Kenya Orient Insurance Company Ltd v Nganga (Civil Appeal E427 of 2024) [2026] KEHC 10036 (KLR) (10 July 2026) (Judgment)

Kenya Orient Insurance Company Ltd v Nganga (Civil Appeal E427 of 2024) [2026] KEHC 10036 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10036 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E427 of 2024 J Ngaah, J July 10, 2026 Between Kenya Orient Insurance Company Limited Appellant and Joel Kithome Nganga Respondent (Being an appeal from the judgment and decree of Hon. R. Ombata, Resident Magistrate, delivered on 9th December 2024 in the Chief Magistrate's Court at Mombasa, Civil Suit No. E1064 of 2022) Judgment Introduction 1.This is a first appeal from the judgment of Hon. R. Ombata, Resident Magistrate ("the trial magistrate"), delivered on 9th December 2024 in Mombasa Chief Magistrate's Court Civil Suit No. E1064 of 2022 ("the lower court" or "the trial court"). The Respondent, Joel Kithome Nganga, was the Plaintiff in the lower court, and the Appellant, Kenya Orient Insurance Company Limited, was the Defendant. For ease of reference, and save where the context otherwise requires, the parties are referred to in this judgment as they were styled in the lower court, namely the Plaintiff and the Defendant. 2.The suit before the trial court was a declaratory action brought by the Plaintiff under the Insurance (Motor Vehicle Third Party Risks) Act, Chapter 405 of the Laws of Kenya ("the Act" or "Cap 405"), seeking to compel the Defendant, as the alleged insurer of a Piaggio tuk-tuk registration number KTWB 214C, to satisfy a decree that the Plaintiff had earlier obtained against the registered owner of that vehicle and her driver in a separate suit. The trial magistrate found in the Plaintiff's favour, holding that the Defendant was the insurer of the offending vehicle and was obligated to satisfy the decree in the primary suit, subject to the statutory limit of liability of Kshs 3,000,000. Aggrieved, the Defendant has appealed to this court. Background to the suit 3.The dispute has its origin in a road traffic accident that occurred on 10th November 2017 at around 6.00 p.m. along the Airport–Obama Road near the Shell Petrol Station, Changamwe, Mombasa, in which the Plaintiff, then a pedestrian lawfully using the pedestrian lane, was knocked down by the said Piaggio tuk-tuk registration number KTWB 214C, sustaining injuries. 4.Following the accident, the Plaintiff instituted Mombasa Chief Magistrate's Court Civil Suit No. 2405 of 2018, Joel Kithome Nganga v Phylis Wangari & Ngundi Kithitu ("the primary suit"), against the registered owner of the tuk-tuk and its driver. The primary suit was defended, proceeded to full hearing, and judgment was entered in the Plaintiff's favour on 12th November 2020. A decree and certificate of costs were subsequently extracted, and the Plaintiff produced these as exhibits in the lower court, showing a decretal sum of Kshs 2,764,832 (comprising special damages of Kshs 2,263,000 and interest of Kshs 501,632 calculated over nineteen months) together with a separately certified sum of costs of Kshs 170,530. The Plaintiff's own pleadings in the present suit computed the total judgment debt, inclusive of costs, at Kshs 3,285,967. A notice of entry of judgment was issued to the judgment debtors' advocates on 13th/17th November 2020, but the decree has to date not been satisfied. 5.It is the Plaintiff's case that, at the material time, the tuk-tuk was covered by a third-party insurance policy, No. MSA/0708/001667/2017, issued by the Defendant and running from 11th March 2017 to 10th February 2018, a period which included the date of the accident. On that footing, the Plaintiff, having failed to recover the decretal sum from the judgment debtors, filed the suit that is the subject of this appeal, seeking a declaration compelling the Defendant, as the alleged insurer, to honour the judgment and decree obtained in the primary suit, pursuant to the statutory duty imposed on insurers by section 10 of the Act. Plaintiff's case in the lower court 6.By a Plaint dated 10th June 2022 and filed on 12th July 2022, the Plaintiff pleaded, in summary, that: the Defendant was at all material times the insurer, under Cap 405, of the tuk-tuk registration number KTWB 214C belonging to one Phylis Wangari ("the insured"); the insured had taken out third-party policy No. MSA/0708/001667/2017 with the Defendant covering the period 11th March 2017 to 10th February 2018; the accident of 10th November 2017 occurred within the currency of that policy; the primary suit proceeded to judgment on 12th November 2020 against the insured and her driver in the Plaintiff's favour; despite a notice of entry of judgment issued on 17th November 2020, the judgment debtors had failed to settle the decree; and that, under section 10 of the Act, the Defendant, as the insurer of the insured, was mandatorily obligated to honour the judgment and decree notwithstanding that it was not itself a party to the primary suit. 7.The Plaintiff further pleaded that demand and statutory notice of intention to sue had been given to the Defendant, that the Defendant had failed to comply, and that there was no other suit pending nor any prior proceedings between the parties touching on the same subject matter. The Plaint prayed for: (a) a declaration that the Defendant was mandatorily required to honour the judgment and decree in CMCC No. 2405 of 2018; (b) costs of the suit; and (c) interest on (a) and (b) at court rates. 