https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10049

Kenya Orient Insurance Company Ltd v Aluoch & another (Suing as administrators of the Estate of Charles Okello Ndeda) (Civil Appeal E040 of 2025) [2026] KEHC 10049 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10049 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E040 of 2025 DK Kemei, J July 10, 2026 Between Kenya Orient Insurance Company Limited Appellant and Beatrice Awuor Aluoch And Saulo Aweno Ndeda (Suing As Administrators Of The Estate Of Charles Okello Ndeda) Respondent (Being an appeal from the judgement and resultant decree of the Magistrate’s Court at Siaya (Hon Mkala Jacob Punga (RM)) dated 21st May 2025 in Siaya PMCC No. E041 of 2024) Judgment 1.This is an appeal arising from the judgment and decree of the Resident Magistrate’s Court at Siaya (Hon. Mkala Jacob Punga, RM) delivered on 21st May 2025 in Siaya PMCC No. E041 of 2024 wherein judgement was entered in favour of the Respondent in which the Appellant was ordered to satisfy the decree in the primary suit vide Siaya PMCC No. 52 of 2020 in the sum of Kshs 2, 911, 781/= plus cots of the suit and interest. 2.Aggrieved by the decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 18th June 2025 wherein they raised the following grounds of appeal namely; -a.The learned trial Magistrate erred in law and in fact in failing to find that the Respondents had no capacity in law to institute or maintain the suit and that the suit was therefore incompetent and unmaintainable.b.The learned trial Magistrate erred in law and in fact in holding that the Respondents served the Appellant with Statutory Notice while no evidence at all was placed before him.c.The learned trial Magistrate erred in law and in fact in holding that the Appellant had insured the judgement debtors in the first suit while no evidence at all was placed before him.d.The learned trial Magistrate erred in law and in fact in relying on an unproduced document, MFI-P7, the Police Abstract, to hold that it is proved facts stated therein including insurance details of the accident motor vehicle.e.The learned trial Magistrate erred in law and in fact in holding that the Plaintiff’s records showed that the Appellant was served with the requisite Statutory Notice without specifying what records or evidence showed such service. 3.This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See Selle vs Associated Motor boat Co. Ltd [1968] EA 123. 4.The lower court suit was brought by way of a plaint dated 7th February 2024, wherein the Respondents sought declaratory orders compelling the Appellant (Kenya Orient Insurance Company Limited) to satisfy a decree resulting from a primary judgment in Siaya PMCC No. 52 of 2020. 5.The primary suit arose from a fatal road traffic accident that occurred on 17th March 2020 along the Luanda-Siaya Road, which resulted in the death of Charles Okello Ndeda. The Respondents filed the primary suit against Bernard Omondi, Charles Ochieng Nyasore and Car House Limited, obtaining judgment on 29th September 2022 for a decretal sum of Kshs. 2,911,781/= inclusive of damages, assessed costs and accrued interest. 6.The Respondents subsequently moved the trial court in the declaratory suit on the ground that the accident vehicle, Registration No. KCW 425T, was insured by the Appellant under Policy No. A/0760/257564/220/COMP. 7.The Appellant filed its Statement of Defence dated 8th August 2024, vehemently denying any contractual or insurance relationship with the judgment debtors, contesting the formal service of a statutory notice and challenging the legal capacity of the Respondents to maintain the action. 8.To discharge their legal burden under Sections 107 and 109 of the Evidence Act, the Respondents produced the following oral and documentary evidence. PW-1 adopted her witness statement and testified as the administrator of the estate of the deceased, Charles Okello Ndeda. During cross-examination, she stated that she had "done succession" and filed for an Ad Litem grant. However, no physical limited or full Letters of Administration were formally introduced into the trial court record as exhibits. 9.PW-1 maintained that statutory notices were fully dispatched to the insurance company. Under cross-examination, she admitted that the physical copy of the notice (Exhibit 5) did not bear a receiving stamp from the Appellant, but she relied on secondary proof of postage. 10.The Respondents produced an affidavit of service sworn by the Plaintiffs’ advocate dated November 17, 2024 alongside a statutory demand notice dated January 24, 2024. This notice was backed by a Certificate of Postage to demonstrate that it was dispatched via registered mail to the insurer's correct address. 11.The Respondents relied on a police abstract originating from the traffic department. This document explicitly tied the accident vehicle (KCW 425T) to an active insurance policy issued by Kenya Orient Insurance Company Limited noting the details of the vehicle owner and the underlying risk cover. 