https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8688

Pacis Insurance Co Ltd v Musembi & another (Suing as Legal Administrators of the Estate of Musyoka Musembi) (Civil Appeal E009 of 2024) [2026] KEHC 8688 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8688 (KLR) Republic of Kenya In the High Court at Makueni Civil Appeal E009 of 2024 RA Oganyo, J June 19, 2026 Between Pacis Insurance Co Ltd Appellant and Patrick Mutuku Musembi 1st Respondent Dorcus Kavanda Musembi 2nd Respondent Suing as Legal Administrators of the Estate of Musyoka Musembi (Being an appeal from the Judgement of the Senior Principal Magistrate’s Court at Makindu by Honorable Jacqueline.D. Karani (SRM) delivered on 18th January 2024 in Civil Case No 177 0f 2021) Judgment 1.This appeal arises from the Judgement of the learned Senior Resident Magistrate, Honorable Jacqueline.D. Karani delivered on 18th January 2024 in Civil Case No 177 0f 2021). The genesis of the underlying dispute arises from a road traffic accident that occurred on 12th November 2012 involving motor vehicle registration number KAR 748B, which was insured by the Defendant under Policy No. 0/01080/1/000046/2011TPO. 2.In the Plaint dated 27th July 2021, The Plaintiffs (now the respondents), (Dorcus Kavanda Musembi and Patrick Mutuku Musembi, suing as the legal administrators of the estate of Musyoka Musembi (Deceased), averred that the deceased sustained fatal injuries in the accident due to the negligence of the Defendant's insured driver. 3.Following the accident, the Plaintiffs instituted Makindu PMCC No. 526 of 2015 against the insured and obtained judgment on 27th January 2021 in the sum of Kshs. 1,387,288/= together with costs and interest. The Plaintiffs contended that despite having been served with the requisite statutory notice and demand, the Defendant failed to satisfy the decree issued in the said suit, hence the institution of the present declaratory proceedings seeking to compel the Defendant, as insurer, to settle the decretal sum. 4.The Defendant opposed the suit through a Statement of Defence dated 30th August 2021, wherein it denied liability and disputed that it insured motor vehicle registration number KAR 748B under the alleged policy. The Defendant further denied knowledge of the accident, the primary suit, the resultant judgment and decree, the service of statutory notices, and contended that no valid insurance cover existed at the material time, thereby putting the Plaintiffs to strict proof of their claim. 5.During the oral hearing, the Plaintiff (now the respondent), Dorcus Kavanda Musembi, testified on behalf of the Plaintiffs and adopted her witness statement dated 27th July 2021 as her evidence-in-chief. She also relied on the documents filed alongside the Plaint. She testified that the deceased, Musyoka Musembi, was her son and that he succumbed to injuries sustained in a road traffic accident involving the insured motor vehicle. She further stated that following the successful prosecution of a suit against the owner and driver of the motor vehicle, she instituted the present declaratory suit against the Defendant insurer. The Plaintiffs thereafter closed their case. 6.In response, the Defendant (now the Appellant) called Ann Njoki Kinyua, a Legal Officer of the Defendant company, who adopted her witness statement dated 2nd December 2021 as her evidence-in-chief. She maintained that the Defendant had not been served with the requisite statutory notice and consequently denied liability to satisfy the decree issued in the primary suit. Upon the conclusion of the hearing, the Defendant closed its case, where after both parties filed written submissions. 7.In evaluating the matter, the learned trial magistrate found that the Plaintiffs had proved their claim on a balance of probabilities. The court observed that the Plaintiffs had produced a statutory notice bearing the Defendant's stamp acknowledging receipt on 24th July 2014 and that the Defendant had not tendered any evidence capable of displacing the authenticity of the said notice. 8.The presiding judicial officer proceeded to hold as follows:“I thus on a balance of probability find that indeed the Defendant was duly aware of the primary suit. I have equally taken a look at the police abstract produced herein. At the top right corner, it shows that indeed the motor vehicle was validly insured at the time of the accident. Again, the defence witness merely alluded to lack of the same without showing any proof to the contrary. A police abstract is proof enough that indeed the vehicle was insured and, again, on a balance of probability, I find for the Plaintiff. I find that the Plaintiffs have been able to discharge their burden of proof and therefore enter judgment for the Plaintiffs against the Defendant.” 9.Having so found, the learned magistrate concluded that the Defendant (now the Appellant) was under a statutory obligation to satisfy the judgment issued in Makindu PMCC No. 526 of 2015 and accordingly entered judgment in favour of the Plaintiffs (now the respondents) for the decretal sum of Kshs. 1,566,577/= together with interest at court rates from 25th June 2021 and the costs of the suit. Aggrieved by the said decision, the Defendant (now the Appellant) lodged the present appeal. 