8.The Plaint was accompanied by a Verifying Affidavit sworn by the Plaintiff, a List of Witnesses, and a List of Documents dated 10th June 2022, later supplemented by a Further List of Documents dated 19th June 2023 and a Second Further List of Documents dated 25th March 2024. The additional lists included, among other things, correspondence with the Association of Kenya Insurers ("AKI") seeking confirmation of the insurer to which the insurance certificate borne by the tuk-tuk had been allocated. Defendant's case in the lower court 9.The Defendant entered appearance and initially filed a Statement of Defence dated 11th August 2022. By a Notice of Motion dated 7th September 2023, brought under section 1A, 1B and 3A of the Civil Procedure Act and Order 8 of the Civil Procedure Rules, the Defendant sought and, by consent, obtained leave on 24th January 2024 to amend its defence. The Amended Defence, dated 25th January 2024 and filed on 26th January 2024, is the operative pleading and may be summarised as follows. 10.The Defendant denied issuing an insurance cover in respect of the tuk-tuk registration number KTWB 214C to Phylis Wangari, and put the Plaintiff to strict proof both of that fact and of the assertion that the Defendant was liable to pay under the Act. It pleaded that it was a stranger to the substantive averments in the Plaint concerning the accident, the primary suit, and the judgment obtained therein, while admitting the descriptive and jurisdictional paragraphs of the Plaint. 11.Without prejudice to the foregoing, the Defendant pleaded non est factum in respect of any insurance sticker or certificate said to relate to the tuk-tuk, and raised particulars of forgery and fraud, namely: the manufacture of an insurance sticker or certificate falsely indicating that it had been issued by the Defendant; an attempt to obtain compensation from the Defendant by false means; and the alteration of an insurance sticker to give the false impression that the vehicle was insured by the Defendant. 12.The Defendant further pleaded that the Plaint disclosed no cause of action under Cap 405; that it had not been served with statutory notice as required under the Act, and that even if it had, this would be of no effect since it had not insured the vehicle in question; that the interest claimed was exaggerated and contrary to section 26(2) of the Civil Procedure Act; and that, in any event, its liability, if any, was limited to Kshs 3,000,000 by dint of section 5 of Cap 405. The Defendant prayed that the suit be dismissed with costs. Evidence tendered in the lower court Plaintiff's evidence 13.The suit proceeded to hearing on 22nd May 2024, when the Plaintiff testified as PW1. He adopted his witness statement dated 10th June 2022 as his evidence-in-chief, and produced his List of Documents dated 10th June 2022 together with the two further lists of documents dated 19th June 2023 and 25th March 2024 as Plaintiff's Exhibits 1 to 12. These exhibits included, among others, the decree and certificate of costs in the primary suit (P.Exh.1), the judgment notice dated 13th November 2020 (P.Exh.2), demand letters (P.Exh.3), a police abstract (which was objected to by counsel for the Defendant and only marked for identification, MFI-4), the memorandum of appearance and defence filed in the primary suit (P.Exh.6 and P.Exh.7) evidencing that the primary suit had in fact been defended, and correspondence with the AKI, including a letter dated 6th February 2024 confirming that Insurance Certificate No. A7838862 had been allocated to the Defendant (variously referred to in the record as P.Exh.9 and P.Exh.12). 14.In his evidence, PW1 testified that judgment in the primary suit was entered in his favour on 12th November 2020, that the sum awarded remained unpaid, and that he had since incurred further costs of treatment. He maintained that the tuk-tuk was insured by the Defendant, relying on the AKI letter, and stated that details of the insurance had originally been obtained from the police officer who attended the scene of the accident. 