https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1023

Kenya Orient Ltd v Mohamed (Civil Appeal E067 of 2022) [2026] KECA 1023 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1023 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E067 of 2022 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA May 29, 2026 Between Kenya Orient Limited Appellant and Biyabu Noor Mohamed Respondent (Being an appeal from the Judgment of the High Court of Kenya at Mombasa (Njoki Mwangi, J.) delivered on 25th February 2022 in Mombasa HCCA No. 136 of 2019) Judgment 1.This is a second appeal from the Judgement of the High Court at Mombasa delivered by Njoki Mwangi, J. on 25th February 2022. By way of a plaint dated 21st April 2016, the respondent, Biyabu Noor Mohamed, filed suit (the declaratory suit) before the Resident Magistrate’s Court at Mombasa, being Civil Case No. 797 of 2016 against the appellant, Kenya Orient Limited. 2.The respondent pleaded that the appellant was the insurer within the meaning of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 (the Act) of motor vehicle registration number KBQ 509Y (the motor vehicle) belonging to Canon Auto World Limited vide Policy No. 405/107025793/9/2/TPO commencing on 5th January 2012 and ending on 4th January 2013. 3.In a separate suit, namely RMCC No. 754 of 2013, (the primary suit), the respondent sued the appellant’s insured for general damages, costs and interest thereon arising from injuries which she sustained in an accident involving the appellant’s insured motor vehicle KBQ 509Y in which she was a passenger along the Mombasa-Malindi Road. Her case was that the motor vehicle was so negligently driven by the insured’s driver as a result of which an accident occurred in which she sustained injuries. The respondent further pleaded that, by a Judgment delivered on 8th September 2014, the trial court awarded her Kshs.370,000 in general damages, Kshs.3,000 in special damages, costs and interest. 4.The respondent contended that the insured failed, refused and/or neglected to satisfy the judgement, as a result of which she was compelled to file the declaratory suit against the appellant, who was obligated under the Act to make good its part in satisfaction of the judgment, to pay the decretal sum and other incidentals. It was further contended that, as at 16th September 2014, the decretal sum stood at Kshs.414,075 plus accrued interest from the date of judgement. The respondent thus prayed for judgement against the appellant as follows:“i.A declaration that the appellant was statutory liable to satisfy the judgement obtained against its insured, Canon Auto World Limited in RMCC No. 754 of 2013 and the decree arising therefrom and directing the appellant to satisfy the said decree forthwith in the sum of Kshs.414, 075 plus accrued interest.ii.Costs and interest at court rates.ii.Any other or further relief that the Honourable Court deemed fit and just.” 5.In its Statement of Defence dated 2nd June 2016, the appellant denied that it issued an insurance cover to the motor vehicle as particularised by the respondent. The appellant averred that, if at all there was such an insurance cover, the same was a forgery and/or fraudulent, which it particularised as follows:“a.Manufacturing an insurance sticker or certificate and falsely indicating it has been issued by the appellant.b.Attempting to obtain compensation from the appellant through false means.c.Altering an insurance sticker to indicate that the motor vehicle was issued by the appellant to effectively aver the period between 5th January 2012 and 4th January 2013 and the appellant shall seek better particulars and copies of the insurance sticker and/or certificate from the respondent.”PARAGRAPH 6.The appellant’s further defence was that it was never served with a statutory notice as required by the Act; and that, even if it was served, the same would have no effect since it did not insure the motor vehicle as at the time of the accident. The appellant thus prayed that the suit be dismissed with costs. 7.In a brief Reply to Defence dated 16th June 2016, the respondent joined issue with the averments of denial by the appellant in the Statement of Defence, and further averred that the appellant was properly served with a statutory notice under the Act, but failed to respond thereto; that failure to respond to the notice is what precipitated the filing of the declaratory suit; and that the appellant was also served with a demand notice, which it also ignored. 8.At the hearing, the respondent testified as PW1. She stated that she sued the owner of the motor vehicle in the primary suit; that judgement was delivered in her favour; and that she knew who had insured the motor vehicle and what the policy number was vide the police abstract issued by the police, which she produced as part of her documentary evidence. 