10.The Appellant’s case is anchored on four primary grounds articulated in the Memorandum of Appeal dated 14th February 2024 and amplified in the written submissions dated 2nd March 2026. These are as follows: -i.That the learned trial magistrate erred in law and facts by failing to properly scrutinize and evaluate the evidence tendered by the Appellants and correctly analyze the same and thereby failed to arrive at a fair and reasonable judgment on the matters raised by the Appellant.ii.That the learned trial Magistrate erred in law and fact in deciding the case against the weight of the evidence on record and deciding to enter judgment against the Appellant.iii.That the learned trial Magistrate erred both in law and fact by making a declaration that the Appellant was liable to satisfy the judgment in Makindu PMCC 526 of 2015 against the weight of the evidence produced before the court and without any consideration to the testimony by Defence witnesses and submissions of the Appellants.iv.That the Trial Magistrate erred in law and fact in failing to properly consider the proper legal principles regarding attribution/liability of Insurance Companies under Insurance Motor Vehicle Third Party Claims Act Cap 405 and failing to consider the Judgement awards in cases of similar nature highlighted in the Appellants Submissions. The Appellant’s Submissions 11.The Appellant strenuously contended that the learned trial Magistrate fell into grave error both in law and fact by misapplying the principles governing insurer liability under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405. It was submitted that the court improperly treated a Police Abstract as conclusive proof of insurance cover, thereby erroneously imposing statutory liability upon the Appellant without strict proof of the existence of a valid and subsisting insurance policy in respect of motor vehicle registration number KAR 748B. 12.The Appellant further submitted that liability under Section 10 of Cap 405 only arises upon strict proof of a valid policy of insurance issued by the insurer at the material time. It was emphasized that the Respondent failed to produce any primary documentary evidence, including a certificate of insurance, policy document, cover note, Insurance Regulatory Authority records, or any independent confirmation linking the Appellant to the alleged policy number 010/080/100046/2011TPO. In contrast, DW1’s uncontroverted testimony expressly denied issuance of the said policy and confirmed that the Appellant had no record whatsoever of insuring the subject motor vehicle. 13.The Appellant further relied on the authorities of Mwanapili Omari v AMACO and Jiji v Gateway Insurance Co. Ltd, where the courts held that a Police Abstract, without supporting documentary or corroborative evidence, is insufficient to establish insurer liability. It was further submitted that the trial court misdirected itself by shifting the burden of proof to the Appellant contrary to Sections 107–109 of the Evidence Act, notwithstanding the settled legal principle that the burden remained upon the party asserting the existence of an insurance contract. 14.The Appellant therefore maintained that the statutory threshold under Section 10 of Cap 405 was not met, and that the learned trial Magistrate erred in both law and fact by imposing liability in the absence of proof of a valid insurance contract. It was submitted that the impugned judgment was founded on a misapprehension of the evidence and a misapplication of the law. 15.The Appellant accordingly urged this Honourable Court to allow the appeal in its entirety, set aside the judgment of the lower court, and substitute therefor an order dismissing the Respondent’s suit with costs both in the subordinate court and on appeal. The Respondent’s Submissions 16.The Respondents opposed the appeal through their written submissions, urging this Honourable Court to uphold the decision of the trial court and affirm the declaratory judgment issued against the Appellant. They maintained that the learned trial magistrate correctly found that the Appellant was the insurer of motor vehicle registration number KAR 748B and was therefore properly held liable under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405. According to them, the Respondents had successfully demonstrated the existence of insurance cover through the documentary material placed before the court. 17.It was the Respondents’ case that the police abstract, which was duly produced without objection, clearly identified the Appellant as the insurer of the subject motor vehicle under policy number 010/080/100046/2011TPO for the period running from 9th December 2011 to 8th December 2012. They further submitted that this information originated from official police investigations and therefore carried probative value sufficient to establish insurance cover on a balance of probabilities. 18.The Respondents further contended that the Appellant was duly served with a statutory notice on 24th July 2014, which it acknowledged, yet failed to issue any timely or formal denial of cover as contemplated under Section 10(4) of Cap 405. They argued that this failure to object or dispute the contents of the notice, when read together with the police abstract, created a strong presumption that insurance cover existed, which the Appellant failed to dislodge with credible evidence. 19.The Respondents maintained that they had discharged the requisite burden of proof in civil proceedings, relying on the principle in Miller v Minister of Pensions (1947) that proof on a balance of probabilities only requires a court to be satisfied that a fact is more likely than not. They argued that the Appellant’s denial of cover through DW1 amounted to a bare assertion unsupported by documentary evidence, as no policy records, regulatory confirmations, or internal insurance documentation were produced to rebut the Respondents’ case. 20.They therefore concluded that the trial court properly evaluated the evidence and correctly found in favour of the Respondents, as the legislative intent of Cap 405 is to protect third-party victims of road traffic accidents. They urged this Court to dismiss the appeal with costs, affirm the declaratory judgment, and uphold the Appellant’s obligation to satisfy the decree in Makindu CMCC No. E177 of 2024. Issues for Determination 21.Having carefully considered the Record of Appeal, the pleadings, and the submissions filed by the parties, this Honourable Court is of the view that the following issue arises as the main issue for determination:i.Whether the learned trial magistrate erred in law and fact in finding that the Appellant was the insurer of motor vehicle registration number KAR 748B at the material time and consequently liable under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405. Analysis and Determination 22.This Court is guided by the well-settled principle set out in Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123 and re-affirmed in Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212. Effectively, it is the mandatory duty of the appellate court to subject the entire lower court record to a fresh and independent evaluation, to re-examine the oral and documentary evidence, and to draw the appellate court’s own conclusions. In doing so, the appellate court remains cognizant of the fact that the appellate court neither saw nor heard the witnesses first-hand, and must make due allowance for the trial court’s observations on demeanour, unless the record reveals an error in principle or a clear misapprehension of the probabilities of the case. 23.The Court now turns to the core issue for determination, namely, Whether the learned trial magistrate erred in law and fact in finding that the Appellant was the insurer of motor vehicle registration number KAR 748B at the material time and consequently liable under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405. 