Rashid Juma Kasiwa v Kenya Orient Insurance Company Limited

4. The Plaintiff then filed a declaratory suit through a Plaint dated 13th October 2021 for the sum of Kshs. 171,150 with interest thereon at 14% per annum from 4th June 2021 until payment in full, costs and interest. The Defendant entered appearance and filed a Statement of Defence. The matter proceeded to hearing. The Plaintiff tendered his evidence in court calling two witnesses while the defence called one witness. Thereafter, parties filed their submissions. 5. Judgment was delivered on 18th July 2023 where the court found as follows: “ Arising from the foregoing and on a balance of probabilities, it is the finding of this court that the Plaintiff has failed to satisfy the requirements of Section 10 (2) of the Insurance (Motor Vehicle Third Party Risks) Act. He has not dispensed the burden of proof satisfactorily. Having considered the facts of the case, the applicable law as well as the submissions made by the Counsels on Record alongside the authorities cited by Counsels for the Plaintiff and the Defendant, I do find that the Plaintiff’s suit to lack merit and proceed to dismiss it entirely.” 6. Being dissatisfied, the Appellant appealed the judgment through the Amended Memorandum of Appeal dated 3rd August 2023 on grounds that; a. The learned magistrate erred in law and in fact in dismissing the Appellant’s claim on grounds that the Appellant had failed to satisfy the requirements of Section 10 (2) of the Insurance (Motor Vehicle Third Party Risks) Act. b. In holding that failure to plead the policy number was fatal to the Plaintiff’s case. c. In holding that the certificate of posting needed to disclose what was being posted d. In holding that no demand had been sent whilst there was a demand dated 12th July 2019 sent under certificate of posting dated 31st July 2019 e. In failing to consider in totality the Appellant’s evidence on record in determining liability of the Respondent to settle the judgment sum. f. Placing a higher burden of proof than required under the law. 7. The Appellant prayed for orders that this court allow the appeal, set aside the Judgment of 18th July 2023, enter judgment in their favour as prayed in the Plaint, and award them costs of the suit and the appeal. 8. The appeal was canvassed by way of written submissions. The Appellant in their submissions dated 18th March 2025 stated that the declaratory suit in the trial court was predicated on provisions of Section 10 (1) and 10 (2) (a) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 which establishes the 4-fold test to be met. That is; a. that the motor vehicle in question was insured by the insurance company b. that the Plaintiff has a judgment in his favour against the insured c. that the statutory notice was issued to the insurer either at least 14 days before filing of the suit wherein judgment has been obtained or within 30 days of filing the suit where judgment has been obtained; and d. the Plaintiff was a person covered by the insurance policy. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19447/eng@2025-11-27 2

page 2 of 5

9. The Appellant submitted on whether the Defendant/Respondent is the insurer of the tuktuk that, in its judgment, the learned magistrate confirmed that policy number MSA/0708/035203/2018 was produced and corroborated by the policy abstract dated 11 July 2019. That the document showing the policy number was filed together with the plaint and as such the Defendant was always aware of the policy number subject matter of the suit. The Appellant relied on the case of Kisumu Civil Appeal No. 309, Joel Muga Opija v East African Sea Foods Ltd. 10. On whether the statutory notice was served, the Appellant submitted that the Insurance (Motor Vehicle Third Party Risks) Act does not provide for a specific format for the notices to be issued under Section 10. That was is required is for the Appellant to provide that the insurance had notice of intention to bring the suit, and that a demand letter copied to the insurer suffices as notice. 11. The Appellant stated that he produced a demand letter dated 12th July 2019 and a certificate of postage dated 31st July 2019 which suffices as a notice under the Act. That the registered post is one of the recognized modes of service and that there was apparent confusion as the trial court referred to the certificate of postage of 31st July 2019 as forwarding the notice of 22nd August 2019. 12. That the correct and chronological position was that the demand letter of 12th July 2019 was sent by registered post of 31st July 2019. The Appellant maintained that as long as the insurer is duly notified of an intended suit, that suffices as proper service as guided by the case of Patrick Charo Chiro v UAP. 13. The Appellant argued that the judgment to Kshs. 171,150.00, which was not disputed, remains unsatisfied, and the same ought to be enforced by this court. According to the Appellant, the trial court failed to consider his evidence on record in determining liability of the Respondent to settle the judgment sum, and it is on this basis that the Appellant was guided by the case of Blue Shield Insurance Company Ltd v Joseph Mboya Ogutu [2009] KECA 221 (KLR). 14. That moreover, the trial court erred in placing a higher burden of proof than required in law and that the balance of probabilities was explained in the case of Hellen Karimi Njeru v Mohamed Ahmed Mohamed & another [2015] KEHC 1406 (KLR). The Appellant therefore urged this court to allow the appeal, set aside the judgment of 18th July 2023 and enter judgment in favour of the Appellant. 15. The Respondent in their submissions dated 22nd April 2025 argued that the Plaintiff’s suit having been brought under Section 5 and 10 of the Insurance (Motor Vehicle Third Party Risks) Act had various ingredients that needed to be proved as set out in UAP Insurance Co. Ltd v Patrick Charo Chiro (2021) eKLR and reiterated in Benson Mutira Jiji v Gateway Insurance Co. Ltd (Civil Appeal 126 of 2018) [2022] KECA 368 (KLR) (11 February 2022) (Judgment) where the Court of Appeal expressed itself on the burden of proof as set out in Section 12 of the Act. 16. The Respondent argued that for a claim to succeed, the Plaintiff must prove that the Respondent had insured the motor vehicle and that a statutory notice had been served either before filing of the primary suit or within 30 days of filing the primary suit. 17. The Respondent submitted the policy number had not been pleaded in the plaint. The Respondent stated that the position of the trial court has not been challenged by the Appellant but only urges that the evidence was filed with the Plaint. That it is trite law that before evidence can be adduced, a party is first required to plead the particulars then present evidence. That considering it is a matter of fact that the Plaintiff neither pleaded the policy number nor stated who the alleged insured was, it cannot be said that the trial court arrived at a wrong finding. 18. On service of the statutory notice, the Respondent submitted that the manner of proof of a notice was set out in Mariam Njeri Njau v Attorney General (2016) eKLR. That according to the holding of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19447/eng@2025-11-27 3

