[2023] KEHC 24977 (KLR)

Kenya Orient Insurance Limited v Hemed (Civil Appeal 124 of 2021) [2023] KEHC 24977 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24977 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 124 of 2021

DKN Magare, J

November 6, 2023

Between

Kenya Orient Insurance Limited

Appellant

and

Farida Hemed

Respondent

Judgment

1. This Appeal arises from the Judgement and Decree of Honourabe F. Kyambia, Chief Magistrate delivered in Mombasa CMCC No. 2868 of 2010 dated and delivered on 20th August 2021.

2. The Trial Court entered Judgement for the Respondents for Kshs. 202,345/- plus costs and interest.

3. The Appellant being aggrieved by the Award filed this Appeal and preferred 6 grounds in the Memorandum of Appeal amended on 13th February 2023. a.The Trial Court erred in law and fact in finding that the Respondent had proved her case on a balance of probabilities.b.The Trial Court erred in law and fact in awarding the Respondent proved service of the Statutory Notice under Section 5 and 10 of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya.

4. I have perused the 6 paragraph Memorandum of Appeal. It is prolixious, repetitive, and unseemly. The proper way of filing an Appeal is to file a concise Memorandum of Appeal without arguments, cavil or evidence. The rest of the King’s language should be left to submissions and academia. Order 42 Rule, 1 provides as doth: -“1. Form of appeal –1. Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

5. The Court of Appeal had this to say in regard to Rule 86 (which is pari materia with Order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of Rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

6. Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the Court of Appeal observed that: -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

7. The Amended Memorandum of Appeal only raises two issues, that is: -a.Whether the Trial Court erred in law and fact in finding that the Respondent had proved her case on a balance of probabilities.b.Whether the Trial Court erred in law and fact in awarding the Respondent proved service of the Statutory Notice under Section 5 and 10 of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya.

The Appellant’s Submissions 8. The Appellant filed submissions dated 31st May 2023 in support of the Appeal.

9. The Appellant relied on the case of Gitobu Imanyara & 2 Others v Attorney General (2019) eKLR to assert the role of this Court in the Appeal. It was the submission of the Appellant that the Trial Court erred in finding that the Respondent had proved the case on a balance of probabilities.

10. The Appellant relied on the case of Daniel Toroitich Moi v Mwangi Stephen Muriithi (2014) eKLR to support the submission that the Respondent is bound by law and practice to lay the evidence to support the facts he pleaded. Further, it was submitted that the Respondent failed to prove service of statutory notice in accordance with Section 5 and 10 of the Insurance (Motor Vehicle Third Party Risks) Act within 30 days of the commencement of the proceedings.

11. The Appellant further relied inter alia on the case of UAP Insurance Co. Ltd v Patrick Charo Chiro [2021] eKLR where the court stated as follows:“16. The import of the above provision of the law is that for liability to accrue under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act CAP 405, there is a 4-fold test to be met. Firstly, that the motor vehicle in question was insured by the appellant; Secondly, that the respondent has a judgement in his favour against the insured; Thirdly, that statutory notice was issued to the insurer either at least 14 days before the filing of the suit wherein judgement has been obtained or within 30 days of filing the suit where judgement has been obtained and finally the respondent was a person covered by the insurance policy. See Roseline Violet Akinyi v Celestine Opiyo Wangwau (2020) eKLR and Stephen Kiarie Chege v Insurance Regulatory Authority & Another (2009) eKLR.

12. Reliance was also placed on the case of Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (suing as Administrator of the Estate of Pamela Agola Apopa) deceased [2020] eKLR where the court held as follows:“97. Section 10(2) of the Insurance (Motor Third Party Risks Act, Cap 405 provides:“10(2). No sum shall be payable by an insurer under the foregoing provisions of the section.(a)in respect of any judgment, unless before or within 14 days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings…..”98. The above statutory provision is clear that before the insurance company can pay or be obligated to pay the judgment sum decreed in the primary suit, the insurance company must have had Notice of the bringing or institution of the proceedings or suit, before such suit was filed or 14 days after such suit was filed.99. There is however, no limit as to what time the Notice should be given before commencement or institution of the suit. It follows that what is of essence is that there must be evidence that the insurance company had such Notice of the intended proceedings any time before the suit was instituted.”

13. The Appellant further submitted that the trial court wrongly relied on the Respondent’s demand letter dated 23rd July 2009 which was served long after the conclusion of the primary suit to find that the Respondent had served the statutory notice anticipated under the law.

