Peter Muasya Kiveve v Mutua Musang’a Dan Mbindyo Makau Mwikali David

Government. That the Respondents without any justifiable cause or any colour of right purported that the Appellant had stolen/misappropriated funds from the self-help group allegedly without even rendering any proper books of accounts. 4. The Appellant asserted that the Respondents with impunity threatened, harassed, applied undue influence, misrepresentation of facts and with coercion, forced the Appellant to sign an agreement dated 17/02/2021 purporting that the Appellant owed money to the group to the tune of Kshs.400,000/=. 5. The Appellant particularized the particulars of coercion, undue influence and misrepresentation of facts on the part of the Respondents as follows:a. Threatening the Appellant with physical harm; b. Threatening the Appellant with illegal arrest; c. Failing to explain the import of the agreement; d. Bombarding the Appellant with emotional and psychological torture. 6. The Appellant further claimed that Respondents’ actions had improper and ulterior motives in pursuing unsubstantiated claim against him and have injured his reputation and character among the right thinking members of the society thereby occasioning him emotional and mental anguish. The Appellant alleged that the Respondents had continued to exert pressure on him to honour the terms of the impugned agreement dated 17/02/2021 and had threatened to use the Provincial Administration and Police to force the Appellant into submission. 7. The Respondents filed a Statement of defence dated 12/4/2021 in which they totally denied the Appellant’s claim especially the particulars of coercion, undue influence 2

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and misrepresentation as well as service of the demand and/or notice to sue as pleaded in the Plaint and put the Appellant to strict proof thereof. The Respondents prayed that the suit against them be dismissed with costs. 8. The case was set down for hearing. The Appellant called 4 witnesses who adopted their respective witness statements filed in the suit and produced as exhibits PExt.1 and Pext.2, An agreement dated 17/02/2021 and A demand letter dated 4/3/2021 attached to his list of documents dated 16/3/2021 to prove his case. 9. Similarly, the Respondents in support of their case called 4 witnesses who also adopted their respective witness statements filed in the suit and produced as exhibits the following documents:1. Minutes of meeting held on 10th February,2021. 2. Cash posit slip issued on 15/2/2021 3. Bank statement for Inyia Umwe self help group. 4. Summons dated 1st February, 2021. 5. Summons dated 7th December 2020. 6. Letter dated 23rd February 2021 to KCB Bank stating change of signatories for Inyia Umwe self help group bank account. 7. Minutes of Inyia Umwe self help group meeting held on 17th February 2021. 8. Auditor's report on Inyia Umwe self help group’s cash flow for period between 7th June, 2013 to 31st March 2021. 10. Upon considering the evidence tendered by each side, the Learned Trial Magistrate found that there was no coercion when the agreement was signed and therefore there was no basis for rescinding the contract. The trial court further 3

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found that the Appellant did not call any evidence in support of the claim for General Damages. In the end the Appellant’s suit was dismissed with costs to the Respondents. 11. Being dissatisfied by the trial courts judgement, the Appellant filed the appeal herein vide a Memorandum of Appeal dated 21/12/2022 raising seven grounds of appeal as follows :a)The Learned Trial Magistrate erred in law and fact by finding at the Appellant had not proved his case on a balance of probabilities. b) The Learned Trial Magistrate erred in law and fact by failing to analyse the whole evidence on record and therefore arriving at an erroneous decision. c)The Learned Trial Magistrate erred in law and fact by not finding that the Purported agreement fell short of the minimal basic legal elements of an agreement. d) The Learned Trial Magistrate erred in law and fact by holding that the purported agreement was valid despite the fact that it was only executed by one party, the Appellant. e) The Learned Trial Magistrate erred in law and fact in addressing himself on supposition and extraneous matters not borne from the pleadings. f) The learned Trial Magistrate erred in law and fact by finding that the purported agreement was premised on a minute No. 04/17/02/21. g) The Learned Trial Magistrate erred in law and fact in finding that the Appellant was not coerced into signing 4