15.Under cross-examination by counsel for the Defendant, PW1 conceded that he had not produced the actual insurance sticker or policy document as between the Defendant and Phylis Wangari in the present suit (though he maintained that it had been produced in the primary suit), that he had not written directly to Phylis Wangari to ascertain the identity of her insurer, and that although he had sent a demand letter dated 4th July 2018 and a statutory notice by registered post to the Defendant, he was unable to produce a certificate of posting or postal receipt in proof of service. He further conceded that the AKI letter did not, on its face, disclose the name of the insured, Phylis Wangari, or expressly confirm that the policy had been sold to her. 16.In re-examination, PW1 maintained that the information regarding the identity of the insurer had originally been obtained from the police at the scene, that the demand documents had been served on the Defendant through its advocate's messenger (a fact he attributed to information from his own advocate, Mr Makau), and that the Defendant had not filed any evidence to show that it had not insured the vehicle. The Plaintiff thereafter closed his case. Defendant's evidence 17.The defence hearing proceeded on 29th July 2024, when Amin Said Amin, the Defendant's Relationship Manager, testified as DW1. He adopted his witness statement dated 25th January 2024 (filed 30th January 2024) as his evidence-in-chief, in which he denied that the Defendant had issued an insurance cover to the tuk-tuk in question, alleged forgery and fraud in respect of the insurance sticker or certificate relied upon by the Plaintiff, denied that the Defendant had been served with statutory notice as required by the Act, and asserted that, in any event, the Defendant's liability was capped at Kshs 3,000,000 under section 5 of the Act. 18.Under cross-examination, DW1 conceded that he had worked for the Defendant since 2009 but had not produced any record pertaining to the policy number relied upon by the Plaintiff, that he was not privy to and not aware whether the primary suit had been defended, and that he had no documentary evidence to substantiate his assertion that the demand letter and statutory notice had not been sent to the Defendant's correct postal address. He further conceded that he had never seen the physical insurance certificate or sticker said to be a forgery, and that no evidence had been produced to prove the allegation of forgery. He accepted that the demand letter and statutory notice did not, on their face, bear any stamp evidencing receipt by the Defendant, but he was equally unable to point to any evidence rebutting service by registered post. He also conceded that he was seeing the AKI letter for the first time and could not say from its contents whether the certificate had been issued specifically to the insured or merely allocated in relation to the motor vehicle in question. The Defendant thereafter closed its case, and the trial court directed that the matter be disposed of by way of written submissions. Submissions before the trial court 19.In written submissions dated 6th August 2024, the Plaintiff contended, first, that there existed a clear and unchallenged determination by a court of competent jurisdiction — the primary suit — as to liability and quantum, which the Defendant could not reopen in a declaratory suit; and that, following the reasoning in Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (suing as Administrator of the Estate of Pamela Agola Apopa) (Deceased) [2020] eKLR, any challenge to the identity of the insured motor vehicle or driver ought properly to have been raised in the primary suit itself, and not collaterally in the declaratory action. 20.Secondly, the Plaintiff submitted that section 10 of the Act imposed a duty on the insurer to satisfy judgments against a person insured notwithstanding any entitlement to avoid or cancel the policy, and that, on the evidence, particularly the AKI letter confirming allocation of Insurance Certificate No. A7838862 to the Defendant (which letter the Defendant did not controvert), the Plaintiff had discharged the burden of proving, on a balance of probabilities, that the Defendant was the relevant insurer. Reliance was placed on Jubilee Insurance Co Ltd v Walter Tondo Soita [2021] eKLR, in which an appeal by an insurer in a similar declaratory suit was dismissed for want of evidence rebutting the claim that the insurer covered the offending vehicle. 21.Thirdly, on the allegations of fraud and forgery raised in the Amended Defence, the Plaintiff submitted that these had not been proved to the requisite standard — above a balance of probabilities though short of proof beyond reasonable doubt, per Peris Wanjiku Mukuru v Stephen Njoroge Macharia [eKLR] — since the Defendant had called no evidence beyond DW1's bare oral denial, relying further on Gerald Njuguna Mwaura v Africa Merchant Assurance Co. Limited [2020] eKLR and Esther Muthoni Munyiri v Amaco Insurance Company Limited [2021] eKLR, both of which held that an insurer resisting a declaratory suit bears an evidential burden, once a policy is shown to exist, to establish non-coverage or fraud by cogent evidence rather than mere denial. 