14. Directions were issued for the filing of written submissions, in the presence of both parties. I have not had sight of the Respondent’s submissions.

Analysis 15. This Court has considered the pleadings, evidence, submissions and authorities relied on by the parties in support and opposition to the Appeal.

16. The issues that fall for this Court’s determination are therefore as follows:a.Whether the Trial Court erred in law and fact in finding that the Respondent had proved her case on a balance of probabilities.b.Whether the Trial Court erred in law and fact in awarding the Respondent proved service of the Statutory Notice under Section 5 and 10 of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya.

17. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand., Except, however, that it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies.

18. In the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123, the Court stated as follows:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

Whether The Trial Court Erred In Law And Fact In Finding That The Respondent Had Proved Her Case On A Balance Of Probabilities. 19. The burden of prove in civil cases is set out under the Evidence Act and has been propounded by Courts in numerous cases. The Appellant’s case is that a proper statutory notice was not served as required under the law and the court erred in finding in favour of the Respondent on a balance of probabilities.

20. It is contended that the Respondents did not prove their case on a balance of probabilities as required under Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya which provides that:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

21. The legal burden of prove under Section 107 of the Evidence Act lies upon a party who asserts the affirmative of the issue. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”

22. The initial burden of proof lies on the Plaintiffs, but the same may shift to the Defendant, depending on the circumstances of the case. For instance, in Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail fi no evidence at all were given as either side.”

23. This is called the legal burden of proof. There is however evidential burden of proof which is captured in Sections 109 and 112 of the same Act as follows:“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

24. Flowing from statute and judicial pronouncements on the legal burden and standard of proof in civil matters, I find no error on the part of the trial court in finding that Motor Vehicle Registration Number KAR 932R that knocked the Respondent down was insured by the Appellant and the date of the accident could not change this fact since the validity of the policy was not in dispute.

25. Indeed this was proved on a balance of probabilities and was well supported by the proceedings as well as the exhibits produced in court.The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

26. I note that the Appeal arises from a declaratory suit. It is imperative to distinguish this suit and the original suit. The issues in this suit must be limited to it and must not wander into resuscitating the issues in the original suit because the judgement entered in the original suit stands and was not appealed and is not subject to these proceedings.

27. The Learned Trial Magistrate correctly analyzed the issues in the statutory suit on a balance of probabilities and based on the available materials filed in court. In Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 the Court held that;“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”

28. In the case of Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:“Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say: -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will loose because the requisite standard will not have been attained.”

29. It must be understood that in the derivative suit, issues on the liability and quantum of damages awarded in the primary suit will not be entertained at this stage because they were settled by the judgement in the original suit. This is especially so if such issues did not arise in the declaratory suit but are as an afterthought sought in the Appeal. The Appellant has to limit itself to the issues on service of the statutory notice as anticipated by the law.

30. I say so because I have perused the Statement of Defence dated 22nd November 2010 that was filed by the Appellant and note an attempt to attack liability and deny the existence of the insurance policy. These are issues that go to the root of the original suit and if they were not raised there, they have no place in this Appeal.

31. Therefore, I find no reason to interfere with the Judgement of the trial court under this head because the Appellant has not established that the court erred and failed to properly apply the standard of proof which is on a balance of probabilities. This position was also well summarized by Njugi, J (as she then was) in Taidy’s Restaurant v Gerfas Otieno Sammy t/a Nyanco Investment Contractors [2019] eKLR where she reflected the proper standard of performance of contracts as follows:“The plaintiff in a civil suit is required to prove his or her case on a balance of probability-see Kirugi & Anor. -vs- Kabiya & 3 others [1987] KLR 347. In the present matter, I am satisfied that the trial court properly reached the conclusion that the appellant had entered into a contract for the construction of a car park for the appellant, that the respondent had performed his part of the contract but the appellant had failed to pay the contractual sum, and it properly entered judgment for the respondent.”

Whether The Trial Court Erred In Law And Fact In Awarding The Respondent Proved Service Of The Statutory Notice Under Section 5 And 10 Of The Insurance (motor Vehicle Third Party Risks) Act Cap 405 Laws Of Kenya. 32. On this issue, I capture the Appellant to contend that the Respondent served a statutory notice referring to an accident that had occurred on 21st July 2008 when in fact the accident date noted in the police abstract was 31st July 2008. According to the Appellant therefore, it was not served with a proper statutory notice in respect of the actual date of the accident.

