https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9773

Kenya Orient Insurance Limited v Ndunda (Civil Appeal E238 of 2024) [2026] KEHC 9773 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9773 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E238 of 2024 AN Ongeri, J June 25, 2026 Between Kenya Orient Insurance Limited Appellant and Mwanzia Ndunda Respondent (Being an Appeal from the Judgement of HON. S. KANDIE (RM) in MAVOKO CMCC NO. E1040 of 2023 delivered on 9/08/2024) Judgment 1.In the judgment delivered on 9th August 2024, the trial court addressed a suit brought by the Respondent against the Appellant, who was the insurer in the primary suit, Mavoko CMCC No. 1489 of 2018. 2.The Respondent had obtained a judgment in that primary suit and subsequently filed a declaratory suit in the trial court seeking a declaration that the Appellant was statutorily bound to satisfy the decree issued therein to the tune of Kshs 1,245,991. 3.The Appellant entered appearance and filed a statement of defence, denying the averments in the plaint and contending that it was not a party to the primary suit, had no knowledge of its existence, and that the decretal sum was unknown to it. 4.The Appellant further argued that strict proof of its obligation was required as it was neither a judgment debtor nor vicariously liable. 5.After the close of pleadings, the Respondent testified and closed his case, stating that the primary suit remained unsettled and that the Appellant was statutorily bound to satisfy the decree, asserting that he held a valid insurance policy with the Appellant. 6.The Appellant did not offer any evidence for the court's consideration. The trial court considered the pleadings, evidence, and the law, identifying the key issue as whether the Appellant was statutorily bound to satisfy the judgment in the primary suit. 7.In its written submissions, the Appellant's counsel argued that the ownership of the motor vehicle had not been substantiated, that the police abstract could not be used as proof of ownership, that proof of insurance had not been tabled, and that the statutory notice had been served incorrectly and in noncompliance with section 10(2) of the Insurance (Motor Vehicles Third Party Risks) Act, Chapter 405. 8.The trial court, however, referred to section 10 of the Act and reiterated the four-fold test for liability to accrue: that the Appellant insured the motor vehicle in question, that the Respondent had a judgment in his favour against the insured, that statutory notice was issued to the insurer either at least 14 days before the filing of the suit wherein judgment was obtained, and that the Respondent was a person covered by the insurance policy. 9.The trial court found that the Appellant had issued a policy as captured in the statutory notice and the police abstract, and noted that superior courts have held that it is difficult for an injured person to obtain the certificate of insurance, and that details in the police abstract are deemed sufficient. 10.The trial court further found that the statutory notice was issued and duly received by the Appellant, and that the Respondent had obtained a judgment in the primary suit and attached the decree, leaving no doubt that judgment was entered in his favour. 11.The trial court also confirmed that notice was issued in compliance with the provisions of section 10(2)(a) of the Act. 12.Consequently, the trial court entered judgment for the Respondent, issuing a declaration that the Appellant is statutorily bound to satisfy the judgment in Mavoko CMCC No. 1489 of 2018 to the tune of Kshs 1,245,991, and awarded the Respondent the costs and interest of the suit. 13.The appellant appealed against the said judgment on the following grounds;i.That the Learned Trial Magistrate erred in law and fact in failing to hold that the Respondent did not serve the statutory notice as provided under section 10(2)(a) of the Insurance (Motor Vehicle Third Party Risk) Act (Cap 405) Laws of Kenya.ii.That the Learned Trial Magistrate erred in law and fact in failing to hold that no notice of institution of suit was ever issued to the appellant.iii.That the Learned Trial Magistrate erred in law and in principle in failing to hold that in the absence of the Policy of Insurance or Certificate of Insurance being presented before the Court by the Respondent, the identity of the Insured therein, which was disputed, was unclear and was not proved.iv.That the Learned Trial Magistrate erred in law and fact in concluding that the plaintiff in the primary suit proved on a balance of probabilities that indeed the Appellant was the insurer of the defendant in the primary suit, yet there was no evidence tendered to affirm the same bearing in mind that there were two insurance companies linked to the defendant.v.That the Learned Trial Magistrate's Judgment was unjust and unfair given the weight of evidence and was based on misguided points of fact and wrong principles of law, and has occasioned a miscarriage of justice.vi.That the Learned Trial Magistrate erred in law and in fact in making a finding that there was sufficient and consistent evidence to establish the respondents case when the said evidence was contradicted and substantially rebutted by the appellant's submission.vii.That the Learned Trial Magistrate erred in law and principle by awarding costs to the respondent.viii.That ultimately, the appellant seeks to have the impugned judgment set aside and for the case to be heard on its merits, and additionally requests a stay of execution of the said judgment pending the hearing and determination of this appeal. 14.The parties filed written submissions as follows; The Appellant submitted that it is challenging the declaratory order that it is statutorily bound to satisfy a judgment of Kshs. 1,245,991/= in favour of the Respondent, Mwanzia Ndunda, which arose from an earlier primary suit, Mavoko CMCC No. 1489 of 2018, concerning a road traffic accident on 8th November 2015. 