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the purported agreement imposing obligation on himself. 12. The Appellant prayed that the judgement of the subordinate court delivered on 24/11/2022 be set aside and his Plaint dated 16/3/2021 be allowed plus costs of this appeal and interest. 13. The appeal was canvassed by way of written submissions. Analysis and Determination: 14. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & Another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited [1968] E.A 123. (1958) E.A page 424. 15. I have carefully perused and considered the record, the grounds of appeal, the rival submissions by the learned counsel for the parties, the judgement by the learned trial magistrate and the law. 16. The existence of INYIA UMWE SELF HELP GROUP is not disputed. It is also not disputed that both the Appellant and the Respondents were members prior to institution of this suit and that on 17/02/2021 the said group held a meeting where the Appellant is said to have signed an agreement dated 17/02/2021 in which he agreed and/or undertook to pay Kshs.400,000/= he owed the group. 17. The disputed issue and which is the basis of this case is that the Appellant contends that the Respondents with 5

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impunity threatened, harassed, applied undue influence, misrepresented facts and with coercion, forced the Appellant to sign the said agreement which the Appellant sought to be rescinded and he be awarded general damages, however the trial court dismissed the Appellant’s suit thereby necessitating the lodging of this appeal. 18. Having perused the document PExt.1 dated 17/02/2021 purported to be an “Agreement/Contract”, this court is of the contrary view that the said document is more of an unequivocal undertaking and/or commitment by the Appellant agreeing on how he intended to pay the amount of Kshs.400,000/= owed to INYIA UMWE SELF HELP GROUP. The said document is solely signed by the Appellant and not by any other person. 19. I have keenly perused the Appellant’s witness statement dated 19/5/2021and his testimony in court, I am not persuaded that the Appellant led any evidence to demonstrate that indeed he was threatened, harassed, applied undue influence, misrepresented with facts and with coercion, forced by the Respondents to sign the said document dated 17/02/21. 20. The Appellant having failed to prove that he was threatened, harassed, applied undue influence, misrepresented with facts and with coercion, forced by the Respondents to sign the subject document dated 17/02/21 which this court does not consider as an agreement but rather a commitment and or an unequivocal undertaking, there is no valid reason to rescind or cancel the same. In the circumstances, it then follows that general damages as pleaded do not arise and are not awardable. In any event, the same too were not proved. 21. The upshot is that the appeal is dismissed with costs to the Respondents. 6

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22. Orders accordingly. File closed. JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 17 TH MARCH 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 17TH MARCH 2026 In the presence of : Mr. Mutunga hb for Musyimi for Appellant Mr. Mathoka-Respondent Milly-Court As K/REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA ATMACHAKOS CIVIL APPEAL NO. E165 OF 2024 APA INSURANCE LIMITED..................................................APPELLANT VERSUS PATRICK KISINGU .........................................RESPONDENT MUNYAO (Being an appeal from the judgment and decree of Hon. Khapoya S. Benson (SRM) delivered on 15.5.2024 in Kithimani Civil Case No. 68 of 2019) JUDGEMENT 1. The Appeal herein arises from the judgment and decree of the Chief Magistrate’s Court at Kithimani delivered on 15/5/2024 in Kithimani CMCC No. 68 of 2019. The Respondent herein filed a declaratory suit vide a Plaint dated 29/01/2019 against the Appellant seeking a declaration that the Appellant was bound to settle the decretal amount in the mentioned suit having been the 7

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insurer of motor vehicle registration No. KBN 103F which had been involved in accident on 1//10/2012 along Embu Kanyonyo Road and in which one Mulwa Muli (deceased) sustained fatal injuries. 2. The Appellant entered appearance and filed its statement of defence dated 06/12/2019 denying the Respondent’s suit in entirety arguing that the deceased was an employee to the Respondent at the time of the accident hence not covered under the insurance policy as the Respondent’s policy cover did not extend to the scope of indemnity to cover injury or death of the Respondent’s employees and that it was within its right contractually to avoid the claim. The Appellant put the Respondent to strict proof of the claim. 3. The Respondent then filed a reply to the defence dated 17/12/2019 reiterating the contents of the Plaint and praying that the Appellant’s statement of defence be struck out and judgement be entered as sought in the Plaint. 4. The matter proceeded for hearing on 15/11/2023 and upon hearing the parties the trial court delivered its Judgement on 15/4/2024 wherein it found and declared that the Appellant is enjoined by public policy to uphold the contract in terms of compulsory third-party insurance dimensions of the contract dated 12/2/2012. 5. Aggrieved by the trial court's decision, the Appellant lodged this Appeal vide a Memorandum of Appeal dated 14/6/2024 which raised seven grounds of appeal and prayed that the appeal be allowed with costs and the judgment of the trial court delivered on 15/5/2024 be set aside and an order to issue dismissing the Respondent's suit in the trial court. 8