9.On the part of the appellant, its Branch Manager, one Caroline Simiyu, testified as DW1. She stated that the policy number 405/107025793/92/P, which the respondent alleged was issued by the insured, did not belong to the appellant’s insurance company; and that they did not even have a copy of the policy sticker. On cross-examination, she stated that the appellant was served with all pleadings including the statutory and demand notice, but that the documents in relation to the primary suit reached the appellant; and that she could not tell whether the insurance sticker was genuine or not. 10.In a judgment dated 28th June 2019, the learned Magistrate (Hon. E. Mutunga, SRM) allowed the respondent’s suit on finding that DW1 confirmed that the appellant was in receipt of all the documents filed in the primary suit as at the time of the institution of the suit. As to the validity of the policy of insurance, it was held that the police abstract produced in evidence, and which contained the information of the insurance policy, was not challenged in the primary suit and, accordingly, the court took it as proof that the appellant insured the motor vehicle. The respondent having obtained a proper judgement on the basis of an insurance policy which, according to the learned Magistrate, was valid as at the time of the accident, the learned Magistrate held that the claims of fraud and forgery on the part of the respondent had not been sufficiently proved. The respondent’s suit was thus allowed as prayed. 11.Aggrieved by that decision, the appellant filed an appeal to the High Court in which it raised the following grounds of appeal, namely that the learned trial Magistrate erred in law and in fact in holding that: the respondent had proved her case on a balance of probability; the appellant had insured the motor vehicle vide policy number 405/107025793/TPO issued to Canon Auto World Limited; the insurance or otherwise of a motor vehicle flows from the Certificate of Insurance whose copy is retained by the police and not from the police abstract; and that the trial Magistrate failed to appreciate and misrepresented the ratio decidendi in the case of Joel Omuga Opija vs. E.A. Sea Foods Ltd (2013) eKLR. 12.In her Judgment delivered on 25th February 2022, the learned Judge (Njoki Mwangi, J.), while associating herself with the sentiments of Mabeya, J. in the decision of APA Insurance Co. Ltd vs. George Masele (2014) KEHC 1548 (KLR), held that it would be impossible for a victim in an accident to provide a certificate of insurance, hence, a police abstract was sufficient evidence to demonstrate that an insurance company had insured a motor vehicle; and that, in this instance, the primary suit having proceeded ex-parte, it was sufficient proof of the fact that the appellant was the insurer of the motor vehicle as at the time of the accident. Dismissing the appellant’s appeal, the learned Judge concluded as follows:“37.Judgement in the primary suit was delivered on 8th September 2014 and the appellant was duly notified of the same by the respondent as required by law, a fact which is not disputed. Thereafter, the declaratory suit was filed on 22nd April 2016. The appellant having been served with the requisite statutory notice dated 26th April 2013, failed to move the Court to obtain a declaration to avoid liability despite being aware of its rights under Section 10 (2) and (4) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 of the Laws of Kenya. It is my finding that the appellant was not candid in its allegations as it made no effort to put into use the defence available to it under the said provisions. I therefore hold that the respondent proved her case on a balance of probability in the declaratory suit.” 13.Ultimately, the learned Judge dismissed the appeal and awarded the costs of the appeal and of the suit in the trial court to the respondent. 14.Further aggrieved, the appellant filed the instant second appeal. In a Memorandum of Appeal dated 3rd August 2022, it raised the following grounds:“a)That the learned trial Judge erred in law and misapplied the provisions of Section 10(4) of the Insurance (Motor Vehicle Third Party Risks) Act, Chapter 405 of the Laws of Kenya.b.That the learned judge of appeal erred in law and in fact in using the proceedings of Mombasa CMCC No. 754 of 2013 as evidence in the Mombasa SRMCC No. 797 of 2016 contrary to the provision of Section 34 of the Evidence Act.c.The learned judge and magistrate erred in law and in fact in holding that the respondent had proved their case on a balance of probability and in taking into account extraneous factors in holding as such.d.The learned trial judge erred in law and in fact and misdirected herself and abdicated her role as the first appellate court in failing to re- evaluate the evidence as a whole and make her own finding of fact.e.That the learned trial judge and magistrate erred in law in holding that the appellant should have raised its issues in the primary suit where it was not a party contrary to the provisions of Section 34 and 47 of the Evidence Act and Article 47 and 50 of the Constitution of Kenya and also because the issues therein were different from the declaratory suit.f.That both the trial court and the judge sitting on appeal mis-appreciated and failed to comprehend and properly apply the ratio decidendi in Joel Opinga vs. East African Sea Foods Ltd (2013) eKLR.g.That both the trial court and the judge erred in law in basing their decision on documents/exhibits or evidence that had not been tendered before the court.” 15.The appellant prays that: the judgement of the trial court delivered on 28th June 2019 be set aside and replaced with an order dismissing the suit with costs; the order by the learned Judge made on 25th February 2022 be set aside and replaced with an order allowing the appeal with costs; and that the appellant be awarded the costs of the appeal. 