22.In its written submissions dated 2nd August 2024 (filed 5th August 2024), the Defendant took the position that the Plaintiff had not discharged the legal burden of proof, citing the Supreme Court's restatement of the burden and evidential-burden distinction in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR. It submitted that a claim under sections 4 and 10 of the Act required proof of a four-fold test — namely, that the vehicle was insured by the Defendant, that the Plaintiff held judgment against the insured, that statutory notice was issued to the insurer within the time prescribed, and that the Plaintiff was a person covered by the policy — as set out in UAP Insurance Co. Ltd v Patrick Charo Chiro [2021] eKLR. 23.On the identity of the insured vehicle and insurer, the Defendant submitted that the AKI letter relied upon by the Plaintiff did not bear the registration number of the vehicle or the name of any person issued with a sticker, that the police abstract had only been marked for identification and never formally produced in evidence, and that a document merely marked for identification cannot found a finding of fact, relying on Benson Mutira Jiji v Gateway Insurance Co. Ltd (Civil Appeal 126 of 2018) [2022] KECA 368 (KLR) and Kenneth Nyaga Mwige v Austin Kiguta & 20 Others [2015] eKLR. 24.On the question of statutory notice, the Defendant submitted that the Plaintiff had not even pleaded service of statutory notice, and that a court could not make findings on an unpleaded issue, citing Raila Amollo Odinga & Another v IEBC & 2 Others [2017] eKLR and David Sironga Ole Tukai v Francis Arap Muge & 2 Others [2014] eKLR. In the further alternative, it submitted that even taking the pleadings and evidence at their highest, no certificate of posting or other proof of service had been produced as required by Order 6 Rule 6 of the Civil Procedure Rules, and that the burden of proving service, once denied, lay on the party alleging it, relying on Mariam Njeri Njau v Attorney General [2016] eKLR. It further submitted, relying on the discussion of section 12 of the Act in Benson Mutira Jiji v Gateway Insurance Co. Ltd (supra), that the Plaintiff ought to have demanded of the registered owner, Phylis Wangari, particulars of her insurer before proceeding against the Defendant, and having failed to do so, bore an unrelieved evidential burden which it had not discharged. The judgment of the trial court 25.In its judgment delivered on 9th December 2024, the trial court, having summarised the pleadings and the evidence of PW1 and DW1, framed two issues for determination: first, whether the tuk-tuk registration number KTWB 214C was insured by the Defendant; and second, whether the Defendant should satisfy the decretal sum arising from the primary suit. 26.On the first issue, the trial magistrate noted that the Plaintiff had not produced the insurance sticker or certificate, nor the police abstract (which remained only marked for identification), but held that the burden of proof, once discharged by way of the unchallenged AKI letter confirming that Insurance Certificate No. A7838862 had been allocated to the Defendant, had shifted, and that the Defendant's bare denial did not suffice to rebut it. The trial magistrate further held, relying on Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (supra) — which the judgment cites, apparently in error, as "Kenya Allied Insurance Co. Ltd" — that any objection as to the identity of the insured in the primary suit ought to have been raised in that suit, and proceeded, notwithstanding that observation, to make its own finding that the Defendant was the insurer of the vehicle. On the allegations of fraud and forgery, the trial magistrate held that the burden lay on the Defendant, to a standard above a balance of probabilities, and that no evidence whatsoever had been called to discharge it. 27.On the second issue, the trial magistrate held that the Defendant had an obligation to settle the decretal sum, but only up to the statutory limit of Kshs 3,000,000 under section 5 of the Act. It is to be noted that the judgment of the trial court, while extensively addressing the identity of the insurer and the allegations of fraud, is silent on the question of statutory notice under section 10(2)(a) of the Act, notwithstanding that this issue had been squarely pleaded by the Defendant and canvassed at length in the submissions of both parties. 