12.The Respondents produced the formal Certificate of Costs, copy of the Plaint and the signed, stamped Summons to Enter Appearance from the primary formal proof suit (Siaya PMCC No. 52 of 2020) demonstrating that 100% liability had been entered against the insured tortfeasors. 13.The Defendant sought to completely absolve itself of statutory liability under Section 10(2) of the Insurance Act by arguing that they were strangers to the accident, the vehicle, and the primary legal proceedings. 14.DW-1 testified on behalf of Kenya Orient Insurance Company Limited to rebut the claims of service and coverage. Upon being confronted with the Plaintiffs' exhibits during cross-examination, DW-1 inspected the police abstract and admitted that Kenya Orient Insurance Co. Ltd was indeed listed as the insurer of the offending vehicle on the face of the abstract. DW-1 further conceded that the Appellant had never legally challenged, investigated or impugned the authenticity of that police abstract to prove it was fraudulent or mistaken. 15.DW-1 further conceded that the Appellant had never legally challenged, investigated or impugned the authenticity of that police abstract to prove it was fraudulent or mistaken. DW-1 confirmed to the court that the postal address utilized by the Plaintiffs on the certificate of postage was the exact, correct legal address of Kenya Orient Insurance Company Ltd. However, she maintained that the company's internal registry had no record of receiving the actual statutory notice within the required timeframe. 16.The learned trial magistrate considered the matter and found no merit in the Appellant’s assertions and thus entered judgement in favour of the Respondents thus precipitating into the present appeal. 17.The Appeal was canvassed by way of written submissions. Both parties filed their respective submissions. 18.The Appellant in their submissions is seeking to overturn the judgment and decree rendered by the trial court in favor of the Respondents. The submissions rely on three primary grounds; lack of legal capacity (locus standi) by the Respondents; failure to prove service of the mandatory statutory notice under the Insurance Act and failure to prove that the Appellant was the insurer of the accident motor vehicle due to the non-production of vital documents. 19.The Appellant argues that the trial court failed to address a fundamental question of jurisdiction. In the plaint, the Respondents claimed to sue as the administrators of the estate of the deceased, Charles Okello Ndeda. However, the Appellant expressly denied this capacity in its statement of defence. The Appellant submits that once capacity is denied, the burden shifts entirely to the plaintiffs to prove it. 20.During the trial, the 1st Respondent testified that she had "done succession" and filed for an Ad Litem grant but no actual Letters of Administration or limited grant were ever produced as evidence in court. 21.The case of the Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR and Gilbert Otieno Okite v Kenya Sugar Research Foundation [2020]KECA 900(KLR) was cited to establish that jurisdiction is everything. When a hurdle regarding the court's jurisdiction or the capacity of parties is raised, the court must down its tools and determine it immediately.Also the case of Nicholas Angwenyi Siro t/a Riverside Continental Resort v Finlay Kirui & another [2019] eKLR, and Housing Finance Company of Kenya Ltd v Embakasi Youth Development Project [2004]eKLR NAIROBI HCCC NO.1068 0F 2021 was cited to prove that only a recognized juristic person has locus standi. That if proper parties are not before the court, the suit is a nullity in limine.Also the cases of CKM v JMM [2024]KECA 293, Kihanya & 4 Others v Gichuri & Another [2024]KECA 852 (KLR), and Rugiri v Kinuthia [2024]KECA 1601 (KLR) were cited from recent Court of Appeal jurisprudence confirming that any suit filed on behalf of a deceased's estate without obtaining a full or limited grant of letters of administration is incompetent from inception and constitutes a legal nullity (nullity ab initio). 22.The Appellant highlights Section 10(2) of the Insurance (Motor Vehicle Third Party Risks) Act (Cap 405) which mandates that an insurer cannot be held liable to satisfy a third-party decree unless they were served with a statutory notice of the institution of the primary suit before or within 14 days of its commencement. 23.The Appellant points out that while the Respondents generated a statutory notice (Exhibit 5), the 1st Respondent openly admitted during cross-examination that the document bore no receiving stamp from the insurance company and that she lacked any evidence of delivery. Conversely, the Appellant’s witness (DW-1) testified consistently that the letter was never received. 24.The Appellant faults the trial magistrate's finding that service was effected via registered post. The Appellant notes that no postal dispatch receipts or certificates of postage were ever produced to substantiate this finding. 25.The case of Stephen Mwangi Mutuku v Invesco Assurance Co Ltd [2019]eKLR MOMBASA HCCA NO.136 OF 2016 was cited to reinforce that the 14-day notice requirement is a substantive statutory mandate not a mere procedural technicality. That failure to serve it completely absolves the insurer of liability. 