Kenneth Gitonga (sued As The Legal Representative and Administrator of The Estate of Patrick Josiah Wanyeki Mwangi - Deceased) v Cannon Assurance Ltd
The bottom line
#Kenya's Court of Appeal held an insurer that ignored the required statutory procedure cannot escape paying a road accident judgment, though the award was capped at Kshs. 3 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant could avoid liability by asserting, in the declaratory suit only, that the deceased was an employee excluded from cover under section 5(b)(i) of the Act
No. The statutory scheme requires an insurer wishing to avoid liability to invoke section 10(4) by filing suit before or within three months of the proceedings against the insured and obtaining a declaration. The appellant, though served with statutory notice before the original suit, took no action and could not raise the defence in the declaratory suit.
Section 10(1) obliges an insurer to satisfy judgments on liabilities required to be covered by a policy. The respondent complied with section 10 by serving statutory notice on 24th June 2014, before the suit filed on 24th July 2014. Section 10(4) sets out elaborate steps for an insurer to escape liability - an action commenced before or within three months after the commencement of proceedings, obtaining a declaration of entitlement to avoid. The appellant took no action despite the notice, so the defence had no legs and both lower courts rightly rejected it.
Whether the award of Kshs.3,581,700 in excess of the statutory limit of Kshs.3,000,000 per claim by one person under section 5(b)(iv) was lawful
No. The magistrate exceeded the statutory cap and the High Court erred in failing to correct that error; the award was reduced to Kshs.3,000,000.
Section 5(b)(iv) of the Act provides that a policy need not cover liability of any sum in excess of three million shillings arising out of a claim by one person. The cap, introduced by amendment with effect from 5th January 2007, applied to this accident of 2014. The magistrate awarded Kshs.3,581,700, exceeding the limit, and the High Court erred in not correcting that error. The Court of Appeal set aside the award and substituted Kshs.3,000,000, this being the only extent to which the appeal succeeded.
Legal principles established
#- An insurer that wishes to avoid liability under section 10 must file suit either before or within three months of the commencement of the proceedings against the insured and obtain a declaration that it is entitled to avoid the policy; a defence raised for the first time in a declaratory suit does not avail it.
- Where the statutory notice requirements of section 10(2)(a) are satisfied, the insurer is duty-bound to satisfy the judgment notwithstanding an asserted policy defence, unless it has complied with section 10(4).
- On a second appeal the Court of Appeal confines itself to matters of law only.
Court orders
#- 1.That part of the appeal concerning the appellant's liability to satisfy the judgment is dismissed
- 2.The total sum awarded of Kshs.3,581,700 is set aside and substituted with a sum of Kshs.3,000,000
- 3.The appellant, having partially succeeded, is awarded ¼ costs of this appeal
- On appeal from
- High Court of Kenya at Nyeri
- Appeal against Chief Magistrate's Court at Karatina Case No. 8 of 2017
- Jurisdiction invoked
- Second appeal to the Court of Appeal under its appellate jurisdiction over the High Court (matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenneth Gitonga (sued As The Legal Representative and Administrator of The Estate of Patrick Josiah Wanyeki Mwangi - Deceased) v Cannon Assurance Ltd", Case Analysis (2026). Second Appeal from Chief Magistrate's Court at Karatina Case No. 8 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/93/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.