28.The trial court accordingly ordered:(a)that the Defendant be and is required to honour the judgment and decree in CMCC No. 2405 of 2018 up to a maximum of Kshs 3,000,000; and(b)that costs of the suit be borne by the Defendant. The appeal 29.Aggrieved by that decision, the Defendant (now the Appellant) filed a Memorandum of Appeal dated 11th December 2024, setting out the following five grounds of appeal:1.That the learned trial magistrate erred in law in failing to hold that the Respondent had not satisfied the requirements of sections 5, 10 and 12 of the Insurance (Motor Vehicle Third Party Risks) Act, Chapter 405, Laws of Kenya.2.That the learned trial magistrate erred in law and in fact in holding that the Plaintiff proved his case against the Defendant to the required standard, and in failing to evaluate the evidence appropriately and make proper findings of fact and law.3.That the learned trial magistrate erred in law and in fact in failing to address whether or not there was service of statutory notice upon the Defendant herein.4.That the learned trial magistrate erred in law and in fact in failing to hold that service of statutory notice was not proved, and further failed to hold that no evidence was tendered to show that the Defendant herein issued a policy cover to Phyllis Wangari for motor vehicle registration number KTWB 214C.5.That the learned trial magistrate erred in holding that the issue of who was the insured should have been determined in the primary suit, in which the Appellant was not a party, and in again proceeding to determine the issue. 30.The Appellant prayed that the judgment of the trial magistrate delivered on 9th December 2024 be set aside and substituted with an order dismissing the suit with costs, together with the costs of the appeal. Parties' respective positions on appeal 31.The record does not contain submissions filed specifically in this appeal separate from the record of appeal itself; the parties' respective positions on appeal are, however, sufficiently discernible from the Memorandum of Appeal on the one hand, and from the Respondent's pleadings and the submissions filed on his behalf in the lower court — which he has not resiled from — on the other. It is on that basis that the rival positions are summarised below. The Appellant's case 32.The Appellant's overarching complaint, developed through grounds 1, 2, 3 and 4 of the Memorandum of Appeal, is that the trial magistrate misapprehended the evidentiary requirements of the Act and failed to properly evaluate the evidence on record. Specifically, the Appellant contends that liability under section 10 of the Act could only arise upon proof of a conjunctive set of elements: that the vehicle was insured by the Appellant; that the Respondent held a valid, subsisting judgment against the insured; that statutory notice of the bringing of the primary proceedings was given to the insurer within the time prescribed by section 10(2)(a); and that the Respondent was a person entitled to the benefit of the policy. It is the Appellant's position that none of these elements, save perhaps the existence of a judgment in the primary suit, was established to the required standard. 33.On the identity of the insurer, the Appellant maintains that the AKI letter relied upon by the trial court was, on its face, incapable of proving that the Appellant insured the specific vehicle and person in question, since it did not disclose the vehicle's registration number or the name of the person to whom any sticker was issued, and that the police abstract, never having been formally produced, ought to have been accorded no evidential weight. On this footing, ground 2 asserts that the trial magistrate failed to evaluate the evidence appropriately, effectively treating a document marked for identification, and an ambiguous letter, as sufficient proof of a fact squarely denied on oath. 34.The Appellant's principal and, in this court's assessment, most consequential complaint is articulated in grounds 1, 3 and 4: that the trial court never addressed itself to the question of statutory notice at all, notwithstanding that section 10(2)(a) of the Act makes proof of such notice a precondition to any liability on the part of an insurer, and notwithstanding that the point had been squarely pleaded in the Amended Defence and fully argued in the Appellant's written submissions before the trial court. The Appellant contends that this was not a mere omission of emphasis but a material failure to determine an issue that was dispositive of the suit. 35.Ground 5 raises a discrete point of internal inconsistency in the trial court's reasoning: having held, by reliance on Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (supra), that any dispute as to the identity of the insured ought to have been ventilated in the primary suit — a suit to which the Appellant was not and could not have been a party, since it was the insured and her driver, not the insurer, who were sued — the trial court nonetheless proceeded to determine that very issue in the declaratory suit. The Appellant submits that this reasoning is self-contradictory: if the issue was one properly