https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7079

Gathura v Britam General Insurance Company Ltd (Civil Appeal E972 of 2024) [2026] KEHC 7079 (KLR) (Civ) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7079 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E972 of 2024 AN Ongeri, J May 22, 2026 Between Valentina Waithira Gathura Appellant and Britam General Insurance Company Limited Respondent (Being an appeal from the judgment of Hon. D. O. MBEJA (PM) in Milimani CMCC No. E787 of 2021 delivered on 30/7/2024) Judgment 1.The appellant in this appeal Valentina Waithira Gathura filed Milimani CMCC No. E787 of 2021 against the respondent, Britam General Insurance Company Ltd. 2.The appellant was seeking the following declaratory orders;i.That the respondent has a statutory obligation to satisfy the decretal sum awarded in Milimani CMCC no. 1366 of 2015.ii.That the respondent pays the appellant the sum of khs.1,200,000 and special damages for kshs.s144,500/= together with costs and interest which was awarded in Milimani CMCC No. 1366 of 2016. 3.The appellant’s case in summary was the respondent had injured motor vehicle registration no. KWE 088 vide a policy number which was not disclosed. 4.That the said motor vehicle veered of the road and violently crushed the appellant on 24/7/2013. 5.The respondent denied having insured motor vehicle registration no. KWE 088. 6.The trial court held that the respondent was not notified of the accident and further no prima facie case was established against the respondent. 7.The trial court dismissed the appellant’s case against the respondent. 8.The appellant has appealed against the said judgment on the following grounds;i.That the learned magistrate erred in fact and in law and misdirected himself in holding that the appellant had failed a prima facie case and prove her case against the respondent on a balance of probabilities in doing so, the learned magistrate reached a wrong conclusion.ii.That the learned magistrate erred in fact and in law in failing to consider, appreciate and find that the appellant had established the threshold for grant of the prayers sought in the Plaint dated the 21st day of December 2020 in view of the provisions of Section 10(1) and (2) of the Insurance (Motor Vehicle Third Party Risks) Act Chapter 405 Laws of Kenya ("Insurance Act").iii.That the learned magistrate erred in fact and in law in failing to consider, appreciate and find that as at the time judgment was rendered against Real Insurance Company (Real Insurance") in Chief Magistrate's Court at Nairobi Civil Suit No. 1366 of 2016, the respondent had taken over Real Insurance and was in effective control of the company. In so doing, the learned magistrate failed to consider and appreciate that the legal effect of the respondent's takeover of Real Insurance was that the respondent assumed all obligations and liabilities that accrued as against Real Insurance prior to the takeover.iv.That the learned magistrate erred in fact and in law in failing to consider and appreciate the effect of the evidence tendered by the respondent's witness of the respondent of having taken over Real Insurance. In doing so the learned magistrate reached a wrong conclusion.v.That the learned magistrate erred in fact and in law and misdirected himself in failing to consider, appreciate and find that the respondent was statutorily bound to satisfy the decretal award issued against Real Insurance in Chief Magistrate's Court at Nairobi Civil Suit No. 1366 of 2016 by virtue its takeover in accordance with Section 10(1) of the Insurance Act.vi.That the learned magistrate erred in fact and in law in failing to consider and appreciate that the respondent did not dispute the existence of a valid insurance policy issued by Real Insurance and which policy was considered in Chief Magistrate's Court at Nairobi Civil Suit No. 1366 of 2016. The learned magistrate failed to consider and appreciate that the liability under the insurance policy was determined in Chief Magistrate's Court at Nairobi Civil Suit No. 1366 of 2016 and in so doing, arrived at a wrong conclusion.vii.That the learned magistrate erred in fact and in law in failing to consider that the appellant could not institute declaratory suit proceedings as against Real Insurance with respect to Chief Magistrate's Court at Nairobi Civil Suit No. 1366 of 2016 on account of the takeover by the respondent. In doing so the learned magistrate failed to consider and appreciate that Real Insurance was not a going concern and could not be joined as a party to the suit.viii.That the learned magistrate erred in fact and in law and misdirected himself in failing to consider and appreciate that the respondent was duly send with a statutory notice prior to commencement of Chief Magistrate's Court at Nairobi Civil Suit No. 1366 of 2016 in accordance with the law and within the period prescribed under Section 10(1) of the Insurance Act. In so doing, the learned magistrate reached a wrong conclusion.ix.That the learned magistrate erred in fact and in law and misdirected himself in failing to consider and appreciate that the appellant served the respondent with a notice of entry of judgement in Chief Magistrate's Court at Nairobi Civil Suit No. 1366 of 2016, in accordance with the provisions of Section 10(2) of the Insurance Act in so doing, the learned magistrate failed to consider and appreciatex.That upon receipt the notice of entry of judgement, the respondent failed to deny liability as required under Section 12(1A) of the Insurance Act and as such it was bound to satisfy the decretal award,xi.That the learned magistrate erred in fact and in law in failing to consider and appreciate that the respondent had failed to commence proceedings to obtain a declaration stating that it was not liable to settle the