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6. 7. 8. The Appeal was canvassed through written submissions. The Appellant’s submissions The Appellant’s submissions are dated 16/5/2025. It is submitted that it is not in dispute that there existed a comprehensive policy of insurance christened Motor Advantage that was still valid at the time of the accident which occurred on 1st September 2012. It is also not in dispute that as a result of the accident two persons sustained fatal injuries one person being the driver of the subject motor vehicle. The only issue in dispute is the capacity of the second person, Mulwa Muli, who at the time of reporting the accident to the Appellant, had been identified by the Respondent [through the Respondent’s authorized agent (also an employee) as the turn boy. The Respondent, however, belatedly changed this position when the Appellant withdrew representation in the claim filed by the deceased’s family and now indicated that the said Mulwa Muli, was a passenger in the said vehicle and not a turn boy. The Respondent alleged that at the time of reporting the accident to the Appellant, the Respondent had been sick and had thus sent his representative to the Appellant’s offices to report the accident and that it was the said agent that had made the mistake. That from the evidence on record, the report to the Appellant was done twice on two different dates being 6th September 2012 and again on 8th September 2012. (See pages 93 to 96 of the Record of Appeal). That there is no evidence tendered before this court that the Respondent was actually sick on both these days when the report was made to the Appellant. The signatures that appear on both Motor Accident Report Forms (pages 94 and 96 of the Record of Appeal) are similar to the Respondent’s signature as appears in his verifying affidavit as well as his witness statement (pages 8 and 11 of the Record of Appeal). This clearly indicates that the report was 9

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made by the Respondent himself and he knew the exact relationship that he had with the deceased Mulwa Muli which is an Employer – Employee relationship. The Appellant submitted that, it is no wonder that the alleged/non existent agent was never called to testify on his alleged mistake. That the Respondent only changed his position when he realized that according to the terms of the insurance policy, his employees were not covered. The alleged Respondent’s agent by the name of Cornellius Maingi who had initially been listed as a witness in support of the Respondent’s case was never called as a witness in the matter despite the Respondent testifying that he was readily available. 9. That it is trite law that documentary evidence cannot be contradicted by hearsay oral testimony. It is also trite that he who alleges must prove. The Appellant cited Section 107 of the Evidence Act provides that, “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 10. The Appellant submitted that having not called the said Cornellius Maingi as a witness in this matter who would have been in a better position to explain to the court that indeed he made a mistake in indicating that the deceased was a turn boy instead of a passenger. That further in his judgment, the learned trial Magistrate stated that no finer details of the deceased’s employment have been provided. These are details that (if indeed necessary) could only be obtained from the employer and the Appellant being the insurance company could not possibly have the said details 10