16.At the hearing hereof on Mr. Kioko appeared for the 9th December 2025, learned counsel appellant while learned counsel Mr. Mwakireti appeared for the respondent. Mr. Kioko adopted and highlighted the appellant’s written submissions dated 16th June 2025 while Mr. Mwakireti entirely adopted the respondent’s written submissions dated 9th September 2025. 17.Mr. Kioko submitted that the learned Judge erred in finding that failure to produce documentary evidence by the respondent was not an issue while it (the appellant) was not a party in the primary suit; that the issues in the primary suit were different from those in the declaratory suit in terms of determining liability, quantum and service of statutory notice; and that the two courts below erred in considering documents which were produced in the primary suit in proof of liability against the appellant in the declaratory suit while there was no application to invoke Section 34 of the Evidence Act, which deals with admissibility of evidence given in previous proceedings. 18.The decision of this Court in Gitobu Imanyara & 2 Others vs. Attorney General (2016) KECA 557 was cited for the proposition that the burden of proof lay with the person who asserts the existence of a fact; and that the standard of proof remains on a balance of probabilities on he who asserts, and does not change even in the absence of a rebuttal by the other side. The appellant further referred to the decision of Muhambi Koja vs. Said Mbwana Abdi (2015) KECA 635 (KLR) where this Court criticised the findings of the two courts below for not addressing how beneficial ownership of the suit motor vehicle therein was obtained. It was the appellant’s submission that the respondent’s suit was based on Sections 5 and 10 of the Act, which provisions were discussed in the decision of this Court in Benson Mutira Jiji vs Gateway Insurance Co. Ltd (2022) KECA 368 (KLR) to the effect that judgement under Section 10(1) of the Act can only be satisfied if the insurer had notice of the proceedings; and that this Court in the decision held that, under Section 12 of the Act, the claimant should be able to request the particulars of the insurance policy from the alleged insurer for him or her to demonstrate that the vehicle involved in an accident was insured by the insurer who is sued in a declaratory suit. 19.The appellant contended that the police abstract was not part of the documents in the List of Documents produced in the declaratory suit, and neither was it part of the documents in the primary suit. It was submitted that the Joel Opija case (supra) was not useful since the police abstract had been produced and was not challenged while, in the present case, neither the police abstract nor the insurance sticker were produced. To support this argument, the appellant cited the decision of this Court in Wekesa & Another vs. Mwangi & Another (Suing as the administrators of the Estate of James Kanene Mwangi - Deceased) (2023) KECA 1150 (KLR) in which the Court agreed that , in the absence of challenge, a police abstract report would be sufficient proof of ownership of a motor vehicle but that, where it (the police abstract report) is challenged, the party relying on it would need to produce certificate from the Registrar or any other proof, such as an agreement for sale of the motor vehicle, as conclusive evidence in the absence of proof to the contrary. 20.The appellant posited that Section 10(4) of the Act would only apply if it had been established that it (the appellant) was the insurer. For the reasons that it was not established that it was the insurer, the appellant submitted that the learned Judge was wrong in holding that the only defence available to the appellant was founded under Section 10(4) of the Act. 21.On her part, the respondent submitted that, despite having been served with a statutory notice and/or judgement in respect of the primary suit, the appellant failed to honour any of them as required under Section 12(1)(a) of the Act; that the appellant was sent a demand notice on 28th October 2014 requiring it to honour the decretal sum but failed to do so; that she (the respondent) produced and relied on the police abstract report in the primary suit, which confirmed that the appellant insured the motor vehicle, which fact was not challenged, and nor was evidence to the contrary produced; and that, for the appellant’s failure to deny or admit liability as required under Section 12(1) (a) of the Act, she urged that she proved that the appellant insured the motor vehicle. Reliance was placed on the persuasive decision in Pacis Insurance Limited vs. Mary Muthoni (suing as the personal representative of the Estate of Harun Mwangi Kamau (deceased) (2025) KEHC 11798 (KLR) of Magare, J. which emphasised that, an insurer was required to answer once served with a notice under Section 12 of the Act. 22.As regards production of the police abstract report and insurance sticker, the respondent submitted that those are issues which could not be raised at the declaratory suit or appeal, but could only have been dealt with in the primary suit; that, all that the respondent was required to prove was that she had obtained a valid judgement against the appellant’s insured; that she discharged her burden on a balance of probabilities that she served the statutory notice upon the appellant, and that the appellant’s denial of the same at this stage had come too late in the day; and that, consequently, the appellant was obligated to satisfy the judgement. 