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High CourtDismissedNyeri CMCC No.18 of 2013 (Appeal and Cross Appeal)

In re Declaratory Suit arising from Nyeri CMCC No.360/2011 (Appellant insurer v Respondent)

Chief Magistrate's Court (first appeal from magistrates' court), Nyeri
17 December 2020
AMA. Mshila
2,255 words in judgment
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The bottom line

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Insurers cannot dismiss claims by merely alleging a defendant is deceased; sufficient evidence of death is required to void a suit.

What this practically means

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Executive summary

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This first appeal, decided by Hon. A. Mshila, Judge, at Nyeri, arose from a declaratory suit (Nyeri CMCC No.18 of 2013) in which the respondent sought to enforce against the appellant insurer a judgment obtained in Nyeri CMCC No.360/2011, a road traffic accident claim against the insurer's insured. The appellant appealed against the trial magistrate's (Hon. Wilbroda Juma) decision, contending that the primary suit had been filed against, and judgment entered against, a deceased person, rendering the proceedings a nullity and leaving no insured against whom judgment could be given under Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. The respondent filed a Notice of Objection (res judicata, no appeal against the primary judgment) and a Cross-Appeal on the quantum discrepancy between the decree and the declaratory suit award. The court framed two issues: proof of death of the defendant, and res judicata. On the first, it found that appearance had been entered within a year of the alleged death so the suit had not abated, that no death certificate or sufficient evidence of death was produced in the primary proceedings, and that the insurer, having been enjoined, failed to enjoin the deceased's legal representatives as directed and filed no appeal against the primary judgment or the ruling refusing to set it aside. The judgment therefore remained unchallenged and enforceable. On res judicata, the court found no former suit between the same parties on the same issue and overruled the objection. The cross-appeal was treated as abandoned for lack of submissions. The appeal was dismissed in its entirety, the respondent was at liberty to execute the decree, and each party was ordered to bear their own costs.

Key legal issues

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01

Effect of alleged death of the insured defendant on the primary suit and the declaratory suit

Holding

There was no proof of death; the proceedings in the primary suit were properly conducted and the judgment remains enforceable against the insurer

Reasoning

The court found that appearance was entered within a year of the alleged death so the suit had not abated; no death certificate or sufficient evidence of death was produced in the primary proceedings; the insurer, having been enjoined, failed to enjoin the legal representatives as directed, and filed no appeal against the primary judgment or the ruling refusing to set it aside.

p. 3
02

Res judicata objection to the appeal

Holding

Res judicata inapplicable; no former suit between the same parties on the same issue was shown

Reasoning

Section 7 of the Civil Procedure Act governs res judicata, but the court found no mention of a former primary suit with the same parties nor any determination by a competent court on the same issue; the appellant was within its rights to appeal the declaratory suit decision.

p. 3

Legal principles established

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  • A party alleging a fact (here, death of a defendant) bears the burden of tendering sufficient evidence in proof of it
  • On a first appeal the court has power to re-evaluate the evidence and reach its own findings

Court orders

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  1. 1.Finding that there was no proof of death of the defendant in Nyeri CMCC No.360/2011 and the alleged death is of no effect on the declaratory suit
  2. 2.Appellant at liberty to file an appeal against the decision in Nyeri CMCC No.360/2011
  3. 3.Appeal dismissed in its entirety
  4. 4.Respondent at liberty to request release of the decretal sums in execution of the decree in Nyeri CMCC No.18/2013
  5. 5.Doctrine of res judicata found inapplicable; Notice of Objection overruled
  6. 6.Cross-appeal marked as abandoned
  7. 7.Each party to bear their own costs

Authorities

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Legislation

  • Insurance (Motor Vehicles Third Party Risks) ActSection 10
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 24 Rule 10

Cases cited (6)

  • Directline Assurance Co. Ltd vs Caroline Nduku Muia
    [2019]eKLR

    Suits against deceased persons are a nullity (appellant's authority)

  • Joseph Njenga Njoroge vs Kabiri Mbiti
    [1986]eKLR

    Nullity of judgments against deceased persons (appellant's authority)

  • Athman Omar Zuberi vs Manson Asol Apinde
    [2012]eKLR

    Nullity of suits against deceased persons (appellant's authority)

  • Samuel Ogada Yugi vs Yason Oyieke Ogweno & Others
    [2013]

    Nullity of judgments against deceased persons (appellant's authority)

  • MWANASONIK vs KENYA BUS SERVICES LTD (Mombasa) Civil Appeal No. 35 of 1985 (unreported)

    Duty of first appellate court to re-evaluate evidence (Hancox, J.A.)

  • The Independent Electoral Boundaries Commission vs Maina Kiai & 5 others
    Nairobi CA Civil Appeal No.105 of 2017 [2017]eKLR

    Elements of the doctrine of res judicata

On appeal from
Nyeri Chief Magistrate's Court
Nyeri CMCC No.18 of 2013
Jurisdiction invoked
First appeal from the magistrates' court under the Civil Procedure Act (appellate jurisdiction over declaratory suit under the Insurance (Motor Vehicles Third Party Risks) Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Declaratory Suit arising from Nyeri CMCC No.360/2011 (Appellant insurer v Respondent)", Case Analysis (2020). Nyeri CMCC No.18 of 2013 (Appeal and Cross Appeal). Source:

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