15.The Appellant’s memorandum of appeal, dated 4th September 2024, raises three primary grounds: that the trial magistrate erred in law and fact by failing to find that the Respondent did not serve the mandatory statutory notice under Section 10(2)(a) of the Insurance (Motor Vehicle Third Party Risk) Act, Cap 405. 16.Further, that the trial magistrate erred by failing to find that, in the absence of a Certificate of Insurance, the identity of the insured was unclear and unproved and that the judgment was unjust given the weight of evidence adduced. 17.The Appellant begins by acknowledging the jurisdiction of the High Court to hear the appeal, citing the principle from Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) that jurisdiction is everything, and further referencing the duty of a first appellate court to re-evaluate evidence as set out in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR and reiterated in Mwaura & another v Njoroge (Civil Appeal 226 of 2023) [2025] KEHC 12684 (KLR). 18.On the statutory notice issue, the Appellant directs the court to the record, showing that the accident occurred in November 2015, the primary suit was filed in November 2018, and judgment was delivered in November 2019, yet the notice under Cap 405 was dated 7th July 2023 and served on 3rd November 2023, three years after the judgment. 19.This, the Appellant argues, is a clear violation of Section 10(2)(a), which requires notice to be given before or within thirty days after commencement of proceedings, and the Appellant emphasises that this failure is not a mere technicality but a fundamental legal requirement. 20.To support this position, the Appellant relies on Mvuria Magwabi Chandago v African Merchant Assurance Co. Ltd [2017] KEHC 7047 (KLR), where the High Court at Mombasa held that failure to serve the notice absolves the insurer from liability, and that Article 159 of the Constitution cannot override a clear statutory obligation. 21.Similarly, in Stephen Mwangi Mutuku v Invesco Assurance Co Ltd [2019] KEHC 8410 (KLR), the court affirmed that the insurer is discharged from liability where mandatory notice is not served, and cited Directline Assurance Company Limited v Wilkinson Mwenda Erastus & 7 others [2016] eKLR for the proposition that this goes to the heart of the case and is not a curable technicality. 22.The Appellant also cites Nyamari v Cannon Assurance Limited (Civil Appeal 630 of 2019) [2024] KEHC 9857 (KLR), where the High Court at Milimani held that in the absence of proof of service of the statutory notice, the trial court’s hands were tied and liability could not be imposed. 23.Turning to the second ground, the Appellant argues that the Respondent failed to discharge the burden of proof under Sections 107 and 108 of the Evidence Act to show that the subject motor vehicle was insured by the Appellant. 24.While the Respondent produced a police abstract indicating insurance cover, the Appellant contends that this is insufficient without a Certificate of Insurance or similar corroborative document, such as an insurance sticker or a verification receipt from service. 25.The Appellant relies on Kenya Orient Insurance Co. Ltd v Ndalila (Civil Appeal E014 of 2023) [2025] KEHC 5388 (KLR), where the High Court at Kakamega held that a police abstract alone is not conclusive proof of insurance, and that the burden lies on the claimant to prove the existence of the policy; the insurer cannot be required to produce documents that do not exist in its records. 26.The Appellant therefore prays that the appeal be allowed, the trial court’s judgment set aside, the Respondent’s declaratory suit dismissed, and costs awarded to the Appellant. 27.The respondent’s written submissions begin by outlining the background of the appeal, which arises from a judgment delivered on 9 August 2024 in Mavoko Civil Suit No. E1040 of 2023. 28.The respondent had originally filed a suit seeking a declaration that the appellant was statutorily bound to satisfy a judgment entered in Mavoko 1489 of 2018, together with costs and interest. 29.The trial court entered judgment on 22 November 2023, declaring that the appellant was obliged to satisfy that judgment to the tune of Kshs 1,245,991, inclusive of costs and interest. 30.The appellant, being dissatisfied, lodged the present appeal. 31.The respondent acknowledges that this is a first appeal, and therefore the High Court has the duty to re-evaluate the evidence and reach its own independent conclusion. 32.However, the respondent urges the court to be slow to interfere with the trial magistrate’s findings, citing the principle Musera v Mwechelesi & Another (2007) KLR 159, where the Court of Appeal held that although an appellate court is entitled to make its own findings, it must be very slow to disturb clear and unequivocal findings of the trial judge unless there is absolutely no evidence to support them. 33.The respondent then addresses the two main grounds raised by the appellant. 34.On the issue of whether the trial magistrate erred in holding that the respondent served a statutory notice under section 10(2) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405, the respondent contends that the notice was indeed served on the appellant on 7 November 2023, and the suit was filed on 23 November 2023, as evidenced at page 15 of the record of appeal. 35.On the substantive question of whether the appellant is liable to satisfy the judgment against its insured, the respondent relies on section 10(1) of Cap 405, which imposes an obligation on the insurer to pay any sum payable under a judgment obtained against a person insured by the policy, notwithstanding any right to avoid or cancel the policy, and this includes costs and interest. 