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MagistrateDismissedBungoma CMCC Civil Suit arising from Bungoma CMCC CC No. E300 of 2023· [2026] KEMC 624 (KLR)

Masokho v Africa Merchant Assurance Company Limited (Civil Case E134 of 2025) [2026] KEMC 624 (KLR)

Chief Magistrate's Court at Bungoma
1 April 2026
1,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to force an insurer to pay an accident decree because the insurance policy only started months after the crash.

What this practically means

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Executive summary

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The Plaintiff, a motorcyclist injured in a road traffic accident with motor vehicle KAN 267 J on 27th June 2022 along the Bungoma–Sang'alo road, sued the insurer seeking a declaration that it was bound to satisfy a decree of Kshs. 752,840/= plus costs and interest obtained against the insured vehicle's owner in Bungoma CMCC No. E300 of 2023. He relied on section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, asserting the vehicle was covered under policy AM30701006615200905 (TPO). The Defendant, by an amended defence, denied insuring the vehicle at the material time and alleged want of notice of the primary suit, but called no witnesses; the court accordingly treated its defence as mere allegations, applying Kenya Power & Lighting Co Ltd v Rassul NzembeMwadzaya and Edward Muriga v Nathaniel D. Schulter. The sole issue was whether the insurer should satisfy the primary suit's decree. The primary suit's file showed the certificate of insurance issued by the insurer ran from 07th January 2023 to 06th December 2023, long after the accident. Following The Great Insurance Company of India Ltd v Lilian Everlyn Cross and Another, the court held that section 10 liability attaches only where the liability is covered by a policy in force, that insurance contracts are not retrospective, and that a decree holder cannot force an insurer to cover past risks. Significantly, the court disclosed that it had on 31st March 2026 delivered a contrary virtual judgment based on an illegible certificate, and that it had reviewed that judgment suo motu under section 99 of the Civil Procedure Act upon noticing the error, apologising to the parties. The suit was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the insurer should satisfy the decretal sum in the primary suit

Holding

The insurer is not liable because the policy (valid from 07th January 2023 to 06th December 2023) did not cover the accident date of 27th June 2022; the duty under section 10 attaches only to liabilities covered during the pendency of the policy

Reasoning

The court found from the certificate of insurance that the policy issued by the insurer ran from 07th January 2023, while the accident occurred on 27th June 2022. Since section 10 of the Insurance (Motor Vehicle Third Party Risks) Act applies only where the liability is covered by the policy in force, and insurance contracts are not retrospective, the insurer could not be compelled to satisfy a decree founded on a pre-policy liability. The Defendant having adduced no evidence, its denial of insurance remained unproven on the pleadings, but the Plaintiff's own documents established the absence of cover at the material time.

p. 4
02

Consequence of the Defendant failing to call witnesses

Holding

The Defendant's Statement of Defence averments were treated as mere allegations and not considered

Reasoning

Relying on Kenya Power & Lighting Co Ltd v Rassul NzembeMwadzaya and the Court of Appeal decision in Edward Muriga v Nathaniel D. Schulter, the court held that unpleaded-by-evidence defence averments remain uncontroverted assertions. However, this did not save the Plaintiff, because the Plaintiff's own exhibit (the certificate of insurance) showed the policy commenced after the accident.

p. 3
03

The court's suo motu review of its earlier judgment

Holding

The court reviewed its own judgment of 31st March 2026 under section 99 of the Civil Procedure Act upon discovering it had been based on an illegible certificate of insurance

Reasoning

The earlier virtual judgment had proceeded on an illegible certificate apparently showing the policy commenced on 07th January 2022. On uploading the judgment to the CTS platform, the court noticed the clear certificate showed 07th January 2023, and invoked section 99 of the Civil Procedure Act (clerical/arithmetical mistakes) to review the judgment suo motu, apologising to the parties for the slip of the pen.

p. 6

Legal principles established

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  • An insurer's statutory duty under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act arises only where the liability attached during the pendency of the insurance contract; insurance contracts are not retrospective and do not cover past risks or liabilities
  • A party who fails to call evidence in support of pleadings leaves those pleadings as mere allegations

Court orders

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  1. 1.The suit is dismissed with costs to the Defendant
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a claim under section 10 of the Insurance (Motor Vehicle 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, "Masokho v Africa Merchant Assurance Company Limited (Civil Case E134 of 2025) [2026] KEMC 624 (KLR)", Case Analysis (2026). Bungoma CMCC Civil Suit arising from Bungoma CMCC CC No. E300 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/624/eng@2026-04-01

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