23.In conclusion, the respondent urged us to find that the appeal lacked merit, and that we should dismiss it with costs. Conversely, it was urged that we uphold the decisions of the two courts below. 24.The jurisdiction of this Court on second appeal is underpinned in Section 72 of the Civil Procedure Act, which states: 72.Second appeal from the High Court1.Except where otherwise expressly provided in this Act or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely-a.the decision being contrary to law or to some usage having the force of law;b.the decision having failed to determine some material issue of law or usage having the force of law;c.a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. 25.In Stanley N. Muriithi & another vs. Bernard Munene Ithiga [2016] eKLR, this Court held that:“We are conscious of our limited jurisdiction when dealing with a second appeal. Our reading of Section 72(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya, which provides for the circumstances when a second appeal shall lie from the appellate decrees of the High Court, indicates that the appeal must be on matters of law.” 26.In the same vein, this Court held thus in Kenya Breweries Ltd vs. Godfrey Odoyo [2010] eKLR that:“In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. In the case of Stephen Muriungi and another vs. Republic (1982-88) 1 KAR 360, Chesoni Acting JA (as he then was) said at page 366:‘We would agree with the view expressed in the English case of Martin v Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.’” 27.We have considered and scrutinised the record of appeal, the oral and written submissions by both parties and the authorities relied upon. The only issue that falls for our determination is whether the appellant was duty bound to satisfy the judgement delivered on 8th September 2014 in the primary suit. 28.The constant thread running through the appellant’s argument before the two courts below and in this appeal is that it did not insure the motor vehicle belonging to Canon Auto World Limited vide Policy No. 405/107025793/9/2/TPO commencing 5th January 2012 and ending on 4th January 2013.It is however not disputed that there was a road traffic accident involving the motor vehicle owned by the insured, Canon Auto World Limited. The respondent sustained injuries in the accident prompting her to file the primary suit that gave rise to the Judgment dated 8th September 2014. As afore-stated, judgment was entered for the respondent in the sum of Kshs.370,000 in general damages, Kshs.3,000 in special damages, costs and interest. The appellant, in asserting that it did not insure the motor vehicle, seeks to avoid satisfaction of the judgment in the primary suit. It insists that no proof was produced to the effect that it insured the motor vehicle, more so that the police abstract report and/or insurance certificate were not produced at the hearing of the declaratory suit. PARAGRAPH 29.The duty of an insurer to satisfy a judgement is imposed under Section 10(1) of the Act, but subject to the provisions under Section 10(2) (a) of the Act which provides that:“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 thirty days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings or ” 30.On the other hand, Section10(1) states: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.Provided that the sum payable under a judgment for a liability pursuant to this section shall not exceed the maximum percentage of the sum specified in section 5(b) prescribed in respect thereof in the Schedule. 31.Section 10(1) stipulates that, for an insurance company or insurer to satisfy the judgement, they must have received a notice of the institution of the suit either prior to the filing of the suit or within 30 days thereafter. DW1, Caroline Simiyu, the appellant’s Mombasa Branch Manager, testified that the appellant was served with a statutory notice on 26th April 2013. A perusal of the contents of the statutory notice is that it was also accompanied by the pleadings and the summons to enter appearance. The Notice dated 26th April 2013 read as follows:“The Claims ManagerKenya Orient Insurance Co. LtdO. Box 34530Nairobi By Registered PostDear Sir,RE: NOtice Under Insurance (motor Third Party Risk Act Cap 403 & 102 (b)) Policy Number: 405/107025793/9/2/tpo Insured: Canon Auto World Ltd MV/NO: KBQ 509Y MitsubishiInjured: Biyabu Noor MohamedNotice is hereby given that legal proceedings have been instituted in the Resident Magistrate’s Court at Mombasa against your above named insured in respect of an accident which was caused by your insured’s driver/servant and/or agent and in which the Plaintiff was seriously injured.The suit filed herein is RMCC NO. 754 of 2013. We enclose herewith a copy of the Plaint and Summons to Enter Appearance for your attention.Yours faithfully, Anyanzwa & CompanyS. O. Anyanzwa” (emphasis ours) 32.The last statement of the Notice is a testament that the Notice was indeed accompanied by a plaint and summons to enter appearance for the referenced suit. Therefore, the fact of service upon the appellant of the statutory notice as well as the relevant pleadings in the primary suit was established. Importantly is the fact that the primary suit was instituted by a plaint dated 21st April 2016, which is a testament that the Notice was issued well in advance as to allow the appellant to enter appearance and file a defence. The appellant crying foul too late in the day that it was unaware of the primary suit is undoubtedly without basis. 