motorcyclist at the time of the accident, with nothing in the record supporting the suggestion that he had ever been carried in or upon the insured vehicle in any capacity. The Respondent prayed that the appeal be dismissed in its entirety, that the trial court's judgment be upheld, and that costs of the appeal be awarded to him. Duty of the first appellate court 31.This being a first appeal, this Court is enjoined, pursuant to section 78(1) of the Civil Procedure Act, to re-appraise the evidence on record and to draw its own conclusions of fact and law, bearing always in mind that, unlike the trial court, it neither saw nor heard the witnesses testify, and must make due allowance for that disadvantage. The principle is well settled in Selle v Associated Motor Boat Co. Ltd [1968] EA 123, and has since been consistently applied by the Court of Appeal, including in Kenya Ports Authority v Kuston (Kenya) Limited [2009] eKLR and Mwanasokoni v Kenya Bus Services Ltd [1985] eKLR, both cited to this Court. As the Court held in Mwanasokoni, adopting the House of Lords' observations in Sotiros Shipping v Sauviet Sohold, The Times, 16th March 1983, an appellate court, whilst possessed of the power to examine and re-evaluate the evidence, must remain mindful of the advantage enjoyed by a trial court that saw and heard the witnesses and was better placed to assess the significance of what was said, how it was said, and what was not said. It will accordingly only interfere with a finding of fact where that finding is based on no evidence, on a misapprehension of the evidence, or where the trial court is demonstrably shown to have acted on wrong principles: Ephantus Mwangi & Another v Wambugu (1983/84) 2 KCA 100 at 118. It is with these principles in mind, and mindful that the grounds of appeal are, on the Appellant's own submission, to be read cumulatively, that the Court now turns to determine the appeal. Analysis and determination 32.The Court begins with the narrow but important factual question raised squarely by the Appellant's submissions: whether the trial court was correct to hold, as it did, that the "category of cover" defence — that the Appellant's policy was limited to a commercial cover for goods carried, and did not extend to third-party bodily injury — had not been pleaded. Having examined paragraphs 11 and 12 of the Defence filed on 17th January 2022, this Court finds that the Appellant is correct on this narrow point: paragraph 11 pleads in terms that "the defendant's motor vehicle was a carriage of goods motor vehicle and the defendant had issued policy number MSA/0807/015496/2016 being a Commercial Cover covering only the goods on board," and paragraph 12 pleads that the vehicle "was covered by a different insurance company under Chapter 405 Laws of Kenya being a motor vehicle Commercial Cover that covered only goods carried." The trial court's finding that this defence was raised for the first time at trial and was "merely an afterthought" is, on this record, a misapprehension of the pleadings, and to that limited extent Ground 1 of the appeal is made out. 33.That error is not, however, one that avails the Appellant, for the defence so pleaded fails on its merits regardless of whether it was pleaded or raised as an afterthought. The Appellant's own Policy Schedule, produced by its own witness, DW1, as D Exhibit 1, discloses, under the heading "Limits of the amount of our liability," a distinct section, Section II-1(a), headed "Liability to third parties — Death or Bodily Injury," which provides cover of up to Kshs 3,000,000/= per person, both in respect of persons carried in or upon the vehicle and, separately and independently, "in respect of other persons." That is cover distinct from, and additional to, whatever cover the policy affords for goods carried. On the correct construction of the Appellant's own exhibit, therefore, a policy for "commercial cartage of goods" is not a policy that covers goods only; it also carries mandatory third-party bodily injury cover, precisely as section 5(b) of the Act requires. 34.This brings the Court to the Appellant's principal factual contention on appeal: that the Respondent was, in truth, a fare-paying passenger carried on board the insured vehicle, and not a third party within the meaning of the Act. That contention rests on an assertion that the Respondent so testified in cross-examination in a "sister file," CMCC No. 2067 of 2021. This Court has scrutinised the entirety of the record of the trial in CMCC No. 2068 of 2021, including the trial court's own recitation of the evidence of PW1, PW2 and DW1, and finds nothing in it to support that assertion. To the contrary, the Plaint, the Respondent's witness statement, and the trial court's judgment are all consistent in describing the Respondent as having been riding his own motorcycle, together with his minor son, when he was struck by the insured lorry; no version of the pleaded or testified facts, at any stage of these proceedings, places the Respondent on board motor vehicle KBM 574V. The Respondent's submissions on appeal squarely and correctly make this point. In the absence of any part of the record before this Court substantiating the Appellant's assertion, the Court is not prepared to treat it as established, and proceeds on the basis, consistent with the whole of the record, that the Respondent was a third-party road user struck by the insured vehicle, and not a passenger carried in or upon it. 35.On that footing, the line of authority relied upon by the Appellant — Corporate Insurance Company Ltd v Elias Okinyi Ofire; Co-operative Insurance Co. Ltd v Bridgestone Construction Co. Ltd; Maria Ciabaitaru M'mairanyi & 11 Others v Blue Shield Insurance Co. Ltd; and Paul Mutisya v Jubilee Insurance Co. Ltd — each concerned with an insurer's liability to fare-paying passengers carried in or upon an insured commercial vehicle in circumstances where the policy excluded carriage for hire or reward, has no application to the facts of this case. The Respondent's claim falls to be considered under limb (B) of Section II-1(a) of the Policy Schedule — "in respect of other persons" — and not limb (A), which concerns persons carried in or upon the vehicle; it falls, more fundamentally, within the general mandate of section 5(b) of the Act itself, which requires a policy to cover liability for death or bodily injury to any person arising out of the use of the vehicle on a road. The proviso in section 5(b)(ii) excluding liability to persons carried for