General Accident Assurance v Mbijiwe (Suing as the Administrator of the Estate of the Late Lewis Gichunge Mbijiwe & Martin Kiogora Mbijiwe) (Civil Appeal 183 of 2019) [2025] KECA 1856 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that accident victims must serve the required notice directly on the insurer, or the insurer cannot be forced to pay a judgment.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the learned judge erred in law by misconstruing and misapplying section 10(2)(a) of the Act in particular, by holding that service of the statutory notice on the insurer was not mandatory and that failure to serve it was excusable
- 2.whether the learned judge erred in finding that the appellant had actual or constructive notice of the primary suits
Key legal issues
#Whether service of the statutory notice under section 10(2)(a) of Cap 405 is mandatory and a condition precedent to insurer liability
Yes; the requirement is couched in mandatory terms and is a condition precedent. Failure to give notice disentitles the claimant from enforcing judgment against the insurer, and it cannot be excused.
The court held the notice requirement is not a mere technicality but fundamental. Section 10(2)(a) does not prescribe a form, but the notice must be formal and unequivocal, indicating proceedings have been or are about to be instituted. A Third-Party Notice is merely a procedural step between defendants, whereas the statutory notice is substantive, notifying the insurer and affording it an opportunity to participate in the defence. The learned judge erred in holding the failure excusable.
Whether the appellant had actual or constructive notice of the primary suits
No; knowledge of the accident and settlement of other claims arising from the same accident did not amount to notice of the specific proceedings in HCCC Nos. 17 and 101 of 2007.
The central question was whether the insurer had notice of the specific proceedings resulting in the judgment. The insurer only learned of the two High Court suits three years after judgment via demand letters. Constructive notice inferred from a newspaper advertisement (a Third-Party Notice) or from other Embu suits could not satisfy section 10(2)(a), and its absence deprived the insurer of its statutory right to participate in the defence.
Legal principles established
#- The statutory notice under section 10(2)(a) of the Insurance (Motor Vehicles Third Party Risks) Act is a mandatory condition precedent to an insurer's liability; failure to give it disentitles the claimant from enforcing judgment against the insurer.
- A Third-Party Notice under the Civil Procedure Rules cannot be equated with the statutory notice to the insurer under section 10(2)(a); the two serve entirely different purposes.
- A court cannot presume statutory notice to an insurer from circumstantial evidence, a newspaper advertisement, or the insurer's prior knowledge of the accident; failure to prove service is fatal to a declaratory claim.
- The duty to serve the statutory notice always rests with the claimant and does not shift to the insured at any stage.
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the High Court delivered on 13th July 2018 is set aside in its entirety
- 3.The appellant shall have the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Nairobi HCCC No. 65 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Act / Article 164 of the Constitution (not expressly stated in the judgment)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
This statutory requirement is, in our view, couched in mandatory terms and it is a condition precedent to an insurer's liability.
A Third-Party Notice is a procedural step between defendants to determine contribution or indemnity, whereas the statutory notice under the Act is a substantive requirement intended to notify the insurer of proceedings against its insured
Failure to prove that such notice was served is fatal to a declaratory claim and a court cannot presume notice from circumstantial evidence or mere prior knowledge of the accident.
Accordingly, this appeal is allowed, and the judgment of the High Court delivered on 13th July 2018 is set aside in its entirety. The appellant shall have the costs of this appeal.
Issues in the judgment
#The coram lists D. K. Musinga as President of the Court of Appeal, not as Chief Justice; the 'PRESIDENT' designation refers to the President of the Court of Appeal.
The judgment does not state the appeal number or neutral citation of this appeal, nor the name of the respondent in the title.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "General Accident Assurance v Mbijiwe (Suing as the Administrator of the Estate of the Late Lewis Gichunge Mbijiwe & Martin Kiogora Mbijiwe) (Civil Appeal 183 of 2019) [2025] KECA 1856 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1856/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.