24.Section 10(1) of Cap 405 only becomes operative where it is first established that a policy of insurance existed between the insurer and the person against whom judgment was obtained. In other words, liability under the Act is strictly contingent upon proof of a subsisting insurance contract covering the risk in question. Section 5(b) of the Act reinforces this position by requiring that the policy must, in substance, cover liability for death or bodily injury arising out of the use of the motor vehicle on a road. 25.The burden of proof in civil proceedings is settled. Section 107(1) of the Evidence Act places the burden upon the party who asserts the existence of a fact. The Respondents were therefore required to prove that the Appellant was the insurer of the subject motor vehicle at the material time. The legal burden does not shift unless and until credible evidence is adduced. 26.The Respondents’ case rested primarily on police abstract allegedly indicating the Appellant as insurer under policy number 010/080/1/000046/2011TPO and a statutory notice said to have been served upon and acknowledged by the Appellant. They further relied on the absence of an express denial in response to demand letters as supporting an inference of cover. 27.The Appellant, on its part, expressly denied ever issuing the alleged policy or insuring motor vehicle registration number KAR 748B. DW1, its Legal Officer, testified that no such policy existed in the Appellant’s records and that the alleged policy number could not be traced within its system. This evidence amounted to a clear and categorical rebuttal of the asserted insurance relationship. 28.The significance of a prior and express denial of cover was addressed in Gateway Insurance Co. Limited v (insured party), where the Court held that once an insurer denies having effected insurance before the institution of declaratory proceedings, the evidential burden does not automatically shift. The Court stated that in such circumstances, the claimant bears the responsibility of proving that the alleged certificate of insurance was indeed issued by the insurer, failing which the claim remains unproved. 29.The Court further observed that where an insurer denies cover at the earliest opportunity, the claimant is expected to take appropriate steps to verify the existence of insurance before proceeding, including pursuing available statutory mechanisms. Failure to do so leaves the claimant with the full burden of proving the alleged policy, which may include production of primary insurance documentation or independent corroboration. 30.In the present case, the Respondents did not produce any primary insurance documents such as a certificate of insurance, policy schedule, cover note, or underwriting records linking the Appellant to the alleged policy. No regulatory confirmation was obtained. The entire case was therefore anchored on secondary documents. 31.It is trite that a police abstract is only prima facie evidence of information recorded during police investigations. It may raise an inference but cannot, without more, establish the existence of a binding insurance contract, particularly where its contents are expressly disputed by the alleged insurer. 32.Equally, a statutory notice issued under Section 10 of Cap 405 is procedural in nature. Its purpose is to notify the insurer of an existing judgment and does not constitute proof of the underlying contractual relationship of insurance. 33.Once the Appellant gave evidence denying issuance of the policy, the evidential burden shifted back to the Respondents to prove, by cogent and primary evidence, that the Appellant was indeed the insurer of the subject motor vehicle. This they failed to do. 34.The learned trial magistrate therefore fell into error by treating the police abstract and statutory notice as conclusive proof of insurance cover, rather than prima facie material requiring strict proof and corroboration. 35.This approach effectively displaced the legal burden of proof and imposed upon the Appellant a duty to disprove a contractual relationship it had not been shown to have entered into, contrary to Sections 107–109 of the Evidence Act and the settled structure of liability under Section 10 of Cap 405. 36.In the circumstances, the Court finds that the Respondents failed to prove, on a balance of probabilities, that the Appellant was the insurer of motor vehicle registration number KAR 748B at the material time. 37.The learned trial magistrate therefore erred in both law and fact in relying on insufficient and uncorroborated evidence, thereby arriving at an erroneous finding on liability under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405. Disposition 38.In light of the foregoing analysis and findings, this Court makes the following orders:i.The appeal is hereby allowed.ii.The judgment and decree of the Senior Principal Magistrate’s Court at Makindu in Civil Case No. 177 of 2021 delivered on 18th January 2024 are hereby set aside in their entirety.iii.The Respondents’ suit in the subordinate court is hereby dismissed with costs to the Appellant.iv.The Appellant shall have the costs of this appeal.Orders Accordingly.Right of appeal 30 days. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE, 2026.R.A. OGANYOJUDGE.In the Presence of;Court Assistant…Sana, E.Mr. Gaya for the AppellantMr. Muindi for the Respondent