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as the insurance policy was only in relation to the motor vehicle and not the Plaintiff’s employees (WIBA). That the learned trial Magistrate further erred when he stated and made a finding at page 167 of the Record of Appeal (line 712) to the effect that the Motor Accident Report Form is a legal document with burdensome legal consequences and that the Respondent ought to have been afforded legal representation for purposes of guidance and advice. However, there is no evidence before this court that the Respondent nor the said Respondent’s agent who filled in the said motor accident report form did not understand the contents of the motor accident report form before filling in the same. That this is a matter that the trial magistrate imagined and introduced in his judgement to great prejudice of the Appellant who indeed, had no opportunity to counter the same either by evidence or submissions. The Appellant therefore submitted that the learned trial magistrate, committed a serious error in this respect when he ceased to be a neutral umpire and strode into the arena of the dispute and took the position of a partial witness while making the judgement in the case. 11. It is also submitted that the learned magistrate further stated that the Appellant seeks to avoid and/or dodge its obligations on a technicality which should be refused. That it is clear that the subject policy only extended to third parties and did not cover the Respondent’s employees. Apart from the oral evidence of the Respondent that the said Mulwa Muli was only a passenger which is contradicted by the documentary evidence that indicates that Mulwa Muli was a turn boy and thus an employee of the Respondent, there is no other evidence to show that indeed Mulwa Muli was a passenger. That in his witness statement dated 29/1/2019, the Respondent averred that the deceased Mulwa Muli was a fare paying passenger. There is no evidence of the amount of fare he paid nor who the said amount was paid to and/or the said motor vehicle 11

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was at the relevant time, being used to ferry passengers for reward, which would in any event be still contrary to the terms of the policy as the same was never a PSV Policy. 12. The Appellant has questioned how the Respondent knew that the passenger was a fare paying passenger when both the occupants of the motor vehicle were deceased and, in any event, the subject motor vehicle was not used for ferrying passengers. If indeed there was any fare paid by the deceased, the Respondent ought to have produced evidence of the same. The Appellant therefore submits that the Respondent is bound by the terms of the policy of insurance to wit employees of the Respondent are not covered. The trial court had no jurisdiction whatsoever to purport to rewrite the contract between the parties under the guise of protecting the Respondent from alleged technicalities. Reliance was placed on the case of Ominde v Jubilee Insurance Company (Civil Appeal E024 of 2023) [2024] KEHC 408 (KLR) (25 January 2024) (Judgment), where the court held that, “The appellant herein failed to prove his case against the respondent. He was bound by the terms of the policies he entered into and having failed to show that he was coerced, unduly influenced or fraudulently duped into entering into them, he cannot be heard to plead ignorance of the terms thereof.” 13. It was submitted that the Respondent herein was well aware of the terms of the policy of insurance that he had taken with the Appellant and when the same did not suit his status, he sought to change his position for him to be accommodated within the policy. The Appellant had every intention of taking up the claim and had in fact instructed counsel to take up representation of the court matter against the Respondent. However, the representation was 12

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only withdrawn once the Appellant realised that the deceased was an employee and was not covered under the terms of the contract of insurance. As stated at page 80 of the Record of Appeal, the Commercial Vehicle Policy Cover on the clause of “What is not covered under Section II” it provides that, “We will not pay a. For death of or bodily injury to any person in your employment arising out of and in the course of such employment.” 14. That the same Clause is further captured in the Clauses attached to policy under the exceptions clause. The Appellant submitted that there is sufficient evidence before this court that the said Mulwa Muli was an employee of the Plaintiff and he was therefore not covered by the terms of the policy of insurance between the Appellant and the Respondent. 15. Also cited was the case of 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, the court stated that, “It is not in dispute that the deceased, one Nelson Macharia Maina was an employee of one Wilson Chege Gakunyi who was the insured at the material time. At the time of the accident, the deceased was travelling in the insured’s motor vehicle registration number KBS 086K /ZD 0904 and he was employed as a turn boy tasked to load and offload goods from the motor vehicle. It is therefore clear that the deceased, was not such a person who could benefit from the cover entered into between his employer, Wilson Chege Gakunyi and the Appellant. As per the 13