26.The Appellant contends that the trial magistrate erroneously shifted the burden of proof to the defense requiring the Appellant to prove that it did not insure the vehicle rather than making the Respondents prove that it did. 27.The crucial element of the Appellant's argument on this ground focuses on the police abstract. The trial magistrate relied heavily on police abstract to establish that the Appellant was the insurer. However, the Appellant notes that this document was never formally produced as an exhibit in the declaratory suit; it was merely a part of the record in the separate, primary lower court case (Siaya PMCC No. 52 of 2020) to which the Appellant was not a party. 28.The case of Jiji v Gateway Insurance Co. Ltd [2022]KECA 368 (KLR) was cited to show that if an insurance company denies issuing a cover, the claimant bears a heavy burden to prove its authenticity, often by utilizing Section 12(1) of Cap 405 to demand insurance details from the vehicle owner. The Respondents failed to do this. 29.Also, the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 Others [2015] eKLR, Orina v UAP Insurance [2023] KEHC 26596, Martin Onyango v Invesco Assurance Company Limited [2015]KEHC 6060(KLR), and Ndombi v Kenya Orient Insurance Company Ltd [2023] KEHC 604(KLR were cited. These authorities collectively affirm that a document not formally proved and admitted as an exhibit has zero probative value. Even if a document is marked for identification (MFI) or existed in a previous separate file it cannot be treated as evidence in the current suit. Because the police abstract and insurance certificate were missing from the evidence, the nexus between the judgment debtor and the insurer was legally broken. 30.The Appellant concludes that the trial court committed grave errors of law and fact by ignoring the fatal jurisdictional flaw regarding locus standi manufacturing a finding of service where no postal receipts existed, and relying on unproduced documents to establish an insurance cover. 31.Consequently, the Appellant requests the High Court to allow the appeal with costs, set aside the lower court's judgment and dismiss the Respondents' suit in its entirety. 32.The Respondents in their submissions urge the High Court to dismiss the Appellant’s appeal in its entirety and uphold the judgment delivered by Resident Magistrate Hon. J.P. Mkala in Siaya CMCC No. E41 of 2024. The submissions focus on defending the lower court’s findings regarding the Appellant’s liability to satisfy the decree under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act confirming proper service of all statutory notices and proving the underlying insurance. 33.The Respondents acknowledge that as a first appellate court, the High Court is mandated to re-evaluate the subordinate court's evidence on both points of law and facts to reach its own independent conclusion. 34.Relying on David Kahuruka Gitau & George Kuria v Nancy Ann Wathithi Gitau & Mercy Wangui Ng'ang'A HCCA NO. 43 OF 2013 and Selle v Associated Motor Boat Co. [1968]EA 123, the Respondents remind the court that it must exercise caution since it did not observe the witnesses firsthand. 35.Citing Kiruga v Kiruga & Another [1988] KLR 348, the Respondents argue that the appellate court should not substitute its own factual findings for those of the trial court unless the trial judge was plainly wrong or had absolutely no evidence to support the finding. 36.The Respondents rely on Sections 107 and 109 of the Evidence Act (Cap 80) alongside Paul Ng'ang'a & Others v The Attorney General & Others Petition No.518 of 2012 to establish that while the initial burden rests on the plaintiff to prove its assertions, that burden was fully discharged during the trial. 37.The Respondents draw on the precedent of Machakos HCCA NO.64 OF 2017Susan Kanini Mwangangi & Another v Patrick Mbithi Kavita [2019] to emphasize that a defendant cannot merely deny claims, shift blame or rely purely on legal submissions. Once the plaintiff introduces prima facie evidence, the defendant assumes a positive duty to prove the defensive allegations they assert. 38.Citing Muthuku v Kenya Cargo Services (1991)eKLR, the Respondents affirm that liability in this matter properly followed fault based on the concrete evidence presented before the magistrate. 39.The Respondents vigorously contest the Appellant’s allegation of non-service. They submit that before filing both the primary and declaratory suits, all mandatory notices and pleadings were duly served upon the Appellant and its insureds. 40.The Respondents emphasize that they formally filed an affidavit of service dated November 17 2024 to confirm delivery. Furthermore, a demand notice dated January 24 2024 was sent via registered post with the corresponding certificate of postage annexed and placed directly on the court record. 