https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6710

Sanlam General Insurance Ltd v Kabau & another (Suing as the Legal Representative and the Administrator of the Estate of the Late Jonah King’ori) (Civil Appeal E034 of 2025) [2026] KEHC 6710 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6710 (KLR) Republic of Kenya In the High Court at Nyeri Civil Appeal E034 of 2025 MA Odero, J May 15, 2026 Between Sanlam General Insurance Limited Appellant and Alice Kirigu Kabau 1st Respondent Paul Nduia Mairo 2nd Respondent Suing as the Legal Representative and the Administrator of the Estate of the Late Jonah King’ori Judgment 1.The Appellant Sanlam General Insurance Limited filed this Memorandum of Appeal dated 18th June 2025 challenging the judgement of the Magistrates Court in Nyeri CMCC No. E105 of 2023. 2.The Respondents Alice Kirigu Kabau And Paul Ndumia Mairo (suing as the Legal representatives and Administrators of the estate of the late Jonah King’ori Mairo) opposed the appeal. 3.The matter was canvassed by way of written submissions. The Appellants filed the written submissions dated 8th December 2025 whilst the Respondents relied upon their submissions dated 26th January 2026. Background 4.The Respondents are the personal representatives of the Deceased Jonah King’ori Mairo. It was alleged that on 19th April 2025 an accident occurred involving a motor vehicle Registration KAM 953H and that as a result of said accident the deceased sustained fatal injuries. 5.The Respondents brought an action against one Francis Mathinji Gathirwa the driver of the vehicle whose vehicle they claim was at the material time insured by the Appellants vide Policy Number 072/070/1/231661/2014/15. In that civil suit CMCC No. 138 of 2016 the court entered judgment in favour of the Respondents for a principal sum of Kshs. 2,088,725/= plus costs and interest. 6.The Respondents averred that by virtue of Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405, Laws of Kenya, the Appellants are liable to pay the plaintiffs the amount awarded by the lower court. That despite demand having been issued to the Appellants no payment was forthcoming. 7.The Respondents then filed in the Magistrates Court Civil Suit No. E105 of 2023 seeking the following orders;-“(a)A declaration that the Defendant is liable under the provisions of Cap 405, to satisfy the decree in CMCC No. 138 of 2016.(b)Costs of the suit.(c)Interest on (a) and (b) above at such rate and for such period as this Honourable Court may deem fit.” 8.The Appellant filed the statement of Defence dated 20th September 2023 and asserted that it was not the insurer of the said vehicle at the time of the accident. The Appellant also stated that they had not been served with a statutory notice as required under Section 10 of the Act. Finally the Appellants denied that they had taken over the liabilities of Gateway Insurance Company Limited. 9.The matter was duly heard in the Lower Court and vide the judgment delivered on 26th May 2025, Hon. Anastacia Ndungu, Resident Magistrate allowed the plaintiffs claim and issued a declaration that the Appellants were liable under the Insurance Act to satisfy the decree in CMCC No. 138 of 2016. 10.Being aggrieved by this decision the Appellant filed this present Memorandum of Appeal which is premised upon the following grounds;-(1)That the learned trial magistrate erred in law and in fact apportioning liability and awarding the entire primary suit decretal sum against the appellant contrary to the evidence adduced and without proper legal basis.(2)That the trial court erred in law and fact by failing to consider the appellant’s submission and authorities arriving at an erroneous decision(3)That the learned trial magistrate erred in law and in fact by failing to consider that the defendants in the primary suit were strangers to the Appellant company and are not entitled to settle the liabilities of Gateway Insurance company limited as it did not take over the liabilities of the company.(4)The trial court erred in law and fact by failing to consider that no statutory notices were issued to the Appellant’s company as required thereby rendering the claim against the Appellant procedurally defective and fatally flawed.(5)That the learned trial magistrate’s judgement was wholly not supported in law by evidence tendered in court by the parties. Analysis And Determination 11.I have considered the appeal before this court, the Record of appeal as well as the written submissions filed by both parties. 12.This is a first appeal and in this regard I take cognizance of the holding in Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) in which the Court of Appeal stated as follows:-This being a first appeal it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal is are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V Brown [1970] E.A.LAs we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters -vs- Sunday Post Ltd [1958] EA 424. In its own words:-“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide……..” 13.The main issue for determination is whether the Appellants had a legal obligation to pay the decretal sum as was declared by the trial court in Nyeri CMCC No. E105 of 2023. 14.Section 10 of Cap 405 provides 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.” 15.A close reading of Section 10 of the Act shows that there exists a four-fold test in order for liability to accrue as against the insurer. These are;-(i)The motor vehicle in question was insured by the said insurer.(ii)The Plaintiff must have a judgement in their favour against the insured.(iii)A statutory notice must have been issued to the insurer at least 30 days before the filing of the suit in which judgment has been obtained.(iv)The deceased was a person covered by the insurance policy. 16.The Respondents alleged during the trial that the motor vehicle Registration KAM 953 H was covered by the Appellant vide policy Number 072/070/1/23/661 2014/15. 17.The policy number was recorded on the police abstract issued on 19th May 2015. The abstract indicates that the policy was issued by Gateway Insurance Co. Ltd and also indicates that the policy covered the period 24th August 2014 to 13th May 2015. The accident in question occurred on 19th April 2015 which was during the pendency of the said policy. 18.The insurer therefore has a statutory obligation to pay by virtue of section 10(1) of the Act. This obligation may only be avoided in the circumstances provided by Section 10(4) which provides that“(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.” 19.The Respondents in this matter did obtain declaratory orders from the Lower Court. The Statutory notice was issued to the Appellants vide the notice dated 26th August 2022 (see Page 40 of the record of Appeal.) 20.The Appellants claimed that they did not take over the liabilities of Gateway Insurance Company Ltd but as pointed out by the trial court he who alleges must prove. The appellant did not tender any evidence to prove this claim. 21.I find that the Respondent did satisfy the four-fold test. The Appellants obligation to pay for injuries sustained by a third party cannot in the circumstances be disputed. 22.Finally I find no merit in this appeal. The same is dismissed in its entirety. Costs will be met by the Appellant. DATED IN NYERI THIS 15TH DAY OF MAY 2026.……………………….MAUREEN A. ODEROJUDGE