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aforementioned provisions, indeed the deceased and/or his estate cannot benefit from the cover between the Appellant and it’s insured, Wilson Chege Gakunyi.” 16. The Appellant submitted that the fact that there exists a valid insurance policy and that an accident involving the insured vehicle has occurred does not necessarily mean that all persons injured must be compensated under the subject policy as the terms of the policy contract must also be adhered to for such policy to take effect. The Appellant therefore urged this Court to find that the deceased, Mulwa Muli was an employee of the Respondent and that the court therefore erred in relying on extraneous matters to find that the Appellant is liable to settle any claims that arise from the accident that occurred on 1st September 2012 involving the Respondent’s motor vehicle registration number KBN 103F. Consequently, the Appellant prayed that the appeal herein be allowed as prayed. Respondent’s submissions 17. The Respondent’s submissions are dated 23/05/2025. It is submitted that though the Appellant framed 7 grounds for appeal, the main issue in contention is whether the deceased in Kithimani PMCC No. 74 of 2013 (primary suit) was an employee of the Respondent and whether being an employee he was not covered by the policy between the parties herein. 18. On the issue, the Respondent submitted that his evidence was categorical that he has never employed the said MULWA MULI and therefore he was a third party aboard the Respondent's motor vehicle registration number KBN 193F and which according to both PWI and DWI was comprehensively insured against 3 rd party claims by the Appellant herein. As earlier stated, the error by the Respondent’s agent was explained to the Appellant 14

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through the Respondent’s Advocates in the letter dated 21/10/2016 which the Appellant ignored. The same was also further explained by the Respondent during hearing on 15/11/2023 and all these were taken into consideration by the trial court's Judgement at Page 166-167 of the Record of Appeal. 19. It was further submitted that the Appellant did not raise any of the defences available to it including repudiation of the statutory notice served upon it. That the Appellant is the one who claimed the deceased in the primary suit was the Respondent's employee and did not avail any documentary evidence in support of the said claim. In addition, as rightly put by the trial court, the alleged Report Form was not part of the contract between the parties herein. (See Page 167 of the Record of Appeal). The Respondent in his testimony also testified to the fact that he had not employed the deceased in the primary suit and he only learnt that there was a passenger on board the motor vehicle after the accident and he asked someone to report the accident to the Appellant herein. In addition, the alleged exceptions relied upon by the Appellant do not in any way form part of the contract between the parties herein as the same have not been signed by either party and as such, the said provisions/clauses cannot be said to be binding to either party. The Respondent therefore, submitted that there was a valid insurance policy at the time of the accident and judgment was entered against the insured thus the Appellant was liable to settle the decretal amount. 20. Moreover, the provisions of Sections 107 and 108 of the Evidence Act also come into play as it was not sufficient for the Appellant to rely on an alleged fact and then shift the burden of proof of the alleged fact to the Respondent. It is clear that he who alleges must proof and with or without the testimony of Cornelius Maingi (See paragraph 10 of the 15

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Appellant's submissions) the Appellant ought to have proved its case to the required standard of proof. If the Appellant wanted the court to believe that the deceased in the primary suit was not covered by the policy, it was duty bound to adduce evidence for the court to find in its favour. 21. That the Appellant did not adduce any evidence to prove that under the insurance policy and the contract between parties that the deceased in the primary suit was not covered. This is especially so since they were duly served with a Statutory Notice and Demand Letter and they in fact subsequently appointed an advocate to act for the Respondent in the Primary suit then they abandoned the same without formally repudiating the claim or by filing a declaratory suit repudiating the claim in the primary suit. Reliance was placed on AIG Kenya Insurance Co. Limited v Outsourced Professional Services Ltd (Civil Appeal E1038 of 2022) [2024] KEHC 8229 (KLR) (Civ) (26 June 2024) (Judgment) where the court had this to say:“Having there been sufficient evidence to proof that the appellant was the insurer of the subject motor vehicle, I see no reason to interfere with the trial court's decision. I also note that the appellant did not invoke any of the available defences to avoid the claim, In the circumstances, I find that the respondent proved its claim sufficiently and the trial court did not err in its findings.” 22. That, in order to determine whether there was a duty for the Appellant to settle the claim in the primary suit, the trial Court considered the provisions of Section 10 of the Act which provides as follows: “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 16

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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.” 23. Section 5(b) of the said Act provides: “In order to comply with the requirements of section 4, the policy of insurance must be a policy which insures such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of death of, or bodily injury to, any person caused by or arising out of the use of the vehicle on a road.” 24. In addition, Section 10 (4) of the Act requires of an insured who wants to deny liability to obtain a declaration either before or not more than three (3) months following commencement of the primary suit. The way to obtain such declaration is by filing a declaratory suit in Court. Furthermore, this action would only be valid if the said insured had within fourteen (14) days of the filing of the primary suit, given notice to the Plaintiff in the primary suit 17

