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MagistratePartially AllowedCivil Case No E161 of 2025· [2026] KEMC 698 (KLR)

Lubisia v Trident Insurance Company Ltd (Civil Case E161 of 2025) [2026] KEMC 698 (KLR)

Magistrates' Court (Bungoma)
16 January 2026
TOT.O. Omono
4,359 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Bungoma court forced an insurer to pay a driver Kshs 1.7 million because it failed to properly repudiate his policy after an accident.

What this practically means

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Executive summary

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The plaintiff, the insured under policy number P/NO.030/070/1/253783 covering motor vehicle KAW 826 G, sued his insurer for a refund of Kshs. 1,805,205/= being the decretal sum, costs and interest he paid to the decree holder in Bungoma CMC CC No. 203 of 2020 arising from an accident on 22 June 2020. The insurer denied the accident, the insured's ownership of the vehicle, the existence of a valid policy, and alleged non-service of the statutory notice and notice of institution of suit. The court framed three issues: existence of a valid insurance contract, the insurer's statutory duty to settle, and quantum. It held that the Certificate of Insurance was prima facie proof of the contract, shifting the evidential burden to the insurer, which led no evidence to dislodge it. On the statutory duty under sections 10(1) and (2) of the Insurance (Motor Vehicle Third Party Risks) Act, the court found the insurer failed to prove the non-service of notices, which in any event was the primary plaintiff's duty to serve, and could have been disproved by producing the primary suit's court file which DW1 had perused - an adverse inference was drawn. Failure to notify the accident was not shown to be connected with the loss, and the insurer never repudiated liability through the statutory route of notice and a declaratory suit. On quantum, applying the rule that special damages must be strictly proved, the receipts proved only part of the pleaded sum. Judgment was entered for the plaintiff against the defendant for a refund, with interest from the date of filing suit, plus costs of the suit. Judgment delivered at Bungoma on 16 January 2026.

Key legal issues

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01

Existence of a valid insurance contract

Holding

A valid insurance contract existed between the parties at the time of the accident

Reasoning

The insured produced a Certificate of Insurance showing the subject vehicle was insured under policy number P/NO.030/070/1/253783 at the time of the accident. The certificate constitutes prima facie proof of the contract, shifting the evidential burden to the insurer. DW1 admitted the insurer had not filed any report disowning the certificate and could not confirm whether it was issued by the insurer. The insurer led no credible evidence to dislodge the prima facie case.

p. 5
02

Statutory duty to settle the decree under section 10

Holding

The insurer had a statutory duty under sections 10(1) and (2) to satisfy the decree in the primary suit and failed to bring itself within the statutory exceptions

Reasoning

Once a valid policy and a covered liability were established, section 10 obliged the insurer to pay. The exceptions (declaration of avoidance, cancellation with certificate surrendered, non-service of notice) must be strictly established by the insurer. The alleged non-service of statutory notices was not proved; the insurer could have produced the primary suit's court file, which DW1 had perused, but chose not to, inviting an adverse inference. Failure by the insured to notify the accident was not shown to be a condition connected to the loss, and the insurer never followed the statutory repudiation procedure of notice and a declaratory suit.

p. 11
03

Quantum of indemnity

Holding

Only Kshs. 1,720,025/= (per the receipts) was strictly proved as special damages; the pleaded Kshs. 1,805,205/= was not

Reasoning

The refund claimed is a liquidated sum in the nature of special damages, which must be both pleaded and strictly proved. The insured produced receipts dated 19 September 2024 (Kshs. 830/=), 4 December 2024 (Kshs. 200,000/=), 16 December 2024 (Kshs. 161,425/=) and 17 December 2024 (Kshs. 1,357,950/=). These proved payment short of the pleaded figure, so the award was confined to the proved amount.

p. 13

Legal principles established

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  • A Certificate of Insurance is prima facie evidence of a contract of insurance, shifting the evidential burden to the insurer to disprove it
  • Under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, an insurer must satisfy a judgment against its insured unless it brings itself within the statutory exceptions, e.g. by obtaining a declaration entitling it to avoid the policy within the prescribed time
  • The duty to serve the statutory notice and notice of institution of suit lies on the plaintiff in the primary suit, not on the insured; and a party alleging non-service must prove it on a balance of probabilities
  • Where a party withholds evidence in its possession, an adverse inference may be drawn against it
  • Special damages must be both specifically pleaded and strictly proved

Court orders

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  1. 1.The Defendant to refund the Plaintiff the sum of Kshs. 1,720,205/=
  2. 2.The amount in (a) above, being a liquidated sum, shall attract interest at court rates from the date of filing this suit until payment in full
  3. 3.The Plaintiff will have the costs of this suit

Authorities

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Legislation

  • Insurance (Motor Vehicle Third Party Risks) ActSections 5(b), 10(1), 10(2), 10(4), 67C(11)
  • Evidence ActSections 107, 108, 112
  • Insurance ActSection 3A(a), (b) and (e)

Cases cited (13)

  • Blue Shield Insurance Company Limited vs Raymond M'riembera
    CA No. 107 of 1997; also cited as Blueshield Insurance Co. Ltd v Raymond Buuri M'rimberia (1998) eKLR
  • Rono v Monarch Insurance Co. Ltd; Livia (Interested Party)
    (Civil Suit E011 of 2023) [2025] KEHC 1987 (KLR)
  • Standard Assurance Co. Ltd v Kenya Bus Services Ltd
    [2014]
  • Jubilee Insurance Co Ltd v Walter Tondo Soita
    [2021]
  • Bernard Mutisya Wambua v Kenya Orient Insurance Company Limited
    [2020]
  • The Great Insurance Company of India Ltd vs Lilian Everlyn Cross and Another
    [1966] E.A 90, 97
  • Karari (suing as Legal Representative of the Estate of Stanley Mwangi Muthiru Njambi) & 2 others v Statutory Manager
    KEHC 2325 (KLR)
  • Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 others
    [2012] eKLR
  • Kimotho v KCB
    [2003] 1 EA 108
  • National Consumers Dispute Redressal Commission New Delhi Revision Petition No. 1503 of 2004
  • Kenyan Alliance Insurance Company Limited v Naomi Wambui Ngira & another (Suing as the Legal Representatives and Administrators of the Estate of Nelson Machari Maina (Deceased)
    [2021] eKLR
  • Ryce Motors Limited & Another v Elias Muroki
    [1996] KECA 30 (KLR)
  • Bonham Carter vs Hyde Park Hotel Limited
    [1948] 64 TLR 177
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over the insured's claim for indemnity under 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, "Lubisia v Trident Insurance Company Ltd (Civil Case E161 of 2025) [2026] KEMC 698 (KLR)", Case Analysis (2026). Civil Case No E161 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/698/eng@2026-01-16

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