41.The Respondents note that during cross-examination, the Appellant’s own witness, Sylvia Makassy (DW-1) openly conceded that the postal address utilized belonged directly to Kenya Orient Insurance Company Ltd. They argue that the Appellant had multiple opportunities to challenge service or cross-examine the process server but chose not to act. 42.The Respondents argue that the nexus between the accident vehicle (KCW 425T Nissan Tiida Saloon) and the Appellant was legally secured. In the primary suit (Siaya PMCC No. 52 of 2020), a police abstract was produced detailing the specific insurance policy and vehicle ownership. 43.The Respondents point out that during the hearing on January 22 2025 DW-1 admitted upon reviewing the abstract that Kenya Orient Insurance Co. Ltd was explicitly named as the insurer. Crucially, the Appellant’s witness confirmed that the insurance company had never legally challenged the genuineness or authenticity of that police abstract. 44.The Respondents underscore that the primary suit (Siaya PMCC No. 52 of 2020) proceeded to formal proof against the tortfeasors (Bernard Omondi, Charles Ochieng Nyasore, and Car House Limited), resulting in a final judgment on September 29, 2022. Liability was assessed at 100%, and the total decretal sum was itemized as follows:Pain and expectation of life: Kshs. 20,000/=Loss of expectation of life: Kshs. 100,000/=Loss of dependency: Kshs. 2,160,000/=Special damages: Kshs. 66,760/=Party costs: Kshs. 131,352/=Accrued interest: Kshs. 433,669/=Total Decretal Sum: Kshs. 2,911,781/= 45.The Respondents submit that the Appellant was fully notified of the entry of judgment and the subsequent decree but failed to move to set aside the primary judgment. Having slept on its legal rights, the Appellant cannot block the Respondents from enjoying the fruits of their judgment. 46.The Respondents submit that they fully satisfied the civil standard of proof on a balance of probabilities establishing both the statutory notice delivery and the insurance nexus through unchallenged exhibits and the Appellant's own witness admissions. 47.Consequently, the Respondents pray that the High Court upholds the trial court’s judgment delivered on September 21 2025 dismisses the appeal and orders the Appellant to satisfy the decree in Siaya PMCC No. 52 of 2020. 48.Having carefully considered the Memorandum of Appeal, the lower court record and the rival written submissions, I find that the singular, overarching issue for determination is whether this appeal has merit. 49.The Appellant has vehemently contended that the Respondents lacked the capacity to maintain the suit on behalf of the estate of the deceased, Charles Okello Ndeda citing a litany of jurisprudence including CKM v JMM &Another [2024] KECA 293 (KLR) to argue that a suit filed without a grant of letters of administration is a nullity ab initio. 50.While the general legal position on locus standi in estate matters is acknowledged, this Court must be guided by the unique evidentiary matrix of the case and the governing principles of appellate review. In David Kahuruka Gitau & George Kuria v Nancy Ann Wathithi Gitau & Mercy Wangui Ng'ang'A HCCA NO. 43 OF 2013 and Selle v Associated Motor Boat Co. [1968]EA 123, the principle was firmly established that while a first appellate court is mandated to re-evaluate the subordinate court's evidence on both points of law and facts to reach its own independent conclusion, it must exercise caution since it did not observe the witnesses firsthand. Furthermore, as held in Kiruga v Kiruga & Another [1988] KLR 348, an appellate court should not substitute its own factual findings for those of the trial court unless the trial judge was plainly wrong or had absolutely no evidence to support the finding. 51.A critical examination of the trial record shows that during cross-examination, the 1st Respondent (PW1) explicitly testified that she had "done succession" and filed for an Ad Litem grant. The learned trial judge noted and this Court confirms upon re-evaluation, that a Grant Ad Litem was indeed produced in the lower court proceedings. A Limited Grant Ad Litem is a valid juristic instrument issued under the Law of Succession Act (Cap 160) specifically tailored to clothe an administrator with the requisite locus standi to institute or defend legal proceedings on behalf of a deceased person's estate. The trial magistrate had tangible evidence of capacity before him. Consequently, applying the threshold in Kiruga v Kiruga & Another [1988] KLR 348, the trial magistrate cannot be said to have been plainly wrong. I hold that the Respondents possessed the necessary legal capacity and the Appellant's arguments on this ground must fail. 52.The Appellant argued that the trial court erroneously shifted the burden of proof and relied on an unproduced document the Police Abstract marked as MFI-P7 to establish the insurance nexus. 