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Court of AppealDismissedCivil Appeal 126 of 2018· [2022] KECA 368 (KLR)

Benson Mutira Jiji v Gateway Insurance Co. Ltd

Court of Appeal
11 February 2022
3,165 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that accident victims suing insurers must use the law's demand procedure or carry the full burden of proving valid insurance.

What this practically means

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Executive summary

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This unanimous second appeal concerned a declaratory judgment sought against Gateway Insurance Co. Ltd under the Insurance (Motor Vehicles Third Party Risks) Act (Cap. 405). The appellant, a fare-paying passenger injured in a February 2011 accident, had obtained judgment of Kshs 296,900 plus costs against the driver and owner of the offending vehicle in the Vihiga Senior Resident Magistrate's Court, and successfully obtained a declaratory decree against the insurer before Chief Magistrate's Court at Eldoret on the strength of a photocopy of a certificate of insurance found in the police investigation file. The High Court (Omondi J) allowed the insurer's first appeal, holding the trial magistrate had reversed the burden of proof by requiring the insurer to disprove issuance of the certificate. The Court of Appeal (Tuiyott, Kiage and Ngugi JJA, judgment by Tuiyott JA) dismissed the second appeal. It held that section 12(1) of the Act offers a claimant a simple mechanism to demand insurance particulars from the vehicle owner; had the appellant invoked it, the evidential burden would have shifted to the insurer only in defined circumstances. By bypassing that avenue, the appellant retained the heavy burden of proving the certificate was validly issued by the respondent, a burden he failed to discharge, relying only on a photocopy never seen in original form. The High Court's holding was endorsed and the appeal dismissed with costs.

Key legal issues

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01

Allocation of the burden of proof in a declaratory suit against an insurer where the insurer denies issuing the policy

Holding

The burden of proving that the certificate of insurance was properly and validly issued by the respondent rested on the appellant; the evidential burden never shifted to the respondent.

Reasoning

Section 12(1) of the Act provides a mechanism by which a claimant may demand from the vehicle owner whether he was insured and the particulars of the policy. Had the appellant used it, the respondent would have assumed the evidential burden of proving forgery only if the owner failed to respond or insisted the respondent insured him. The appellant bypassed this avenue, relying only on a photocopy of a certificate in the police investigation file, seen by neither the testifying officer nor the court. The demand under section 12(1) is not onerous.

p. 6
02

Scope of a second appeal

Holding

The Court on second appeal confines itself to matters of law, absent consideration of irrelevant matters, failure to consider relevant matters, or perversity.

Reasoning

Relying on Kenya Breweries Limited v Godfrey Odoyo, the court reiterated that it must resist the temptation of delving into matters of fact on a second appeal. The substantial issue identified - who bore the burden of proving insurance and how it was discharged - was a question of law, properly within the Court's remit.

p. 3
03

Compliance with section 10(2) of the Act as a precondition to an insurer's liability

Holding

The insurer's duty under section 10(1) arises only upon compliance with section 10(2), including notice of the bringing of proceedings.

Reasoning

The court set out section 10(1) and the provisos in section 10(2), noting the appellant served notice by registered mail on 13th June 2011 with no evidence of response. The respondent's denial of cover was made before the primary claim hearing commenced and before the declaratory suit was filed, which bore on how the appellant should have discharged his burden.

p. 3

Legal principles established

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  • On a second appeal, the Court of Appeal confines itself to matters of law unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • Where a claimant in a declaratory suit under the Insurance (Motor Vehicles Third Party Risks) Act fails to invoke section 12(1) to demand insurance particulars from the vehicle owner, the burden of proving the certificate of insurance was validly issued by the insurer remains on the claimant and the evidential burden does not shift to the insurer.

Court orders

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  1. 1.Appeal dismissed with costs

Authorities

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Legislation

  • Insurance (Motor Vehicles Third Party Risks) Actsection 10(1)
  • Insurance (Motor Vehicles Third Party Risks) Actsection 10(2)
  • Insurance (Motor Vehicles Third Party Risks) Actsection 12(1)
  • Insurance (Motor Vehicles Third Party Risks) Actsection 5
  • Insurance (Motor Vehicles Third Party Risks) Actsection 7
  • Insurance Act, 1984

Cases cited (3)

  • The New Great Insurance Company of India Ltd vs Lilian Evelyn Cross & Another
    (1966) EA 90

    Elements a claimant must prove: a valid policy in force issued by the respondent, and notice under section 10 of the Act (cited by appellant's counsel)

  • Raila Amolo Odinga & another v Independent Electoral and Boundaries Commission & 2 others
    [2017] eKLR (Presidential Election Petition No. 1 of 2017)

    Legal burden is constant and rests on whoever alleges; evidential burden shifts (cited by appellant's counsel)

  • Kenya Breweries Limited v Godfrey Odoyo
    [2010] eKLR (Civil Appeal No. 127 of 2007)

    Duty of the Court on second appeal: confined to matters of law

On appeal from
High Court of Kenya at Eldoret
Eldoret High Court Civil Appeal No. 59 of 2014
Jurisdiction invoked
Second appeal to the Court of Appeal under the applicable appellate framework; the judgment invokes its circumscribed second-appeal duty confined to matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Benson Mutira Jiji v Gateway Insurance Co. Ltd", Case Analysis (2022). Civil Appeal 126 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/368/eng@2022-02-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.