https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8784

Old Mutual General Insurance Kenya Ltd v Omwono (Civil Case E006 of 2024) [2026] KEHC 8784 (KLR) (Civ) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 8784 (KLR) Republic of Kenya In the High Court at Nyandarua Civil Civil Case E006 of 2024 KW Kiarie, J June 23, 2026 Between Old Mutual General Insurance Kenya Limited Plaintiff and Brian Obaga Omwono Defendant Judgment 1.Old Mutual General Insurance Kenya is the plaintiff in this case. In their plaint dated 4th August 2024. They were represented by M/s G & G Advocates LLP. They are seeking the following reliefs:a.A declaration that the plaintiff is not bound to settle or satisfy any judgment arising from Ol Kalou CMCC number E044 2024 Sophia Chebet Kiprop vs Brian Obaga Omwono or any judgment in any suit arising from the said accident or indemnify the defendant or any other person against any claim in respect of bodily injuries sustained by any person, property damage; or to satisfy any claim whatsoever arising out of the accident which occurred on the 1st day of February 2024 involving the defendant’s motor vehicle registration number KDL 474X.b.Costs of the suit.c.Interest on a (b) above at court rates. 2.The defendant did not enter an appearance nor file a defence. 3.Section 10 (4) of the Insurance (Third Party Motor Vehicle Risks) Act CAP. 405. Section 10 (4) of the Act provides as follows:(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 provision 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 whom notice of such action is so given shall be entitled, if he thinks fit, to be made a party thereto. [Emphasis added] 4.The suit that was filed in the Ol Kalou Chief Magistrate’s court on 16th April 2024. The plaintiff in this case is seeking declaratory orders in respect of the outcome of that suit. The Court of Appeal in Intra Africa Assurance Company Limited v Simon N. Njoroge & another [1997] KECA 104 (KLR) stated:However, section 10(4) (herein above set out) is an exception to the above general rule enunciated by s.10(1) of the Act. Plain meaning of s.10 (4) is that no sum shall be payable by an insurer under the earlier provisions of s.10 if (a) he has filed an action either before, or within three months after, the commencement of proceedings in which the judgment for damages was given and (b) has obtained a declaration that apart from any provisions contained in the policy he is entitled to avoid it on the ground that the policy was obtained by the non disclosure of a material particular or by a representation which was false in some material fact. With respect to the learned trial Judge, this sub-section cannot be interpreted as laying down a precondition that the aforesaid declaration must be obtained either before or within 3 months of the commencement of the proceeding in which the judgment sought to be enforced was given. 5.In Ol Kalou CMCC number E044 2024 Sophia Chebet Kiprop vs Brian Obaga Omwono, the plaintiff was Sophia Chebet Kiprop. The plaintiff in this case did not attach any notice to the said Sophia Chebet Kiprop. The only notice is to the defendant in this case. Since there was non-compliance with the proviso to section 10 (4) of the Insurance (Third Party Motor Vehicle Risks) Act, no declaratory orders can be issued. 6.The suit is therefore dismissed. DELIVERED AND SIGNED AT NYANDARUA, THIS 23RD DAY OF JUNE 2026KIARIE WAWERU KIARIEJUDGE