33. The Trial Court relied on the case of United Insurance Co. Ltd vs Lawrence Ruthi Mwangi (2004) eKLR where the Court stated thus:“Mr. Wamalwa attempted to split airs by arguing that the notice referred to different date from the date given in the Plaint. This is a very minor issue. The notice referred to an accident having occurred on 12th December 1996 while the plaint in the primary suit and the suit against the Appellant referred to an accident on 13th December 1996. Either way, the Appellant has not shown that once he received that notice, it either commenced before or within 3 months of the primary suit an action fir declaration that it was entitled to avoid the policy…in my view, once judgment was entered in the primary suit against its insured, the magistrate of the lower court was entitled to hold as he did the Applicant by his conduct was estopped from denying existence of the insurance of the offending motor vehicle.”

34. Consequently, the trial court found that the Appellant was served with notice of institution of the suit. any errors of=n the notice do no go to the route of the notice. I have perused the Record of Appeal filed in Court. Like the trial court, I note the Appellant’s contention is not that it did not receive the statutory notice. Otherwise, that the statutory notice referred to a different date of the accident.

35. However, the Appellant does not deny insuring the accident motor vehicle. Clearly, to me it would have been different if the Appellant’s case were that the accident motor vehicle was different and not the same as the insured motor vehicle. This would have proffered a ground for consideration in the Declaratory Suit and the Appeal in seeking to declare the original judgment a nullity.

36. In addressing this issue, it is imperative that I first deal with the law on the subject. Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, Chapter 405 of the Laws of Kenya is what the respondent’s claim is hinged on and it provides as follows -“Duty of insurer to satisfy judgements against persons insured:(1)If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of Section 5 (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.(2)No sum shall be payable by an insurer under the foregoing provisions of this section –(a)in respect of any judgment, unless before or within fourteen days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings; or(b)in respect of any judgment, so long as execution thereon is stayed pending an appeal; or(c)in connection with any liability if, before the happening of the event which was the cause of the death or bodily injury giving rise to the liability, the policy was cancelled by mutual consent or by virtue of any provisions contained therein, and either(i)before the happening of the event the certificate was surrendered to the insurer, or the person to whom the certificate was issued made a statutory declaration stating that the certificate had been lost or destroyed; or(ii)after the happening of the event, but before the expiration of a period of fourteen days from the taking effect of the cancellation of the policy, the certificate was surrendered to the insurer, or the person to whom the certificate was issued made such a statutory declaration as aforesaid; or(iii)either before or after the happening of the event, but within a period of twenty – eight days from the taking effect of the cancellation of the policy, the insurer has notified the Registrar of Motor Vehicles and the Commissioner of Police in writing of the failure to surrender the certificate.(3)…………(4)No sum shall be payable by an insurer under the foregoing provisions of this section if in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy he is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or, if he has avoided the policy on that ground, that he was entitled so to do apart from any provisions contained in it:Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgment obtained in proceedings commenced before the commencement of that action, unless before or within fourteen days after the commencement of that action he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the non-disclosure or false representation on which he proposes to rely, and any person to whim notice of such action is so given shall be entitled, if he thinks fit, to be made a party thereto.

37. An error on the date of the accident was an error to cure by amendment. It should have been raised by either party or by the court itself. However, it is not one that would go to the root of the case in the circumstances of this case as to set aside the decision of the court. The court has to balance the interest of both parties: that is, the harm to the Appellant and the Respondent. This is particularly so in view of Article 159 of the Constitution which proffers substantive justice over procedural technicalities. It is also as much supported by the fact that the Appellant undisputedly insured the accident motor vehicle.

38. In the case of Ali Okata Watako V Mumias Sugar Co. Ltd [2012] eKLR, the court stated doth:“I do find that the pleadings in paragraph 5 of the plaint showing the date of accident as 24th April 2002 was a typographical error which could have been amended orally or by the court itself as provided for under Section 100 of the Civil Procedure Act. Justice is being fair to all the parties and I do find that dismissing the appellant’s suit on account of the discrepancy on the date of accident was not fair. The appellant adduced evidence showing that the accident did occur and he sustained injuries as a result of the accident.”

39. I therefore find no reason to interfere with the finding of the trial court on the issue of service of proper statutory notice.

Determination 40. In the circumstances, I make the following Orders.a.The Appeal is dismissed.b.Accordingly, in exercise of the powers granted to the Court under Section 27 of the Civil Procedure Act, I award costs of the Appeal of Kshs 90, 000/= payable to the Respondent within 30 days from the date hereof. In default execution to issue. It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 6TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-No appearance for partiesCourt Assistant Brian