reserved for the primary suit, the trial court could not consistently have gone on to resolve it in the present proceedings; and if it was properly justiciable in the present proceedings, then the observation attributing any fault to the Appellant for not raising it in a suit to which it was a stranger was misconceived and ought not to have coloured the trial court's ultimate finding. Respondent's case 36.The Respondent's position, as reflected in his pleadings and in the submissions filed in the lower court which he has maintained on appeal, is that the trial court correctly found that he had discharged his burden of proving, on a balance of probabilities, that the Appellant was the insurer of the offending vehicle, principally through the unrebutted AKI letter confirming allocation of the relevant insurance certificate to the Appellant. He contends that once that evidential threshold was met, the burden shifted to the Appellant to demonstrate non-coverage, cancellation, or avoidance of the policy, or to substantiate the plea of forgery, none of which it did. 37.On the question raised by ground 5, the Respondent's position, drawn from his reliance on Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (supra), is that a declaratory suit of this nature is not the proper forum for an insurer to contest, for the first time, facts that were capable of having been placed before the court in the primary suit through the exercise of its right, as the entity with an interest in the outcome, to intervene in or otherwise engage with those proceedings once it had notice of them; and that, in any event, the trial court's ultimate finding on the identity of the insurer rested independently on the documentary evidence before it, and not solely on that proposition. 38.On the question of statutory notice, the Respondent's position, drawn from the evidence of PW1 and the documents produced as exhibits, is that a statutory notice and demand letter, both dated 4th July 2018, were dispatched to the Appellant by registered post well before the primary suit was even filed on 23rd November 2018, and that the fact that the primary suit was defended, and that the Appellant's own advocate's messenger is said to have effected service, is circumstantial confirmation that the Appellant did in fact have notice of the proceedings within the meaning of section 10(2)(a) of the Act. The duty of this court as a first appellate court 39.This being a first appeal, this court is under a well-established duty to re-appraise the evidence on record and to draw its own conclusions of fact and law, bearing in mind that, unlike the trial court, it neither saw nor heard the witnesses testify, and must therefore make due allowance in that regard. This duty, long settled in this jurisdiction, was expressed in Selle v Associated Motor Boat Co. Ltd & Others [1968] EA 123, and is given statutory effect by section 78 of the Civil Procedure Act, which clothes this court with the same powers, and imposes on it the same duties, as are conferred on the trial court, including the power to determine a case finally on the evidence already on record where it considers it necessary or expedient to do so. 40.It is on that footing, and upon a fresh evaluation of the entire record, including the pleadings, the evidence of PW1 and DW1, the documentary exhibits, the rival submissions before the trial court, and the impugned judgment, that this court now turns to determine the appeal. Issues for determination 41.Having considered the grounds of appeal and the record as a whole, this court is satisfied that the following issues arise for determination:(i)Whether the trial court correctly found, on the evidence, that the Appellant was the insurer of tuk-tuk registration number KTWB 214C;(ii)Whether the trial court erred in its treatment of the Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa line of reasoning, having regard to the fact that the Appellant was not a party to the primary suit;(iii)Whether the Respondent proved, as he was required to, that statutory notice under section 10(2)(a) of the Act was served on the Appellant, and whether the trial court erred in failing to determine this issue;(iv)Whether the trial court properly evaluated the allegations of fraud and forgery raised by the Appellant; and(v)What orders should follow. Analysis and determination Identity of the insurer 42.Section 10(1) of the Act provides for the duty of an insurer to satisfy judgments against persons insured in the following terms:“(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 (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." 