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that it was not liable and thereafter file a declaratory suit. However, in this case, the Appellant appointed counsel to act for the Respondent in the primary suit, proceeded to file a defense on behalf of the Respondent and unceremoniously and without notice abandoned the matter. 25. The Respondent submitted that justice and fairness would only be meet if Courts safeguards insureds who have faithfully paid premiums to their insurer from insurers who try to evade claims by purportedly repudiating claims without any justifiable reasons and in any case, the repudiation was not done procedurally. 26. The Respondent therefore vehemently opposed the appeal and submitted that the learned trial magistrate took into account the law and evidence on record in arriving at its findings and there are no reasons that have been given by the Appellant to warrant setting aside of the said Judgement and or Decree. The Respondent further relied on his submissions filed in the lower court dated 16/12/2023 found at Page 105-116 of the Record of Appeal and prays that the same be adopted herein mutatis mutandis. 27. The Respondent invited this court to dismiss the Appeal with costs to the Respondent and uphold the decision of the subordinate court. Analysis and Determination: 28. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind 18

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that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & Another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited [1968] E.A 123. (1958) E.A page 424. 29. It is not in dispute that there existed a comprehensive policy of insurance No. P/A0816/0000240 christened Motor Advantage that was still valid at the time of the accident which occurred on 1st September 2012. It is also not in dispute that as a result of the accident two persons sustained fatal injuries one person being the driver of the subject motor vehicle and the other person being Mulwa Muli. The only issue in dispute is the capacity of the second person, Mulwa Muli, who at the time of reporting the accident to the Appellant, had been identified by the Respondent [through the Respondent’s authorized agent Cornelius Maingi (also an employee) as the turn boy. 30. The Appellant contends that as per information provided by the Respondent, Mulwa Muli (“deceased”) was his employee being a turn boy and is within its right to contractually avoid the claim. 31. The Appellant reiterated that the deceased was the Respondent’s employee and that the report of the accident as per the documents availed to court was made by the Respondent himself twice on two different dates being 6th September 2012 and again on 8th September 2012 showing the deceased to be a turn boy. 32. That the Respondent’s alleged representative one Cornelius was never availed to testify as a witness and the Respondent’s assertions that he was sick on the date of the accident or to explain to the court that indeed he made a mistake in indicating that the deceased was a turn boy instead of a passenger. The Appellant thus asserts that the 19

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Respondent was in breach of the policy of insurance and sought to avoid responsibility. 33. The Appellant through it’s legal officer Rovina Cherono Koskei produced copies of the following documents in support of its case:a) Copy of commercial vehicle insurance policy b) Copy of clauses attached to policy No. A0816/ 0000240/000/00 c) Copy of the renewal scheduled for the policy of insurance No. A0816/0000240/000/00 in respect of m/v reg No. KBN 103F covering the period from 12/5/2012 to 11/5/2013 d) Copy of motor accident form dated 6/9/2012 e) Copy of motor accident form dated 8/9/2012. 34. On the other hand, the Respondent’s maintains that the said deceased was never his employee but rather a third party who is comprehensively covered and an error in reporting the accident showing him to be an employee was explained vide a letter dated 15/11/2013 and is thus the duty of the Appellant to settle the claim as statutorily provided. The Respondent contends that the Appellant did not raise any of the defences available to it including repudiation of the statutory notice served upon it. That the Appellant is the one who insisted that the deceased in the primary suit was the Respondent's employee but did not avail any documentary evidence in support of the said claim. 35. The Respondent produced copies of the following documents in support of his case:a) National Identity card b) Demand letter c) Policy schedule contract d) Motor accident report form e) Receipt for payment of insurance cover. 20

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36. I have carefully perused and considered the record, the grounds of appeal, the rival submissions by the learned counsel for the parties, the judgement by the learned trial magistrate and the law. The pertinent issue for my determination is whether the deceased Mulwa Muli in Kithimani PMCC No. 74 of 2013 (primary suit) was an employee of the Respondent and whether being such an employee he was not covered by the policy between the parties herein. 37. A cursory perusal of the record shows that a valid decree exists in PMCC No. 74 of 2013 at the Chief Magistrate’s Court at Kithimani in favour of the Plaintiffs (Representatives of the Estate of Mulwa Muli, (deceased)) and against Patrick Munyao Kisingu (the Respondent herein) who is said to have been insured by the Appellant (primary suit). 38. It has been shown that the Appellant appointed the firm of Njeri Onyango & Co. Advocates to represent the Respondent in the primary suit but subsequently withdrew the instructions on the basis that the said passenger (deceased) was the Respondent’s employee. 39. The Respondent (Plaintiff) then filed the declaratory suit at Kithimani Chief Magistrate’s Court in CMCC No. 68 of 2019 seeking that the Appellant (Defendant) does settle the decretal sum to indemnify him insured/Defendant in the primary suit. Judgement was entered in favour of the Respondent with the Appellant being ordered to settle the decree in the primary suit thus necessitating this appeal. 40. The parties’ submissions as highlighted hereinabove replicate the summary of the declaratory suit the subject of this appeal hence I wish not to duplicate the same here. 41. As regards whether the deceased Mulwa Muli was an employee of the Appellant, this court observes the error/mistake by the Respondent’s agent was explained to 21

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the Appellant through the Respondent’s Advocates letter dated 21/10/2016 which the Appellant is said to have ignored and maintained that the deceased was an employee of the Respondent. Therefore, its the considered view of this court that the Respondent having explained the error/mistake in reporting the accident with regard to the deceased and having denied employing the deceased, the burden shifted to the Appellant to prove that indeed the deceased was employed by the Appellant. Unfortunately, the deceased’s death certificate is not on the record for the court’s perusal to establish and confirm the occupation of the deceased at the time of his death from the same. The Appellant would have been expected to engage their professional investigators to establish this critical issue but which they failed to do to disapprove the Respondent’s assertions on the same. 42. Section 4 and 5 of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya impose a duty on any person using a motor vehicle on the road to take out what is popularly known as Third Party Insurance cover that covers risks under Section 5 (6). Once such a Policy exists the insurer has a statutory duty under Section 10 of the Act to pay both, the principal sum, interests and costs awarded by the court in the primary suit. Such is the case in this suit, as the insurer is bound to pay sums notwithstanding the fact the insurer was entitled to cancel/avoid the policy. 43. That under Section 10(2), the Respondent needs to demonstrate and satisfy that:(a) The liability is covered under Section 5 (b) of the Act. (b) Judgment was obtained against the insured of the Defendant and it matters not that the insurer (Defendant) was entitled to avoid, cancel or may have avoided or cancelled the Policy. (c) No stay pending appeal had been obtained. 22

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(d) The Policy had not been cancelled by consent before the accident and the certificate of insurance returned and the commissioner of insurance notified of such cancellation within the stipulated period. (e) No declaratory orders were obtained declaring that the insurer should not pay and/or entitled to cancel/avoid the policy and such orders obtained in proceedings commenced before or within three (3) months of the primary suit. 44. Even where such declaration exists the Insurer must give a fourteen (14) days notice to the Plaintiff in the primary suit specifying the grounds upon which it wishes to get the declaration. 45. The grounds upon which such a declaration can be obtained are specific and restricted by the provisions of Section 10 (4) of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 Laws of Kenya. 46. In the case of AIG Kenya Insurance Co. Limited v Outsourced Professional Services Ltd (Civil Appeal E103S of 2022) [2024] KEHC 8229 (KLR) (Civ) (26 June 2024) (Judgment) the court had this to say;“In essence, repudiation of liability is two-fold, first, by way of giving notice to the Plaintiff in the primary suit, and secondly, by way of filing a declaratory suit. It is by following that process that the appellant would have pleaded that there was either a nondisclosure of material facts as regards to the cover on material claims, or there was a misrepresentation of a material fact. It then follows that pursuant to the above provisions, the appellant who was the insurer was required to settle the decretal amount as awarded and in accordance with the provisions of the Act”. 23