33.This Court in Abwao & 2 Others vs. Saham Assurance Limited (2025) KECA 1129 (KLR) agreed with the reasoning of Visram, J. (as he then was) in the case of Philip Kimani Gikonyo vs. Gateway Insurance Company Limited (2007) KEHC 1612 (KLR) where the question of a notice under Section 10(2) of the Act was dealt with in making a finding that:We fully endorse the reasoning of Visram, J. in Philip Kimani Gikonyo (supra). We reiterate that the primary objective of a notice is to inform the insurer of a potential claim and the associated risk of liability, thereby allowing the insurer to take proactive measures to protect its interests. These measures may include defending the action, conducting investigations, pursuing settlement options, or taking any other step deemed necessary to safeguard its rights. 34.The appellant’s argument in this appeal is that the respondent was under the obligation to ask for particulars of the insurance from the insurer under Section 12(1) of the Act which provides:“Any person against whom a claim is made in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 shall, on demand by or on behalf of the person making claim, state whether or not he was insured in respect of that liability by any policy having effect for the purposes of this Act or would have been so insured if the insurer had not avoided or cancelled the policy and, if was or would have been so insured, give such particulars with respect to that policy as were specified in the certificate of insurance issued in respect thereof under Section 7.” 35.In the persuasive decision in APA Insurance Co. Limited vs. George Masele (2014) eKLR, which the learned Judge cited, Mabeya, J. stated:“As to the Certificate of Insurance which Ms. Akonga insists should have been produced, I am of the contrary view. The Certificate of Insurance is usually issued to the insured and not the road accident victim. It is a document in the special knowledge and possession of both the insured and the insurer. The road traffic accident victim cannot access it. The details in the Police Abstract as to the details of insurance are in the ordinary cause of events obtained by the police from the Certificate of Insurance affixed to the motor vehicle or are supplied by the insured……” 36.To further cement its position, the appellant referred to the decision of this Court in Benson Mutira Jiji (supra) where it was held, inter alia, that Section 12(1) of the Act obliges the owner of a motor vehicle to disclose whether or not it was insured in respect to Section 5 of the Act which provides for requirements in respect of insurance policies. 37.We have read through the Benson Mutira decision and appreciated the circumstances which gave rise to the findings of this Court. The appellant’s lawyer wrote to the respondent therein, Gateway Insurance Co. Limited, asking it to file a defence to the suit they instituted against its purported insured persons. By a letter dated 24th February 2012, Gateway Insurance Co. Limited denied that it covered the purported insured persons, hence the findings that: “21.In the matter before this Court, the respondent had specifically denied having effected the insurance required by the Act to the owner of the offending vehicle at the time of the accident. This would, on the face of it, be at odds with the information the appellant had obtained from the police station, which investigated the accident. Important is that the denial was made before the hearing of the primary claim had commenced and certainly before the declaratory suit had been presented. 22.Had the appellant taken advantage of the avenue available by dint of section 12(1), and depending on the answer, if any, that the owner of the motor vehicle would have made, then the appellant would have made a decision as to whether or not to mount the declaratory claim against the supposed insurer. Only if the owner of the motor vehicle failed to respond or insisted that he was insured by the respondent would the respondent assume the evidential burden of proving that the copy of the certificate of insurance in the hands of the appellant was indeed a forgery. There is nothing onerous or burdensome about a claimant making a demand under that statutory provision. By failing to take advantage of the provisions of section 12(1), the appellant placed on himself the heavy burden of disproving that the copy of the certificate was a forgery. This burden may have included causing the owner of the vehicle to be summoned to give evidence on the authenticity of the certificate found on the car. Being of this persuasion, I must come to the conclusion that, at least in the circumstances of this case, the burden of proving that the certificate was properly and validly issued by the respondent rested upon the appellant and further, the evidential burden never shifted to the respondent and remained with him all thorough. Other than the evidence of the police officer which is discussed earlier in this decision, the appellant did not make any effort to prove that the copy of the certificate of insurance was a copy of a certificate issued by the