43.This court has re-examined the evidence on the identity of the insurer. It is common ground that the Respondent did not produce the insurance sticker or certificate itself, nor did he formally produce the police abstract, which remained no more than marked for identification. This court agrees with the Appellant, and with the authorities it cites — including Kenneth Nyaga Mwige v Austin Kiguta & 20 Others [2015] eKLR — that a document merely marked for identification, and never formally produced and proved, does not form part of the evidence on which a court may properly found a finding of fact. 44.That notwithstanding, the Respondent did produce, and the Appellant did not at any stage challenge, controvert, or seek to explain away, the letter from the Association of Kenya Insurers dated 6th February 2024, which confirmed in unambiguous terms that Motor Vehicle Insurance Certificate No. A7838862 had been allocated to the Appellant on 12th January 2017. DW1, in cross-examination, admitted that he was seeing that letter for the first time and could offer no evidence to rebut its contents. While the letter did not, on its face, name the registration number of the vehicle or the identity of the person to whom any sticker bearing that certificate number was issued, this was a matter capable of explanation or rebuttal by the Appellant, which was uniquely placed, as the entity to whom the certificate had been allocated, to produce its own underlying policy records to show to whom, if anyone, that certificate had in fact been issued, and in respect of what vehicle. It did not do so; indeed, DW1 confirmed that the Appellant had not produced any record at all in relation to the policy number in question. 45.This court is satisfied that the trial court was, on this narrow point, entitled to find that the evidential burden, once shifted to the Appellant by the unrebutted AKI letter, was not discharged, and that this finding was neither perverse nor against the weight of the evidence. Ground 2 of the appeal, to the extent that it faults the trial court's evaluation of the evidence on the identity of the insurer, therefore fails. The reliance on the Thomas Ochieng Apopa line of authority, and Ground 5 46.This court has considered ground 5 of the appeal with some care, since it identifies a genuine tension in the trial court's reasoning. The trial court held, following Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (supra), that any dispute as to the identity of the insured in the primary suit ought to have been raised in that suit, and yet immediately thereafter proceeded to make its own independent finding on that very question in the declaratory suit before it. It is correct, as the Appellant submits, that the Appellant was not a party to the primary suit and could not, as a stranger to those proceedings, have raised objections in it as of right, absent an application to be joined or to intervene. 47.This court is nonetheless satisfied that this tension in the trial court's reasoning, while real, was not dispositive of the outcome and does not, on its own, vitiate the judgment. The trial court's ultimate finding on the identity of the insurer, as this court has found above, rested independently on the documentary evidence — the unrebutted AKI letter — and not solely, or even primarily, on the proposition drawn from the Thomas Ochieng Apopa line of authority. That observation was, at most, an alternative or reinforcing basis for the trial court's finding, and its infelicity does not undermine the principal, evidence-based finding. Ground 5 accordingly does not, by itself, warrant the setting aside of the judgment. Statutory notice 48.Section 10(2)(a) of the Act provides that no sum shall be payable by an insurer under section 10 in respect of any judgment unless, before or within the time prescribed after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of those proceedings. This is not a mere procedural nicety; it is, on the plain terms of the section, a precondition to the accrual of any liability on the part of the insurer, and its proof lies squarely on the party who asserts it, in this case the Respondent, in accordance with sections 107 and 108 of the Evidence Act. 49.This court has scrutinised the record on this point and finds that the trial court's judgment, while extensive in its treatment of the identity of the insurer and the allegations of fraud, contains no analysis whatsoever of the question of statutory notice, notwithstanding that it was squarely pleaded in paragraph 10 of the Amended Defence, was the subject of DW1's evidence in cross-examination, and was fully argued in the written submissions of both parties before the trial court. This was a material omission. Grounds 3 and 4 of the appeal, which fault the trial court for this omission, are accordingly well founded. 