53.The Respondents rightly rely on Sections 107 and 109 of the Evidence Act (Cap 80) alongside Paul Ng'ang'a & Others v The Attorney General & Others Petition No.518 of 2012 to establish the mechanics of the burden of proof: while the initial burden rests on a plaintiff to prove its assertions, that burden shifts once a prima facie case is made. To further contextualize how this burden operates between adversarial parties, the Respondents drew on the precedent of Susan Kanini Mwangangi & Another v Patrick Mbithi Kavita [2019] KEHC 9906(KLR), which emphasizes that a defendant cannot merely deny claims, shift blame or rely purely on legal submissions. Once the plaintiff introduces prima facie evidence, the defendant assumes a positive duty to prove the defensive allegations they assert. 54.Applying these provisions and precedents to the record, the Respondents produced the primary judgment and formal records from Siaya PMCC No. 52 of 2020 wherein police abstract explicitly detailed the underlying insurance policy and vehicle ownership tying the risk to the Appellant. During the hearing on January 22, 2025 the Appellant’s own witness, Sylvia Makassy (DW1) was confronted with this abstract during cross-examination and openly conceded that Kenya Orient Insurance Co. Ltd was explicitly named as the insurer. Crucially, DW1 confirmed that the insurance company had never legally challenged the genuineness or authenticity of that police abstract. 55.Per Susan Kanini Mwangangi, the Appellant could not sit back on a bare denial in its pleadings while its own witness admitted the fact of coverage on the face of an official document under cross-examination. By failing to discharge its positive duty to prove its defensive claim that the policy was a total stranger to its records, the prima facie case established by the Respondents stood uncontroverted. As affirmed in Muthuku v Kenya Cargo Services (1991) 2 KAR 258 liability in this matter properly followed fault based on the concrete evidence presented before the magistrate. This ground of appeal similarly fails. 56.Section 10(2)(a) of the Insurance (Motor Vehicles Third Party Risks) Act (Cap 405) mandates that an insurer cannot be held liable to satisfy a third-party decree unless they were served with a statutory notice of the institution of the primary suit before or within 14 days of its commencement. 57.The Respondents vigorously contest the Appellant’s allegation of non-service submitting that all mandatory notices were duly served. The record reveals that the Respondents formally filed an Affidavit of Service dated November 17, 2024 to confirm delivery. Furthermore, a Statutory Demand Notice dated January 24 2024, was sent via registered post with the corresponding Certificate of Postage annexed and placed directly on the court record. 58.During cross-examination, the Appellant’s witness (DW1) openly conceded that the postal address utilized on the Certificate of Postage belonged directly and correctly to Kenya Orient Insurance Company Ltd. The Respondents rightly argue that the Appellant had multiple opportunities to challenge service or cross-examine the process server but chose not to act. Once a statutory notice is dispatched to the correct legal address via a verified Certificate of Postage, a robust presumption of service arises under the law. The Appellant's mere internal registry assertion that it had "no record" of receiving the notice is insufficient to displace the structural proof of registered postage. I am satisfied that the mandatory provisions of Section 10(2) of Cap 405 were fully complied with. 59.Flowing from the foregoing analysis, it is clear that the Respondents successfully discharged their civil standard of proof on a balance of probabilities establishing both the statutory notice delivery and the insurance nexus through unchallenged exhibits and the Appellant's own witness admissions. 60.The primary suit (Siaya PMCC No. 52 of 2020) proceeded to formal proof against the tortfeasor, resulting in a final judgment on September 29, 2022 where liability was assessed at 100% for a total decretal sum of Kshs. 2,911,781/=. The Appellant was fully notified of the entry of judgment and the subsequent decree, but failed to move to set aside the primary suit judgment. Having slept on its legal rights, the Appellant cannot block the Respondents from enjoying the fruits of their judgment. It is instructive and as noted in the preceding paragraphs that the Respondents duly obtained a Grant Ad Litem thereby giving them the locus standi to institute the suit against the Appellant’s insured. As to whether the Respondents had commenced succession and obtained the requisite grant, should not be a concern of the Appellant. It matters not that the Respondents upon being cross-examined that they had not commenced succession since the Grant Ad Litem was sufficient for the purposes of instituting suit against the tortfeasor. I find that the learned trial magistrate arrived at the correct factual and legal determination thereby warranting an order compelling the Appellant to satisfy the decree emanating from the primary suit. 61.Consequently, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed with costs. DATED AND DELIVERED AT SIAYA, THIS 10TH DAY OF JULY 2026D.KEMEIJUDGEIn the presence of:M/s Barasa……………………………for the AppellantN/A Odero Okoyo………………………for the RespondentMaurine……………………………Court Assistant