respondent. I would endorse the holding of the first appellate court that the appellant had failed to discharge the burden of proof placed on him by the law.” 38.A further perusal of the statutory notice of which the appellant confirmed receipt, shows that it contained information regarding the policy number, the insured person, the motor vehicle involved in the accident and the injured person. Upon receipt of the notice, the prudent action which the appellant would have undertaken was to deny liability by stating that it was not aware of the said insured, just as the respondent in the Benson Mutira case or, in the alternative, file an application to be joined in the proceedings in the primary suit in order to rebut the evidence that it issued the certificate of insurance to the insured. Better still, the appellant would have instituted third party proceedings for purposes of apportioning blame to whomsoever else it thought was liable. These are the only circumstances under which the burden of proof would have shifted to the respondent. 39.To advance a spirited argument and at this stage deny liability, is escapism too late in the day. There was no further proof required at the declaratory stage other than that there was a legally acceptable judgement issued in favour of the respondent, which the appellant was liable to satisfy. Not only was the appellant served with the statutory notice and all the pleadings at the time of filing the suit, service was also confirmed by DW1, who also conceded that it (the appellant) was informed of the outcome of the suit. The Judgement in the primary suit was delivered on 8th September 2014. The declaratory suit was filed almost two years later on 22nd April 2016. The appellant had two years within which to seek to set aside the judgement and reopen the proceedings to prove its argument, which it did not. 40.Furthermore, the attempt to now shift the burden of proof to the respondent to prove the authenticity of the insurance sticker this late in the day is not only unfair, but is also untenable. It is difficult and almost impossible for an accident victim to be expected to be in possession of insurance policy of the accident vehicle. An accident victim cannot, by all means be expected to process an insurance cover belonging to the insured policy holder’s motor vehicle. By common usage, an accident victim learns of who the insurer of an accident vehicle is from the police abstract-and this is the scenario replicated in this case. The appellant having been notified of existence of the primary suit, and having failed to defence the suit, cannot cry foul this late in the day. 41.It is also paramount to note that, even at the declaratory stage, the appellant did not produce evidence to support its argument that it did not actually have the said policy number in its records, or that it even insured the motor vehicle belonging to Canon Auto World Limited at any one point. It only alleged fraud on the part of the respondent in obtaining the insurance cover as if it is the respondent who issued the insurance sticker to the motor vehicle without leading evidence to that effect. If at all fraud were to be imputed, it would be against Canon Auto World since they were the holders of the insurance sticker. 42.In the premise, we cannot fault the findings of the learned Judge that a valid judgement in the primary suit in favour of the respondent was delivered on 8th September 2014, and according to Section 10(1) of the Act, the respondent was entitled to file a declaratory suit. We are also in consonance with the findings of the learned Judge that the appellant did not plead to any of the defences under Sections 10(2) and 10 (4) of the Act at the time of filing of the primary suit and, therefore, the contention that it was not the insurer of the motor vehicle could not be a defence in a declaratory suit. 43.In the circumstances, we are satisfied that the appellant was well aware of the statutory notice which contained the particulars of the insured and the potential claim faced. The appellant had the opportunity to rebut any evidence presented in the primary suit to prevent any liability accruing against it. The documents produced in the formal proof proceedings were properly taken to be proof that the appellant was the insurer of the motor vehicle, and that no further proof was needed to be established at the declaratory stage. 44.Having established that there was a valid policy of insurance and, in the absence of evidence to demonstrate that it was not issued by the appellant to the subject motor vehicle and/or the insured, by virtue of Section 10 of the Act, the appellant is under a statutory obligation to satisfy the decree in the primary suit. We then find and hold that the learned Judge did not err in her findings on any of the seven grounds of appeal fronted by the appellant. 45.In conclusion, we find that the appeal is devoid of merit and is hereby dismissed with costs to the respondent. Consequently, we uphold the Judgement and Decree of the High Court at Mombasa delivered by Njoki Mwangi, J. on 25th February 2022. DATED AND DELIVERED AT MOMBASA THIS 29TH DAY OF MAY, 2026.A. K. MURGOR…………………............…..JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.…………………............…..JUDGE OF APPEALG. W. NGENYE-MACHARIA…………………............…..JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR