Directline Assurance Company Limited v James Mutuku Mulako

4. c. Tawa PMCC 63 of 2021 Peninah Nduku Muthiani alias Peninah Harison vs James Mulako Mutuku. d. Tawa PMCC 55 of 2021 Florence Mumbua Kilile alias Mary Mulwa vs James Mulako Mutuku. e. Tawa PMCC 58 of 2021 Lena Ndunge Muema vs James Mulako Mutuku. f. Tawa PMCC 60 of 2021 Catherine Muthini Gedion alias Catherine Muthini Mbwele vs James Mulako Mutuku. g. Tawa PMCC 57 of 2021 Harisson Muthiani Muthui vs James Mulako Mutuku. h. Tawa PMCC 61 of 2021 Elizabeth Mumo alias Elizabeth Ndumi Kilile vs James Mulako Mutuku. i. Tawa PMCC 56 of 2021 Damaris Mutindi Mbwili alias Mutindi Joshua vs James Mulako Mutuku. j. Tawa PMCC 62 of Monicah Kimeu alias Monicah Mueni Mutungi vs James Mulako Mutuku. k. Tawa PMCC 64 of 2021 Charity Nzula Peter vs James Mulako Mutuku. l. Kithimani SRMCC E100 of 2020 Gladys Nzilani Mutinda alias Gladys Mbithe vs James Mulako Mutuku. It is averred that the plaintiff carried out investigations of the accident, and established through the reports it produced at the trial, that the defendant was in breach of the express provisions of the policy – thus:Particulars Of Breach And/or Misrepresentation/breach Of The Insurance Policy By The Defendant/his Agent Or Authorized Servant 5. a. Permitting motor vehicle registration number KCB 185X to be driven by an unlicensed driver. b. Deliberately and willfully concealing the contact details of the driver of motor vehicle registration number KCB 185X. c. Carrying 18 passengers which is beyond and or contrary to the statutory limit of 14 passengers. d. Concealing material facts on the cause of the accident. e. Failure to abide the policy terms and conditions. The plaintiff sought the following orders:a. A declaration be made that the Plaintiff is entitled to avoid or repudiate the Insurance Policy no. 00152736 and/or any claims arising thereto or any addendums, endorsements and renewals thereof issued by itself to the Defendant. b. A declaration be made that the Plaintiff has no contractual or legal liability to satisfy any judgment obtained pursuant to the accident which occurred on 23rd April 2021 at about 9 a.m. at Kikuyuni area along the Katangi-Ikombe Road at by the Interested Parties and/or any claimants against the Defendant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6459/eng@2026-04-21 2

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c. Costs of the suit. d. Any other relief the court may deem just to grant. 6. The Interested Parties entered a statement of defence stating that they were strangers to the averments of alleged breach of the policy of Insurance between it and the defendant. 7. The defendant also filed a defence – on 21/4/2022 admitted the occurrence of the accident – but that it was upon the Interested Parties to prove that they were passengers in the said motor vehicle and that they were entitled to the General Damages and Special Damages they were seeking. 8. The defendant put the plaintiff to strict proof to all the allegations about breach of the terms of the Insurance Policy. He further denies any vicarious liability – the defendant avers that the Plaintiff is liable under the Insurance Policy to compensate, indemnify/restitute the 3rd parties. The defendant’s position is that the suit is incurably defective and must be struck out. 9. The matter was heard through oral evidence – The Plaintiff’s Case The plaintiff called three witnesses – Kelvin Ngure the plaintiffs. claims manager at Directline Insurance – He produced the policy document and confirmed that the plaintiff denied the claim on two grounds; that the driver was not licensed at the time of the Road Traffic Accident and did not have PSV licence; and motor vehicle was overloaded with 18 passengers instead of 14. 10. On cross-examination he confirmed that only 12 claims had been filed against the defendant and that as per the plaint these persons were adults. He said there was no evidence of ages of the passengers. He testified that the investigations were carried out by its internal investigators. He said that he did not personally speak to the passengers; he said the driver did not have a PSV badge. He said that he was not aware of any charges against the driver. He further confirmed that following the Road Traffic Accident some matters were completed and the plaintiff was served with some decrees. He said however he was not aware whether any of them had been settled. He confirmed that motor vehicle had 3rd Party Insurance but the driver was unauthorized, and motor vehicle was overloaded. 11. PW2 was the Investigator – Rosemary Wairimu Mburu. She visited the scene and the police station. She prepared both the Preliminary Report and the Investigation report both of which she produced as evidence. She stated that motor vehicle had 18 passengers but she only spoke to 2 of them at the police station –but she did not record their statements . She said she did not ascertain the ages of the alleged 18 passenger to confirm that they were all fare paying passengers. 12. On cross-examination she said she did not produce the policy document – that she was an employee of the plaintiff; that there was no independent report of investigation. That she said in her report that driver did not have PSV badge or driver’s license. She said that 14 claims had been filed but counted 13; that she did not meet the driver of the motor vehicle. That she spoke about offences committed by the driver in the report but was not aware whether the driver had been charged or not; that from the NTSA system the class A license was not valid – she confirmed that motor vehicle was insured by the plaintiff and that Road Traffic Accident was self-involving. She said that the main issue was that the motor vehicle was ferrying excess passengers. 13. PW3 was No. 73660 PC Peter Mwangi who told the court that his role was only to produce the OB – he said he did not make the entry in the OB which recorded the Road Traffic Accident of 23/4/2021. He said the records named the driver as Benson Mulandi, and motor vehicle was ferrying 18 fare paying passengers. He read out 18 names entered in the OB. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6459/eng@2026-04-21 3