36.The respondent further notes that section 10(2) requires that the insurer have notice of the proceedings within thirty days of their commencement, and the respondent testified under oath that he served both the statutory notice and a demand letter upon the appellant, thereby complying with the provision. 37.Crucially, the respondent points out that this evidence was not challenged during the hearing because the appellant called no witness. 38.In support of the proposition that unchallenged evidence stands as proved, the respondent cites North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited) v City Council of Nairobi (2019) eKLR, where the learned judge adopted the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No. 23 of 1997, holding that where a defendant does not adduce evidence, the plaintiff’s evidence is to be believed, and allegations in the defence are not evidence. 39.The respondent also refers to the case of Motrex Knitwear Limited v Gopitex Knitwear Mills Limited, Nairobi (Milimani) HCCC No. 834 of 2002, where Lesiit J, citing Autar Singh Bahra and Another v Raju Govindji, HCCC No. 548 of 1998, held that where no witness is called on behalf of the defendant, the plaintiff’s evidence stands unchallenged and the defendant’s counterclaim must fail. 40.The respondent therefore submits that his case has been proved on a balance of probabilities and urges the court to uphold the lower court’s decision. 41.In addition, the respondent relies on the authorities of Peter Gichihi Nigunava v Jubilee Insurance Co. Ltd, NKR HCCC 57 of 2013, per Janet Mulwa J, delivered on 28 April 2016, and Justus Mutiga & 2 Others v Law Society of Kenya & Another, NRB HCCA 141 of 2016, per Alnashir Visram, M.K. Koome, and W. Karanja JJ, delivered on 20 April 2018, though no specific passages from those cases are quoted. 42.The respondent concludes by praying that the appeal be dismissed with costs to the respondent. 43.The issues for determination in this appeal are as follows;i.Whether the respondent served the mandatory statutory notice within the requisite time; andii.Whether the respondent proved that the appellant was indeed the insurer of the motor vehicle involved in the accident. 44.The appellant's main argument is that the statutory notice required by Section 10(2)(a) of Cap 405 was served after judgment had already been entered in the primary suit, thus vitiating the respondent's claim. 45.Section 10(2)(a) clearly provides that the insurer must have notice of the proceedings either before or within fourteen days (now thirty days following an amendment) after their commencement. 46.This requirement is not a procedural technicality but a substantive legal condition precedent to the insurer's liability, and where the notice is not served as prescribed, the insurer is statutorily absolved from liability. 47.The notice must be formal and explicit, as an insurer cannot be expected to deduce that proceedings will be brought from a mere inquiry or intimation. 48.The record shows the accident occurred in November 2015, the primary suit was filed in November 2018, judgment was delivered in November 2019, and the statutory notice was dated 7th July 2023 and served on 3rd November 2023, several years after the judgment. 49.This clearly falls outside the statutory timeframe. The appellant's failure to respond to the notice or to call a witness does not cure this fatal defect; such inaction creates a separate offence but does not generate liability that the law has expressly conditioned upon proper service of notice. 50.The appellant also contests the finding that it was the insurer, arguing that the respondent failed to produce the certificate of insurance to prove the existence of the policy. 51.The respondent relied on the police abstract to establish that the appellant was the insurer of the subject motor vehicle. 52.While the courts have acknowledged that it is often difficult for an injured third party to obtain the insurance certificate, the law places the burden of proof on the claimant to establish the existence of the policy and its terms. 53.A police abstract alone may not be conclusive proof of insurance, and the claimant must adduce sufficient evidence to prove the nexus between the insurer and the vehicle. 54.As the respondent did not produce the certificate of insurance or any other corroborative documentary evidence to demonstrate that the appellant was the insurer of the motor vehicle, this prong of the statutory test for liability has not been satisfactorily met on a balance of probabilities. 55.The trial magistrate, in finding for the respondent, appears to have been persuaded by the appellant's failure to adduce evidence rather than by the respondent's proof of the statutory tests. 56.The appellant's failure to call a witness means its defence remains merely unsubstantiated allegations, which is a significant factor in the respondent's favour. 57.However, the law is clear that the respondent, as the party seeking to impose a statutory liability upon the appellant, bears the burden of strictly proving the conditions precedent to that liability under Section 10 of the Act. 58.In this regard, the respondent has failed to prove the timely and proper service of the statutory notice, and the proof of the insurance contract rests on the police abstract alone, which is insufficient to discharge the burden of proof placed on him by the law. 59.The trial court erred by conflating the insurer's inaction with an admission of liability, thereby applying wrong principles of law. 60.In conclusion, the appellant's appeal succeeds. The judgment of the trial court delivered on 9th August 2024 is hereby set aside. 61.Consequently, the respondent's suit in Mavoko CMCC No. E1040 of 2023 is dismissed. 62.Each party shall bear its own costs of this appeal. 63.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026ASENATH ONGERIJUDGEIn the presence ofMr Kinyanjui for the AppellantNo appearance for the RespondentChrispin - Court Assistant