hire or reward, upon which the Appellant's case was built both at trial and on appeal, is simply not engaged where, as here, the injured claimant was never a passenger in the insured vehicle at all. Grounds 2, 3 and 5 of the appeal, insofar as they rest on this contention, accordingly fail. 36.As to the allegation of forgery, the Appellant did not, at trial, discharge the burden resting upon it. DW1 could not confirm that any report had been made to the police concerning the alleged forgery, and no evidence beyond bare assertion was led in support of it. The point is reinforced by the very authority the Appellant now cites on appeal, Jiji v Gateway Insurance Co. Ltd, Civil Appeal No. 126 of 2018, [2022] KECA 368 (KLR), in which the Court of Appeal held that it would be a travesty of justice to require a claimant to do no more than produce a copy of an insurance document, and that an insurer who fails to avail itself of the verification mechanism in section 12(1) of the Act bears the burden of disproving the authenticity of such a document, a burden that, on the authority cited, never shifts to the claimant. There is no evidence that the Appellant ever invoked section 12(1) to verify the position with its own insured before pleading forgery; on the authority it now relies upon, the evidential burden of proving the forgery it alleged rested with, and remained with, the Appellant, and was not discharged. 37.On the question of notice, the primary suit was filed on 7th November 2017 and the statutory notice, dated 29th November 2017, was received and stamped by the Appellant on that same date — twenty-two days later, and comfortably within the thirty-day period prescribed by section 10(2)(a) of the Act. Both parties, in their respective submissions on appeal and at trial, have at various points suggested an alternative fourteen-day period; there is no such period applicable to the giving of notice under section 10(2)(a) as it currently stands, and in any event the notice here was timeous under either computation advanced. This ground does not assist the Appellant. 38.Turning to Grounds 1 and 4 more generally, and to the burden of proof, this Court accepts, as both parties' submissions on appeal correctly state, that the legal burden of proof rested throughout on the Respondent, and that it was for him to establish his case notwithstanding the Appellant's defence. On the evidence, the Respondent discharged that burden: he proved, through PW1 and PW2, an accident, a decree obtained against the insured that remains unsatisfied, and timely service of statutory notice, all corroborated by documentary evidence including the Appellant's own Policy Schedule. It was only once that prima facie case was made out that an evidential burden passed to the Appellant to establish a statutory ground of avoidance under section 10(2) to (4) of the Act, a burden it did not discharge for the reasons already given. This is not, as the Appellant contends, an impermissible reversal of the burden of proof; it is the ordinary and correct operation of section 10, as explained in UAP Insurance Co. Ltd v Patrick Charo Chiro and in Indiatsi v Invesco Assurance Company Limited, both cited in these proceedings. Save for the narrow correction already recorded above concerning the pleading of the category of cover, the trial court did not misapprehend the defence advanced, and grounds 1 and 4 otherwise fail. 39.For completeness, the Court notes two further, lesser inconsistencies in the record that do not affect its conclusion. First, the Appellant's written submissions before the trial court, at one point, referred to the witness who testified as DW1 as "Amin Said Amin, the Relationship Manager," whereas the record consistently identifies the Appellant's sole witness as Sylvester Kivuva, its Mombasa Branch Manager; this appears to be no more than a drafting slip. Second, the police abstract relied upon in the Respondent's own submissions describes the relevant period of cover as running from 6th August 2016 to 6th July 2017, while the Policy Schedule itself, produced as D Exhibit 1, records the period as 6th July 2016 to 5th July 2017; the discrepancy is immaterial, since the accident of 27th March 2017 falls comfortably within either period. 40.Having re-evaluated the entirety of the evidence and submissions on record, and having independently examined the pleadings, this Court reaches the following conclusions. The trial court did misapprehend the pleadings in one narrow respect, in holding that the Appellant's "category of cover" defence had not been pleaded, when in fact it had been pleaded at paragraphs 11 and 12 of the Defence; to that extent, Ground 1 of the appeal succeeds. That error is, however, immaterial to the outcome, because the defence so pleaded fails on the merits: the Appellant's own Policy Schedule provides mandatory third-party bodily injury cover to persons, such as the Respondent, who are not carried in or upon the insured vehicle, and the Appellant's contrary assertion that the Respondent was himself a fare-paying passenger on board the insured vehicle is unsupported by, and contrary to, the record before the trial court. The defence of forgery was not established, and on the Appellant's own cited authority the burden of establishing it never shifted from the Appellant. Statutory notice was timeously served. The Respondent accordingly proved his case against the Appellant on a balance of probabilities, and none of the five grounds of appeal, considered cumulatively as the Appellant urges, or individually, discloses a basis upon which this Court should disturb the trial court's judgment. Disposition 41.The Respondent has held an unsatisfied decree since 2021, and it bears repeating, as was submitted on his behalf, that a plaintiff who has established his entitlement under the Act cannot be left to hold a barren decree from a lawful judgment: Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (Suing as Administrator of the Estate of Pamela Agola Apopa) (Deceased) [2020] eKLR. For the foregoing reasons, and notwithstanding the narrow, immaterial misapprehension of the pleadings identified above, this Court makes the following orders:(a)The appeal, Civil Appeal No. E252 of 2023, is hereby dismissed.(b)The judgment of the Chief Magistrate's Court at Mombasa in Civil Case No. 2068 of 2021, delivered on 14th September 2023, is hereby upheld.(c)The costs of this appeal shall be borne by the Appellant. DATED, SIGNED AND DELIVERED ON 10 JULY 2026NGAAH JAIRUSJUDGE