John Kithikii Kiluma v Trident Insurance Company Limited

7. This led to the filing of the Memorandum of Appeal dated 3rd July 2024 wherein the appellant raised the following grounds; 1) THAT the Honourable learned magistrate erred and misdirected herself in law and fact when she held that the appellant failed to prove liability against the respondent. 2) THAT the Honorable Magistrate erred in fact and law when she found that the respondent was not the insurer of motor vehicle registration number KAD 018E while there was the following grounds; sufficient evidence as per the police abstract. 3) THAT the learned Honourable Magistrate erred and misdirected herself when she failed to appreciate that the respondent had paid part of the decretal sum in the primary suit. 4) THAT the learned Honourable Magistrate erred and misdirected herself when she failed to find that the respondent did not file witness statement and list of documents sufficiently rebut evidence adduced by the appellant. 5) THAT the Honourable learned Magistrate erred and misdirected herself in law and fact when she dismissed the plaintiff's case with costs. 8. The appellant seeks the following orders; a. Judgment and decree in Milimani Commercial Courts Chief Magistrate Civil Case Number 9610 of 2019 dismissing the appellant's case against the respondent with costs be set aside and substituted for an order entering judgment for the appellant against the respondent on liability at 100%. b. The respondents do pay costs of this appeal and suit in lower court. 9. The court has looked at and reviewed the appellant’s submissions buttressing the grounds of appeal. The Respondent did not participate in the Appeal. Analysis; 10. The issues for determination is whether the appeal has merit and who shall bear the costs. 2|Page MILIMANI HCCAE795/2024

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11. This being a first Appeal, the court is enjoined to analyze and re-assess the evidence afresh and reach its own conclusions but always bearing in mind that it neither saw nor heard the witnesses testify. This position was affirmed in Selle v Associated Motor Boat Co. [1968] EA 123 and Kiruga v Kiruga & Another [1988] KLR 348 cases. 12. There is no doubt that the appellant was in a traffic accident that involved motor vehicle registration no. KAD 018E.There is further no doubt that he filed a suit and after hearing the primary suit that culminated in a judgment in his favour. 13. During hearing at the trial court, the Appellant produced a police abstract, that expressly identified Trident Insurance Company Limited as the insurer of the motor vehicle that caused the accident. The Respondent did not tender any evidence to the contrary. 14. In the case of APA Insurance Company Limited v Nyakweba (Civil Appeal E022 (22) of 2022) [2024] KEHC 407 (KLR) (25 January 2024) (Judgment) guided itself as follows; "Indeed, in APA Insurance Co. Ltd o George Masele [2014] eKLR Mabeya | held that a Police Abstract was enough evidence that there was a Policy of Insurance in force; that it is unreasonable to expect the injured victim to produce a certificate of insurance, given that he was not privy to the contract between the insured and the insurer; and that the details, as captured in the police abstract, are from the Certificate of Insurance affixed to a motor vehicle or supplied by the insured". 15. The court further notes that the after the judgment, the Respondent made a partial settlement of the decree of the sum of Kshs. 200,000 to the Appellant through cheque number 3082 dated 6th August 2019 leaving a balance of Kshs. 455,515.07. This in itself is an acknowledgement of the fact that it was had a duty to settle the claim. 16. The trial court should have invoked the doctrine of estoppel in compelling the Respondent to shoulder and pay the decretal sum100%.It did not. 17. This court is satisfied that the trial court fell into error when it failed to appreciate that the Respondent was under a duty to settle the claim given that it had insured motor vehicle registration KAD 018E as at the time of the accident and I so hold. 3|Page MILIMANI HCCAE795/2024

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Costs: 18. The Supreme Court in the case of Jashir Singh Rai & Others vs. Tarlochan Rai & Others observed that,” In the classic common law style, the courts have to proceed on a case-by-case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…” Determination; 19. This court is of the view that the appellant proved that the Respondent was under a duty to settle the entire decree. This court finds the respondent 100 % liable. Order; a. The Judgment and decree in Milimani Commercial Courts Chief Magistrate Civil Case Number 9610 of 2019 are hereby set aside and substituted for an order entering judgment for the appellant against the respondent on liability at 100%. b. The Respondent shall bear the costs of this appeal and suit in lower court Judgment On 9th July 2007 the plaintiff was involved in an accident with motor vehicle registration number KAD 018E as a consequence of which he sustained severe bodily injuries and suffered loss and damage. Dated, Signed and Delivered at Virtual Eldoret this 2nd day of July 2026. …………………………………….. J. CHIGITI (SC) JUDGE 4|Page MILIMANI HCCAE795/2024

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