[2023] KEHC 26596 (KLR)

Orina v UAP Insurance (Civil Appeal E044 of 2022) [2023] KEHC 26596 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26596 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E044 of 2022

WA Okwany, J

December 14, 2023

Between

Rose Nyanganyi Orina

Appellant

and

UAP Insurance

Respondent

(Being an Appeal against the Judgment and Decree of Hon. W. C. Waswa – SRM Nyamira dated and delivered on 22nd September 2022 in the original Nyamira Chief Magistrate’s Court Civil Case No. E144 of 2021)

Judgment

1. The Appellant herein was the Plaintiff before the lower court where she filed a declaratory suit seeking orders, inter alia, orders for a declaration that the Respondent makes good the claim in Nyamira CMCC No. 51 of 2015 in the sum of Kshs. 446,148/= on the basis that judgment was obtained against the Respondent’s insured.

2. The Appellant’s case was that she was on or about 9th June 2014, a lawful pedestrian walking along the verge of Nyamira-Kisii road when at Kamera area, the Respondent’s insured, driver, servant and/or agent recklessly, negligently controlled and/or managed motor vehicle Registration No. KBX 076R thereby permitting it to lose control and violently knock her down. It was the Appellant’s case that she sustained injuries in the said accident thus necessitating the filing of the primary suit against the Respondent’s insured where she was awarded general damages of Kshs. 446,148/=.

3. The Appellant contended that since the Defendant in the primary suit, one Clifford Ogonya Ayiera was the Respondent’s insured, the Respondent was under Section 10 of the Motor Vehicle Third Party Risks Act, Cap 405 Laws of Kenya (hereinafter “the Act”) under a duty to settle the claim.

4. The Respondent, on the other hand, contended that it was not served with the notice of intention to sue as required by Section 10 of the Act. It was the Respondent’s case that even if the said notice was served, it was not legally bound to act upon such notice because the said Clifford Ogonya Ayiera, the defendant in Nyamira CMCC No. 51 of 2015, was not insured by UAP Insurance at the time of the accident.

5. The trial court entered judgment against the Appellant and held that she did not prove that the statutory notice was served on the Respondent in accordance with the provisions of Section 10 of the Act.

6. Dissatisfied with the decision of the trial court, the Appellant instituted the present Appeal through the Memorandum of Appeal dated 21st September 2022 in which she raised the following grounds of appeal as follows: -1. The Learned Trial Magistrate erred in law and in fact by taking into consideration extraneous matters that had not been contested at all thereby arriving at an erroneous decision to the prejudice of the Appellant.2. The Learned Trial Magistrate grossly erred in law and in fact by failing to find the balance of convincing (sic) tilted in favour of the Appellant.3. The Learned Trial Magistrate erred in law when he failed to properly evaluate the evidence on record and the facts of the case thus reaching an erroneous decision.

7. The Appeal was canvassed by way of written submissions which I have considered. The main issue for determination is whether the appeal is merited.

8. The Court of Appeal explained the duty of a first appellate in David Njuguna Wairimu v Republic [2010] eKLR thus: -“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”

9. The Appellant’s claim against the Respondent is premised on Section 10 of the Insurance (Motor Vehicles Third Party Risks) Cap 405 which stipulates as follows: -10. Duty of insurer to satisfy judgments 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.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.(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 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(b)in respect of any judgment, so long as execution thereon is stayed pending an appeal; or(c)in connexion 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 provision 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)It shall be the duty of a person who makes a statutory declaration, as provided in subparagraphs (i) and (ii) of paragraph (c) of subsection (2), to cause such statutory declaration to be duly served upon the insurer together with a disclosure under oath of all the documents intended to be used to prove the claim whether in or out of court.

10. It was not disputed that the Appellant is the decree holder in Nyamira CMCC No. 51 of 2015. It was also not disputed that the said decree was obtained against the owner of the accident motor vehicle, one Clifford Ogonya Ayiera. The main issue in dispute is whether the said defendant/owner of the motor vehicle was insured by the Respondent herein at the time of the accident.

11. I have considered the Appellant’s case before the trial court where she filed several documents including a Police Abstract dated 26th August 2014 which indicates that the Respondent was the Insurer of the motor vehicle KBX 076R under Policy Number 140/070/1/002716/2014/TP. I however note that at the trial, the Appellant only produced the Plaint, demand letter, decree in the previous suit and a statutory notice dated 8/9/2022.

12. Section 107 of the Evidence Act states that:-1. 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.2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

13. In Mbuthia Macharia v Annah Mutua & Another [2017] eKLR the Court of Appeal explained the legal burden of proof as follows: -(16)“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? In this case, the incidence of both the legal and evidential burden was with the appellant.”

14. In the same manner, I find that the burden rested on the Appellant and it was incumbent on her to discharge it. I note that even though the Police Abstract would have been prima facie proof that the Respondent had insured the motor vehicle in question, the fact that she did not produce it in court rendered it of no probative value. This means that this Court has nothing to go by in ascertaining if the Respondent was indeed the Insurer of the subject motor vehicle. I am guided by the Court of Appeal’s decision in Kenneth Nyaga Mwige vs. Austin Kiguta & 2 others [2015] eKLR where it was held that: -“18. The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents - this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record. (emphasis added)

15. Similarly, in the Nigerian case of Michael Hausa vs. The State (1994) 7-8 SCNJ 144, it was held that: -“If a document is not admitted in evidence but is marked for identification only, then it is not part of the evidence that is properly before the trial judge and the judge cannot use the document as evidence.”

16. In view of the fact that neither the Police Abstract, nor the Insurance Certificate was produced in evidence, I find that the Appellant did not discharge the legal burden of proof on a balance of probabilities. It was necessary for the Appellant to tender the said documents in evidence in order to demonstrate that she had a claim against the Respondent under section 10 of the Act. In the absence of the said documents, I find that the Appellant did not establish that the Respondent is liable to settle claims emanating from the alleged insurance policy.

17. Having found that there was no evidence to show that Respondent insured the motor vehicle in question, I find that it is not necessary to delve into the issue of whether the Statutory Notice under section 10 of the Act was duly served upon the Respondents. I however hasten to add that the Appellant did not tender proper proof of service of the statutory notice upon the Respondent prior to the filing of the primary suit against the Respondent’s alleged insured.

18. In the final analysis, I find that the instant Appeal is not merited and I therefore dismiss it with costs to the Respondent.

19. Orders accordingly.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 14TH DAY OF DECEMBER 2023. W. A. OKWANYJUDGE