page 3 of 5

court, the letter dated 22nd August 2019 had no stamp from the Defendant, it was neither accompanied by an affidavit of service nor a certificate of posting. That in the circumstances, the trial court could not be faulted for holding that there was no evidence of service. 19. That the Plaintiff’s purported statutory notice was the one dated 22nd August 2019 which was not accompanied by a certificate of posting. That in re-examination, the Appellant changed his evidence and stated that the statutory notice had been served by email but no evidence to that effect was tendered. The Respondent prayed for dismissal of the appeal with costs. 20. The Appellant filed further submissions dated 24th June 2025 in response to the Respondent’s submissions. The Appellant has reiterated contents of their submissions dated 18th March 2025. Analysis 21. The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: “ … Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect …” 22. I have considered the Record of Appeal dated 3rd August 2023 and submissions by the parties. The issues for determination are: a. Whether requirements under Section 10 (2) of the Insurance (Motor Vehicle Third Party Risks) Act were satisfied b. Whether failure to plead the policy number was fatal to the Plaintiff’s case c. Who is to pay costs 23. On the first issue, I have perused through the judgment of the trial court. The court found that the Appellant had failed to satisfy the requirements under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act. The Appellant stated that the Respondent was notified by way of the Demand Letter dated 12/07/2019 when the said letter was copied to the Respondent. 24. A copy of Postal Corporation of Kenya receipt whose sender is Mathew Nyabena & Co. Advocates and the addressee being Kenya Orient Ins. Co. Ltd was produced. The Appellant said the postage was in respect to the copy of the demand letter to the Respondent but not the Statutory notice dated 22/08/2019 as alleged by the Respondent. 25. Even though the postal certificate did not indicate the document being sent, the information therein is sufficient to corroborate the evidence that the Demand Liter was sent to the Respondent. I do agree that section 10 of the Act does not specify the form of the notice to be issued to the insurance company. I find that the Insurance was duly notified of the accident and the intention to sue. 26. There was no dispute in respect to the satisfaction of the rest of the requirements under section 10 of the Act. Nevertheless, the Respondent submitted that the failure to plead the insurance policy was fatal to the suit. I do agree with the submissions by the Appellant that the supporting documents which include the Police Abstract indicated the name of the insurer and the policy number. 27. Further, the policy number is indicated in the demand letter and the statutory notice. I find that the Respondent was well aware of the insurance policy in issue from the documents filed. The Respondent also submitted that he failure to plead the policy number was fatal to the Appellant’s case. I do agree https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19447/eng@2025-11-27 4

page 4 of 5

with the submissions by the Appellant that the omission is cured by Order 2, rule 3 (1) of the Civil Procedure Rules. Under the circumstances does not amount to the Respondent avoiding its statutory duties to satisfy the judgment of the court. 28. On the amount claimed for Kshs. 171,150/=, the Respondent said it has not been established how the Appellant came up with the amount. The Appellant made reference to the demand letter dated 14/06/2021 which was addressed to the insured in the primary suit. I agree with the Appellant that the demand notice was not challenged. I find that the claim for the said amount is properly before court. 29. On costs, the same follows the event. The appeal being a success, costs are awarded to the Appellant both in the lower court and on appeal. Determination 30. Having found as above, the following orders flow therefrom. The appeal has merits and is allowed on the following terms; a. Judgment of the lower court is hereby set aside and substituted with a judgment in favour of the Plaintiff/ Appellant against the Defendant/ Respondent for Kshs. 171,150/= with interest at 14% p.a from 04/06/2021 until payment in full. b. Costs awarded to the Respondent. Orders accordingly. DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 27TH DAY OF NOVEMBER, 2025. ......................... HON. F. WANGARI JUDGE In the presence of: N/A by the Appellant Mr. Kioko Advocate h/b for Mr. Jengo Advocate for the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19447/eng@2025-11-27 5

page 5 of 5