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14. On cross-examination he said he was not the Investigating Officer, he did not visit the scene, he was not aware that the driver had reported loss of his PSV badge – He said he could not be examined on the veracity of the OB that the 18 were fare paying passenger. 15. He said the OB entry was made by Base Commander Inspector Jack Ila ; he was not aware of any Criminal charges against the driver. He said only 13 P3’s had been issued. The Defence Case 16. The defence called 2 witnesses. 17. The owner of the motor vehicle – James Mulako Mutuku – He confirmed that the motor vehicle was insured by the plaintiff and his driver was licensed, and had PSV badge. He said his driver was never called by the plaintiff to testify/record the statement; that his driver was not charged. He said that the motor vehicle was ferrying 12 people. He said his driver was not charged – He said he did not find the driver at the scene; he had been taken to hospital. 18. DW2 Benson Mulandi Mulako was the driver. He produced his Driver’s licence. He said the Base Commander took over his PSV and DL after the accident – that the Base Commander misplaced them, and he had to apply for new ones. – he said no one called him from the Insurance Company. He said the Base Commander took his PSV badge. He said he recorded 14 passengers in the police. He said that there was a pickup m/vehicle behind him and he suspected that some passengers from that pick up may have jumped into the matter because they knew they would be paid compensation. 19. He confirmed that he gave his PSV badge and DL to the base commander; that motor vehicle was insured; the defence closed its case. The Interested Parties’ 20. The Interested Parties did not call witnesses but produced their pleadings. 21. Parties then filed submissions. The Submissions The Plaintiffi 22. The Plaintiff submits on the three issues it has raised for determination; the nature of the policy, between it and the defendant, whether defendant breached the same, and whether the plaintiff is entitled to the prayers it seeks. 23. The plaintiff relies on section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act. The plaintiff also relies on section 107 of the Evidence Act for the proposition that it was upon the defendant to prove that his driver had a PSV license. The plaintiff also relied on National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd & Anor [2001] eKLR for the proposition that the court cannot rewrite a contract for parties. That parties are bound by their contract unless coercion, fraud or undue influence are pleaded and proved. The Defendants 24. For the Defendant it is submitted that the Plaintiff has not met the required standard for the court to repudiate the undisputed contract between the parties (plaintiff and defendant). https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6459/eng@2026-04-21 4

