https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7639

Macharia v Directline Assurance Company Ltd (Civil Appeal E007 of 2025) [2026] KEHC 7639 (KLR) (Civ) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7639 (KLR) Republic of Kenya In the High Court at Nyandarua Civil Civil Appeal E007 of 2025 KW Kiarie, J June 4, 2026 Between Simon Waweru Macharia Appellant and Directline Assurance Company Limited Respondent (Being an appeal from the judgment and decree in the Engineer Senior Principal Magistrate’s Court, SPMCC No. E041 of 2023 by Hon. H. Adika – Senior Principal Magistrate.) Judgment 1.Simon Waweru Macharia, the appellant, was the plaintiff in the Engineer Senior Principal Magistrate’s SPMCC No. E041 of 2023. He had sued for a declaration that the respondent is liable to satisfy the judgment in Senior Principal Magistrate’s SPMCC No. E072 of 2021, at Engineer. The learned dismissed the claim. 2.The appellant was dissatisfied and filed this appeal through the firm of Njau Ngige & Company Advocates. He raised the following grounds of appeal:a.The learned magistrate erred in law and in fact by failing to find that the issue of material damages was a matter to be proved through evidence, and he therefore made a wrong decision.b.The learned magistrate erred in law and in fact by failing to take cognizance of documentary evidence presented by both the appellant and the respondent, and he therefore made a wrong decision.c.The learned magistrate erred in law and in fact by failing to consider appellant's submissions and the authority relied thereon, and he therefore made a wrong decision. 3.The respondent opposed the appeal through Cootow & Associates Advocates. It was contended that the appeal lacked merit. 4.This Court is the first appellate court. I recognize my duty to assess all the evidence on record, considering that I did not have the advantage of observing the witnesses testify and noting their demeanour. I will be guided by the decision in the case of Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123, in which it was held that the first appellate court must reconsider and evaluate the evidence presented before the trial court, assess it, and draw its conclusions in the matter. 5.In the trial court, the appellant contended that he had an insurance policy No. 03145098 with the respondent company. Earlier, the appellant had sued the insured in the Senior Principal Magistrate’s SPMCC No. E072 of 2021 for damages and was successful. This is the judgment he was seeking to enforce in the Engineer Senior Principal Magistrate’s SPMCC No. E041 of 2023, which is the subject of this appeal. 6.The learned trial magistrate, in dismissing the declaratory suit, argued that Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act does not apply. The section provides: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. [Emphasis added] 7.In order for an insurer to avoid satisfying the obligation under the Act, there must be a clear demonstration that there was compliance with Section 10 (4) of the Insurance (Motor Vehicle Third Party Risks) Act. It provides: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. 8.The respondent was required to demonstrate that they had obtained a declaration before the commencement of the action in which a judgment has been obtained or within three months of commencement of such proceedings. Further, the insurer must establish that:a.before or within fourteen days after the commencement of that action, they have given notice thereof to the person who is the plaintiff in the said proceedings,b.specifying the non-disclosure or false representation on which they propose to rely. 9.The respondent did not plead nor prove the compliance with these requirements in the trial. The judgment by the learned trial magistrate was erroneous. The same is set aside and substituted with a declaration that the respondent is liable to satisfy the judgment in Senior Principal Magistrate’s SPMCC No. E072 of 2021, together with costs. 10.This appeal, therefore, is allowed with costs to the appellant. DELIVERED AND SIGNED AT NYANDARUA, THIS 4TH DAY OF JUNE 2026KIARIE WAWERU KIARIEJUDGE