decretal award issued in Chief Magistrate's Court at Nairobi Civil Suit No. 1366 of 2016. In so doing, the learned magistrate failed to consider and appreciate that the respondent failed to exercise its right to avoid the policy issued by Real Insurance in accordance with the provisions of Section 10(4) of the Insurance Actxii.That the learned magistrate erred in fact and in law and misdirected himself in failing to consider, appreciate and find that the respondent is estopped from denying liability under the provisions of Section 10(1) of the Insurance Act since it failed to obtain a declaration such denial within the period prescribed under Section 10(4) of the Insurance Act.xiii.That the learned magistrate erred in fact and in law in challenging the legality of the finding in the primary suit being Chief Magistrate's Court at Nairobi Civil Suit No. 1366 of 2016 despite the suit before him being a declaratory suit and not an appeal. In so doing, the learned magistrate arrived at a wrong decision.xiv.That the learned magistrate erred in law in failing to consider the appellant's written submissions and list of authorities. In so doing, the learned magistrate arrived at a wrong decision.xv.That the learned magistrate erred in fact and in law in considering matters, which he ought to have considered and failing to consider relevant matters in arriving at his decision.xvi.That the learned magistrate erred in fact and in law in arriving at conclusions that were inconsistent, detached and at complete variance to the evidence that was before him for consideration. In so doing, the learned magistrate arrived at a wrong conclusion. 9.The parties filed written submissions as follows; The Appellant has submitted that the appeal arises from a judgment and decree delivered on July 30, 2024, in Chief Magistrate's Court Civil Suit No. E787 of 2021. 10.In response to the Respondent's move to strike out the matter, the Appellant filed Grounds of Opposition on September 16, 2025, asserting that the application lacks merit under the governing procedural framework. 11.The primary issue for determination is whether the Respondent’s application is procedurally justified under Section 79B of the Civil Procedure Act and Order 42 Rule 12 of the Civil Procedure Rules. 12.The Appellant contends that pursuant to Order 42 Rule 12, the statutory timeline for serving a Memorandum of Appeal is strictly dependent upon the High Court Registrar first notifying the appellant that the appeal has been perused and admitted by a judge under Section 79B. 13.To ground this argument, the Appellant details the chronological history of the case, starting with their immediate request for certified copies of the proceedings and judgment on July 31, 2024, followed by the timely filing of the Memorandum of Appeal on August 26, 2024, in compliance with the 30-day window under Section 79G of the Civil Procedure Act. 14.After sending a follow-up request for the trial court records in April 2025, the matter came up for directions on June 24, 2025, before Principal Magistrate Eric Otieno Wambo, who directed the Appellant to file the Record of Appeal and written submissions before August 19, 2025. 15.In strict compliance with these directions, the Appellant served the Respondent with a mention notice on July 25, 2025, and subsequently served the Record of Appeal on August 7, 2025. 16.Consequently, the Appellant submits that the Respondent’s application is entirely premature because the Deputy Registrar has never served the statutory admission notice contemplated by Order 42 Rule 12. 17.Without this trigger event, the strict seven-day service timeline was never activated. 18.The Appellant supports this position by citing established jurisprudence, including Bernard Onyonka v Nation Media Group and Pinpoint Solutions Limited & another v Lucy Waithegeni Wanderi, where the High Court dismissed similar strike-out applications on the basis that an appellant cannot be penalized for non-service when the Registrar has failed to issue the requisite Section 79B admission notice. 19.Furthermore, the Appellant argues that the Respondent has failed to demonstrate any prejudice or injustice suffered as a result of receiving the documents on August 7, 2025, and emphasizes that the matter should proceed to a hearing on its merits. 20.Finally, invoking Article 159 of the Constitution of Kenya and Section 3A of the Civil Procedure Act, the Appellant reminds the court of its duty to safeguard access to justice and to administer justice without undue regard to procedural technicalities. 21.For these reasons, the Appellant requests this Court to dismiss the Respondent's application with costs. 22.The Respondent submitted that it seeks stricking out the Appeal due to the delay in service. 23.Although the Appellant filed the Appeal on August 26, 2024, the Memorandum of Appeal was not served on the Respondent until August 7, 2025, nearly a full year later. 24.The Respondent contends that this delay directly defeats the overriding objective of the Civil Procedure Rules, which dictates the just, expeditious, proportionate, and affordable resolution of civil disputes. 25.Furthermore, the Respondent asserts that failing to serve the Appeal in a timely manner caused severe prejudice, as the Respondent had reasonably deemed the matter settled following the trial court's judgment on July 30, 2024. 26.Ambushing a litigant with an Appeal a year after judgment is characterized as an abuse of the court process. 27.Second, on the merits of the Appeal, the Respondent argues that the trial court was entirely justified in dismissing the Appellant's underlying suit. 28.The main issue revolves around whether the Appellant proved that motor vehicle registration number KWE 088 was insured by Britam General Insurance Company Limited or its alleged predecessor, Real Insurance Company Limited. 