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25. That the onus lies on the Plaintiff to prove that there was a provision in the Insurance Policy entitling it to repudiate the same. The defendant relies on section 107 and 108 of the Evidence Act; and Fidelity Commercial Bank Ltd vs Kenya Grange Vehicle Industries Ltd [2017] eKLR – for the proposition that this court ought to apply the “principle of four corners” in interpreting the contract between the parties - meaning that the meaning of the contract can only be derived from what is written in it – not from anything outside it. 26. It is submitted that on the allegation that the matatu had 18 fare paying passengers – no evidence was availed – and in any event, only 12 claims have been raised and there are only 12 Interested Parties to this suit. That no credible evidence was placed before court to counter that of the driver. 27. That regarding the Driver’s license – the Police Abstract OB 24/28/4/2021 issued at Matuu police station referenced the driver’s licence hence his testimony that he surrendered it to the Base Commander was not challenged. 28. It was submitted that the section 10(4) referred to in the Insurance (Motor Vehicle Third Party Risks)Act – is about mis presentation or non- disclosure of material facts at the time of entering into the contract. That any alleged breaches which are denied happened post contract and were not covered by the cited section 10(4). There was no evidence of fraud, concealment, or mis presentation. The defendant relied on Sita Steel Rolling Mills Ltd vs Jubilee Insurance Co. Ltd [2007] eKLR. 29. Further the defendant relies on section 8 of the Insurance (Motor Vehicle Third Party Risks) Act – which speaks of conditions that are of no effect in an insurance policy; and APA Insurance Ltd vs Gatugi Civil Case No. 32/2020 [2024] KEMC 18 KLR [2024] eKLR. 30. It is argued that the plaintiff had not proved its suit. 31. Interested Parties: For the Interested Parties it is submitted that they have a valid Judgment against the defendant – and since he had a valid Insurance Policy and the time of the accident, they are entitled to settlement of their claims. They rely on section 10(1) of the Insurance (motor vehicle Third Parties Risk) Act – where an Insurance Policy is in effect – and Judgment is obtained in respect of any liability covered by that policy – against the insured – their “notwithstanding that the Insurer may be entitled to avoid/cancel or may have avoided/cancelled the policy, the Insurer shall, subject to the provisions of this section, pay the persons entitled to benefit of the Judgment any sum payable thereunder is respect of the liability…” Analysis & Determination 32. I have carefully considered all the evidence before me and the submissions by each party. I have considered the cited provisions of the policy document between the parties (plaintiff & defendant). I have also considered the authorities cited, and the provisions of Evidence Act, the Insurance (Motor Vehicle Third Party Risks) Act – and the issue is whether the plaintiff has proved its allegations against defendant: whether the driver was licenced; whether the m/v was overloaded; whether the plaintiff is entitled to the prayers sought. 33. On the number of passengers in the matatu and the time of the evidence the plaintiff witnesses did not provide sufficient evidence to support the alleged 18 passengers. The Investigator said she spoke to 2 passengers. She did not give any particulars of the said passengers or record their statements. She did not say that they told her that the matatu was overloaded, she did not establish the ages of any of the alleged “18” passengers. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6459/eng@2026-04-21 5

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34. The police officers who produced a list of 18 told the court he did not make the list; and that it was made by the Base Commander, who was not called to testify. The driver of the motor vehicle was not called by the Insurance Company to testify but he told the court that he had 12 passengers and that other people who thought they would be paid by the Insurance (Kesi ya pesa) may have jumped in and entered their names. 35. In any event only 12 claims were brought against the plaintiff and there was nothing to show that the motor vehicle had carried excess passengers. 36. Is it not strange for police to confiscate the license of a drive and even Insurance sticker of a motor vehicle after an accident – The driver produced his DL – he told court that the document, had been seized by the Base Commander who had misplaced them. The plaintiff could have called the base commander IP Ila who was the actual Investigating Officer of the matter, but instead called a police officer whose singular role was only to produce the OB abstract – and who could not answer any questions regarding the entry in the OB. 37. The plaintiff did not establish that the defendant hid the particulars of the driver. This was the same driver who took the m/v for inspection. The defendant cannot be faulted for the failures of the police if they did not capture the details of the driver of a m/v in a self-involving accident. 38. The plaintiff is liable under the Insurance Policy between it and the defendant from the claims by the Interested Parties – There was a valid policy of insurance. 39. There is no proof of breach. The plaintiff did not prove its case as required by sections 107 and 109 of the Evidence Act . In any event section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 is applicable to this matter. It states; - 10. Duty of insurer to satisfy judgments against persons insured. (1)If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. Provided that the sum payable under a judgment for a liability pursuant to this section shall not exceed the maximum percentage of the sum specified in section 5(b) prescribed in respect thereof in the Schedule. 40. The plaintiff sought the following orders: i. A declaration be made that the Plaintiff is entitled to avoid or repudiate the Insurance Policy no. 00152736 and/or any claims arising thereto or any addendums, endorsements and renewals thereof issued by itself to the Defendant. ii. A declaration be made that the Plaintiff has no contractual or legal liability to satisfy any judgment obtained pursuant to the accident which occurred on 23rd April 2021 at about 9 a.m. at Kikuyuni area along the Katangi-Ikombe Road at by the Interested Parties and/or any claimants against the Defendant. iii. Costs of the suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6459/eng@2026-04-21 6

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iv. Any other relief the court may deem just to grant. 41. From the foregoing the plaintiff did not prove its case to warrant the prayers sought. 42. The prayers are declined and the suit is dismissed with costs. JUDGMENT, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21 ST APRIL 2026. MUMBUA T MATHEKA JUDGE CA Chrispol Ngure for respondent Awino for plaintiff Ms. Kisui holding brief for Makau Mutua for the interested Parties https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6459/eng@2026-04-21 7

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