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47. Strict compliance with the Provisions of the Insurance (Motor Vehicle Third Risks) Act, Cap 405 Laws of Kenya was also buttressed by the Court of Appeal in Blueshield Insurance Company Ltd vs Raymond Buuri M'Rimberia (1998) eKLR where the Honourable Judges held that the duty to pay still obtained as long as no declaratory order had been obtained and the pending of such a suit filed do not construe a triable issue especially when the Insurer had not issued the notice to the claimant specifying the grounds for the intention to cancel or avoid the policy and/or the provision in Section 10 (4) of the Act. Such notice is mandatory. 48. The highlighted part in case law is as follows:"Although the Appellant did not plead in its defence in the enforcement suit, that it had already sued the insured in HCCC NO. 2976 OF 1986 for a declaration that it was entitled to avoid the policy and that the said suit was still pending. Mrs. Kiarie did say that in her Replying Affidavit hereinabove mentioned "can that allegation be a triable issue" we think not Under Section 10 (4) the liability of the insurer to satisfy the judgment under Section 10 (1) is excluded only if not only that the insurer had commenced an action within time scale prescribed thereunder, but also that it has obtained a declaration that it is entitled to avoid its liability under the insurance policy.” 49. In the instant case, the Appellant has failed to demonstrate that a declaration avoiding the policy of cover herein has been so far obtained through declaratory suit. 50. Moreover, there is no evidence that a mandatory notice as envisaged by the provisions to Section 10 (4) had been ever given to the Respondent. 24

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51. In Blueshield Insurance Company Ltd (supra), the court having observed compliance by the Respondent with the requirement of Section 10 (2) on statutory notice, existence of judgment and decree by the Plaintiff held:"There is ample evidence on record to verify that fact. There is also no denying that there was judgment and decree in favour of the Respondent arising from the accident. The Respondent complied with the requirement of Section 10 (1) of Cap 405, that is to say that the Appellant had been duly served with a copy of the Statutory Notice before the commencement of the court action and a copy of the decree showing that the Respondent had a valid decree against the Appellant after the suit was heard and determined. The Appellant out therefore to have satisfied the decree”. 52. The Honourable judge went further to note:"The Appellant contents that it is unwilling to settle the Respondent's claim on the basis that have been an employee of the insured and was insured in the course of his employment as such he was excluded by the provision to Section 5(6) of Cap 405. However, I note that and as correctly submitted by Mrs. Waweru learned counsel for the Respondent, the Appellant did not raise the issue of the Respondent having been an employee of the Appellant's insured and therefore not covered by the policy of insurance during trial clearly the issue is being raised in this appeal and is an afterthought. it ought to have been raised and canvassed before the trial court The Appellant has already stated that it did not tender any evidence during the hearing of the declaratory suit. The policy was not tendered as in evidence. It is therefore we do not have the benefits of its contents". 25

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53. The Court authoritatively concluded:"It does not appear to me therefore that Section 5 of Cap 405 does not in any way advance the Appellants case at all. If that were the case, one would have expected that the Appellant would have moved with alacrity and sued the Respondent under Section 10 of Cap 405 that the Respondent was not covered under policy of insurance it did not. Finally, Section 5 (b) (ii) of Cap 405 does not make express provisions for the protection of employees pursuant to a contract of service and I do not think that the provisions of the Act of parliament can be ousted by a policy cover". 54. Basing on the above analysis, application of statutory provision and case law taken into account, this court finds that the Appellant has a duty to pay the decretal sum in the primary suit and costs to the Respondent in this suit. 55. Accordingly, the appeal is dismissed. This filed is closed. 56. It is so ordered. RULING WRITTEN, DATED & SIGNED AT MACHAKOS THIS 17TH MARCH 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 17TH MARCH 2026 In the presence of : Mr. Kyalo hb for Mr.Mwihia for Respondent Mr. Ochieng for Appellant Milly-Court Asst 26

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