29.Under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act and established case law, a plaintiff in a declaratory suit bears the absolute burden of proving the existence of a valid insurance policy at the time of the accident. 30.The Respondent explicitly denied issuing any such policy in its statement of defence. 31.The Respondent highlights that the Appellant failed to produce a Police Abstract or any other evidentiary documentation linking the vehicle to the insurance companies. 32.Citing judicial precedent, the Respondent notes that while an injured victim is not expected to produce an insurance certificate, a Police Abstract is standard and sufficient evidence because it captures critical insurance details from the certificate affixed to the vehicle. 33.The Appellant provided no Police Abstract and offered no explanation for its absence, the allegation of an existing insurance cover remained entirely unsupported. 34.Pursuant to the Evidence Act, the legal burden of proof rests firmly on the party asserting a fact and does not shift to the defendant to prove a negative. 35.Since the Appellant failed to establish the basic, essential pre-conditions of liability, the Respondent maintains that the trial court did not misdirect itself. 36.Consequently, the Respondent requests that the High Court dismiss the Appeal with costs. 37.The issues for determination in this appeal are as follows;i.Whether the Respondent’s application to strike out the Appeal is merited.ii.Whether the Appeal has any merit on the grounds that the trial court erred in dismissing the declaratory suit against the Respondent. 38.The Court has carefully considered the Respondent’s application to strike out the Appeal for delay in service, the Appellant’s response, the grounds of appeal, the record of appeal, and the submissions by both parties. 39.The primary issue raised by the Respondent is procedural, seeking to have the appeal dismissed because the Memorandum of Appeal was allegedly served nearly a year after it was filed. 40.On the procedural application to strike out the appeal, this Court finds that the application lacks merit and is hereby dismissed. Under Order 42 Rule 12 of the Civil Procedure Rules, the duty to serve the Memorandum of Appeal is triggered only after the High Court Registrar notifies the Appellant that the appeal has been admitted under Section 79B of the Civil Procedure Act. 41.As held in the persuasive authority of Bernard Onyonka v Nation Media Group (supra), the timelines for service do not begin to run until the Registrar has issued the statutory notice of admission, which had not occurred in this case. 42.The Appellant cannot be penalized for a delay in service that is attributable to the court registry’s failure to issue the requisite notice. 43.Furthermore, the Respondent has failed to demonstrate any specific prejudice suffered as a result of the timing of the service, and this Court is guided by the principle of Article 159 of the Constitution that justice shall be administered without undue regard to procedural technicalities. 44.On the merits of the Appeal, the trial court correctly dismissed the Appellant’s declaratory suit because the Appellant failed to discharge the burden of proof required under Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405. 45.The primary issue in a declaratory suit against an insurer is whether the claimant has proved the existence of a valid insurance policy covering the subject motor vehicle at the time of the accident. 46.The Appellant alleged that the motor vehicle was insured by Real Insurance Company, which was later taken over by the Respondent. 47.However, the Appellant failed to tender the police abstract, the certificate of insurance, or any other documentary evidence linking the vehicle to the alleged policy with Real Insurance or the Respondent. 48.A claimant seeking declaratory orders under Section 10 must prove that the insurer had effected a policy of insurance as required under Section 5 of Cap 405. 49.Where the insurer denies issuance of a policy, as the Respondent did in its statement of defence, the legal burden of proof rests on the claimant under Section 107 of the Evidence Act to prove the existence of that policy. 50.The Appellant’s mere assertion that the vehicle was insured, without producing the policy document or a police abstract containing the policy number, was insufficient to establish a prima facie case. 51.Consequently, the trial magistrate was correct in finding that no nexus was established between the accident vehicle and the Respondent. 52.On the issue of the takeover of Real Insurance by the Respondent, the Appellant argues that the Respondent assumed all liabilities of Real Insurance. 53.However, even assuming the takeover occurred, the Appellant still bore the initial burden of proving that Real Insurance had actually issued a valid policy covering motor vehicle KWE 088 on the material date of 24th July 2013. 54.The Appellant failed to adduce any primary evidence of that foundational fact. 55.A declaratory suit must be proved on a balance of probabilities, and the claimant must establish the key preconditions of liability under the Act. 56.Without proof of the original policy, the question of the Respondent’s successor liability does not even arise. The trial court’s findings on this point were sound and based on the evidence presented. 57.Ultimately, the Appeal is dismissed for lack of merit. The judgment delivered on 30th July 2024 in Milimani CMCC No. E787 of 2021 is hereby upheld. 58.The Respondent shall have the costs of this Appeal. 59.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF MAY, 2026.A. N. ONGERIJUDGEIn the presence of:Miss Onyango for the ApplicantMr Njuguna for the RespondentChrispine – Court Assistant