50.Exercising its duty as a first appellate court to re-evaluate the evidence and, where the trial court has failed to make a necessary finding, to make that finding itself, this court has considered whether the Respondent in fact proved service of the requisite statutory notice on the Appellant. The Respondent's own evidence was that a demand letter and a statutory notice, both dated 4th July 2018, were sent to the Appellant by registered post. Notably, both documents predate the filing of the primary suit on 23rd November 2018 by more than four months, so that, had service in fact been effected, the requirement of prior or timeous notice under section 10(2)(a) would, on the face of it, have been satisfied. 51.The difficulty, however, lies in proof of service. PW1 candidly conceded in cross-examination that he did not have, and could not produce, a certificate of posting or any other postal receipt evidencing dispatch, let alone receipt, of either document. Neither the demand letter nor the statutory notice, as produced, bore any stamp or acknowledgment of receipt by the Appellant. DW1, for his part, denied that the Appellant had ever received either document, though he was equally unable to substantiate his further assertion that they had not been sent to the Appellant's correct postal address. 52.It is trite, as was held in Mariam Njeri Njau v Attorney General [2016] eKLR, that where service by post is disputed, a certificate of posting or other cogent evidence of delivery must be produced, and that the burden of proving such service, once denied, rests on the party alleging it and not on the party denying receipt. The Respondent, having elected to prove service by registered post, was obliged to produce a certificate of posting or equivalent proof; he did not do so. The circumstantial matters relied upon by the Respondent — namely, that the primary suit was defended, and that service is said to have been effected through the Appellant's advocate's messenger — do not, in this court's assessment, cure that evidential gap. The primary suit was defended by advocates on the record for the registered owner of the vehicle and her driver, not by or on behalf of the Appellant, and there is no evidence linking that defence to any instruction or intervention by the Appellant. As for the assertion that service was effected through the Appellant's advocate's messenger, this was hearsay evidence, attributed by PW1 in re-examination to what he says he was told by his own advocate, and was not the subject of any admissible, first-hand proof. 53.This court accordingly finds that the Respondent did not discharge the burden of proving that statutory notice was served on the Appellant as required by section 10(2)(a) of the Act. This finding is dispositive: since proof of such notice is, on the terms of the section, a precondition to any liability on the part of an insurer, its absence is fatal to the Respondent's claim, regardless of the finding on the identity of the insurer. Grounds 1, 3 and 4 of the appeal accordingly succeed to this extent. Fraud and forgery 54.In light of the finding above, it is not strictly necessary for this court to determine the allegations of fraud and forgery raised by the Appellant, since the appeal succeeds independently on the ground of want of proof of statutory notice. This court would nonetheless observe, for completeness, that it agrees with the trial court's finding that the Appellant wholly failed to substantiate its plea of forgery, a plea which, once raised, carried an evidential burden on the Appellant to a standard above a mere balance of probabilities. DW1's evidence on this point amounted to no more than a bare assertion that he had never seen the physical certificate and that no evidence had been placed before the court to demonstrate that it was genuine or that it belonged to the Appellant; that, without more, falls well short of the standard of proof required to establish fraud. Disposition 55.For the reasons set out above, this court finds that the appeal succeeds on the ground that the Respondent failed to prove, as he was required to, that statutory notice under section 10(2)(a) of the Insurance (Motor Vehicle Third Party Risks) Act, Chapter 405 of the Laws of Kenya, was served on the Appellant, a precondition without which no liability could accrue against the Appellant under section 10 of that Act. The appeal accordingly succeeds, notwithstanding that the trial court's finding on the identity of the insurer, and its rejection of the allegations of fraud and forgery, are upheld on their own terms. 56.Accordingly, this court makes the following orders:(a)The appeal is allowed.(b)The judgment and decree of the Chief Magistrate's Court at Mombasa in Civil Suit No. E1064 of 2022, delivered on 9th December 2024, are hereby set aside in their entirety.(c)In substitution therefor, it is ordered that the Respondent's suit in the lower court, Civil Suit No. E1064 of 2022, be and is hereby dismissed.(d)The Appellant shall have the costs of the suit in the lower court and the costs of this appeal. 57.It is so ordered. SIGNED, DATED AND DELIVERED ON 10 JULY 2026NGAAH JAIRUSJUDGE