https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7406

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CIVIL CASE NO E014 OF 2025 PATRICK OMONDI ODINGO ....................................................... PLAINTIFF - VERSUS - THE MONARCH INSURANCE ……...…………………............ DEFENDANT J U D G M E N T 1. The plaintiff filed suit vide the plaint dated 3/6/2025 seeking a declaration to compel the defendant to satisfy and settle the judgments in Kisumu Civil Case No. 275 & 276 of 2019, that he be refunded Kshs. 200,000/- being advocate fees expended in both cases as well as costs of the suit. 2. The plaintiff averred that he is the registered owner of motor vehicle registration number KAK 417C SUZUKI VITARA that was comprehensively insured by the defendant with a policy running from the 24/5/2018 – 28/4/2019. That he was involved in an accident on the 10/8/2018 and subsequently as a result of the fatal injuries arising therefrom, multiple suits were instituted against him and judgment entered against him to the tune of Kshs. 1,172,652/- and Kshs. 1,150,000/-, respectively which the defendant has declined to settle. Page 1 of 6 3. The defendant filed its statement of defence dated 11/11/2025 denying the plaintiff’s averments and further stating that no liability attached on their behalf to satisfy the aforementioned judgments as it was not issued with proper notice of institution of the primary suit thus it was condemned unheard and that the said judgments fell outside the scope of the cover. 4. In support of his case, the plaintiff testified as Pw1. He reiterated the averments in his plaint and witness statements of date 3/6/2025. He testified that after the accident, he notified the defendant of the same and was issued with a Motor Vehicle Accident Report Form which he duly filled. 5. That in the course of the proceedings in the lower court, the advocate appointed by the defendant ceased representing him on account of having not been paid by the defendant forcing him, the plaintiff, to appoint his own advocate. 6. That subsequently, judgment was entered against him after which he issued the defendant a notice of entry of judgment dated 29/5/2025 but the defendant has failed to settle the said judgments. 7. In cross-examination, the plaintiff reiterated his testimony and further stated that he had a comprehensive cover with the defendant. That after the advocate appointed by the defendant ceased representing him, he went to the defendant’s office in Kisumu but was informed that the defendants had Page 2 of 6 stopped operating in Kisumu. In re-examination, the plaintiff reaffirmed his testimony after which he proceeded to close his case. 8. On its part, the defendant failed to call any witnesses in their defence and instead elected to close their case. 9. Accordingly, the only issue for determination is whether the plaintiff has proved his case to merit the grant of the orders sought. 10.The general rule is that he who alleges must prove. That is the command of section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: - “As a general proposition under section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 11.In this case, the plaintiff put forth his case supported by documentary proof showing that he was comprehensively insured by the defendant with a policy running from the 24/5/2018 – 28/4/2019. That he was involved in an Page 3 of 6 accident on the 10/8/2018. That as a result of the fatal injuries arising therefrom, judgments were entered against him to the tune of Kshs. 1,172,652/- and Kshs. 1,150,000/-, respectively which the defendant declined to settle. 12.That at the commencement of those suits, it is the defendant who had appointed an advocate to defend the plaintiff. That advocate however withdrew from acting as a result of the defendant’s failure to pay her. That forced the plaintiff to appoint his own advocate to represent him and he settled that advocates fees. That by virtue of having initially appointed an advocate, the defendant was on notice of the occurrence of the accident and the subsequent filing of the suit. 13.To that point, the evidentiary burden of proof shifted from the plaintiff to the defendant. It was upon the defendant to displace that burden by calling evidence in support of its defence. It failed to do so. Therefore, the plaintiff’s case remained proved as presented before the trial court. 14.In any case, the Plaintiff’s cause of action is anchored on the provisions of Section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act which provides as follows: “10. Duty of insurer to satisfy judgments against persons insured Page 4 of 6 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.” 15.I am therefore persuaded that the plaintiff has proved his case against the defendant on a balance of probabilities. 16.As regards the advocate fees of Kshs. 200,000/- claimed by the plaintiff, it is trite that these fees are in the nature of special damages which by law need not only to be specifically pleaded but also proven. No evidence in the form of receipts or any other form has been presented before the court substantiating this claim. This limb of the claim thus fails. 17.In the circumstances, I hereby enter judgment for the plaintiff as follows: - Page 5 of 6 a) It is hereby declared that the defendant is bound to satisfy the judgments entered against the plaintiff in Kisumu Civil Cases No. 275 & 276 of 2019 to the tune of Kshs. 2,322,652/-. b) The claim for advocates cost of Kshs.200,000/- was not proven and the same is therefore dismissed. c) Costs of the suit is awarded to the plaintiff with interest. It is so ordered. DATED and DELIVERED at Kisumu this 29th day of May, 2026. A. MABEYA, FCI Arb JUDGE Page 6 of 6