Rotich v Madison General Insurance Ltd & 2 others (Civil Case E360 of 2025) [2026] KEMC 218 (KLR)
The bottom line
#A Kenyan court stopped an insurer's decree from being executed against a driver, holding insurers must pay judgments even if they claim policy cancellation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a basis for stay of execution of the small claims decree pending determination of the declaratory suit against the insurer
Yes. The Plaintiff demonstrated a prima facie right under Section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act, notification of the primary suit to the insurer, payment of excess, and risk of irreparable loss if property were sold in execution.
The Defendant admitted the existence of the insurance contract but claimed ignorance of the accident and primary suit, alleging breach of notification conditions. The Plaintiff exhibited a letter received by the Defendant on 3rd April 2025 notifying it of the primary suit, an email from the Defendant requesting payment of Kshs. 7,500.00 excess to acknowledge liability, and evidence of that payment. Section 10(1) gives the insured a definite cause of action against the insurer notwithstanding possible avoidance or cancellation of the policy. Property at risk of execution without protection would cause irreparable loss, following Apollo Ogunda v Africa Merchant Assurance Co. Ltd.
Whether the court could stay execution of a subsisting judgment in favour of the 1st Interested Party
Yes, on the authority of Apollo Ogunda, where execution is stayed pending resolution of who between the insured and insurer should satisfy the judgment; the decree holder, though not privy to the insurance contract, is incidentally affected.
The Interested Parties argued that the court, having become functus officio after judgment, could not injunct execution of its own decree. The court nonetheless held, following Apollo Ogunda v Africa Merchant Assurance Co. Ltd & 4 others, that such an application is not ill-conceived: it raises factual and legal issues on who should satisfy the judgment, best canvassed at the substantive hearing, and stay of execution is appropriate in the interim.
Legal principles established
#- Under Section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act, an insurer must satisfy a judgment against the insured notwithstanding that the insurer may be entitled to avoid or cancel the policy.
- An application shall not be refused merely because it fails to cite the governing law.
Court orders
#- 1.A stay of execution of the decree in Narok SCCC No. E025 of 2025 granted pending hearing and determination of this suit
- 2.Costs to be in the cause
- 3.Case to be heard on priority basis
- Jurisdiction invoked
- Sections 1A & B, 2, 3 & 3A Civil Procedure Act; Order 22 rule 6, 22(1); Order 40 rules 1(a), 4(1) & (2); Order 51 rule 1 Civil Procedure Rules 2010; Section 3 Insurance Act; Section 10(1) Insurance (Motor Vehicles Third Party Risks) Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rotich v Madison General Insurance Ltd & 2 others (Civil Case E360 of 2025) [2026] KEMC 218 (KLR)", Case Analysis (2026). Not stated in judgment (ruling on Notice of Motion dated 15th December 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/218/eng@2026-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.