Britam General Insurance Ltd v Naomi Kemunto Bosire

the present declaratory suit seeking payment of the decretal sum together with costs and interest. 2. The Appellant filed a Statement of Defence dated 18 th September 2023 admitting that it had issued the insurance policy but denying liability. It denied knowledge of the accident, denied that it had been served with the statutory notice or notice of institution of the primary suit, denied knowledge of the judgment obtained against the insured and contended that the insured had breached the terms of the insurance policy by failing to disclose material facts and by failing to maintain the insured motor vehicle in a roadworthy condition. It therefore maintained that it was not liable to indemnify the insured or satisfy the decree. 3. Upon considering the pleadings, the oral and documentary evidence and the parties' submissions, the learned trial magistrate entered judgment in favour of the Respondent and declared that the Appellant was liable to satisfy the decree issued in Nyamira MCCC E088 of 2022 together with costs and interest. Dissatisfied with that decision, the Appellant lodged the present appeal. 4. In the Amended Memorandum of Appeal dated 23rd May 2025, the Appellant challenges that decision on the grounds that the learned trial magistrate erred in holding it liable to satisfy the decree; failed to consider the evidence demonstrating

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breach of the insurance policy; failed to consider evidence that the insured motor vehicle was mechanically defective before the accident; failed to consider the Appellant's written submissions; and failed to apply the applicable legal principles and binding authorities governing the liability of insurers under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act. 5. As this is a first appeal, this Court is required to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. That duty was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the former Court of Appeal for East Africa held that a first appellate court must subject the evidence to fresh and exhaustive scrutiny before reaching its own independent conclusions. 6. Having considered the Record of Appeal, the Supplementary Record of Appeal, the rival submissions and the authorities cited by the parties, the appeal substantially turns on whether the Respondent satisfied the statutory requirements for invoking section 10 of the Insurance (Motor Vehicles Third Party Risks) Act and whether the Appellant established any valid ground for avoiding liability under the insurance policy.

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7. In written submissions dated 11th May 2026, the Appellant contended that the learned trial magistrate erred in holding it liable to satisfy the decree. It argued that the Respondent failed to comply with the statutory notice requirements prescribed under section 10(2)(a) of the Insurance (Motor Vehicle Third Party Risks) Act and further maintained that the insured had fundamentally breached the insurance policy by failing to maintain the insured motor vehicle in a roadworthy condition and by failing to disclose material facts. It therefore urged the Court to allow the appeal, set aside the judgment of the subordinate court and dismiss the Respondent's suit. 8. In written submissions dated 10th June 2026, the Respondent opposed the appeal and maintained that the evidence adduced before the trial court established compliance with all the statutory requirements under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act. The Respondent further submitted that the Appellant failed to prove any breach of the insurance policy capable of relieving it of liability and urged the Court to dismiss the appeal with costs. 9. Having considered the Record of Appeal, the Supplementary Record of Appeal, the rival submissions and the judgment of the trial court, the issues falling for determination are:

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1) Whether the Respondent satisfied the statutory requirements under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act. 2) Whether the Appellant established any lawful basis for avoiding liability under the insurance policy. 3) Whether the appeal is merited. 10. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. That duty was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the former Court of Appeal for East Africa held that a first appellate court must subject the evidence to fresh and exhaustive scrutiny before reaching its own conclusions. 11. The Respondent's claim is founded upon the statutory obligation imposed by section 10 of the Insurance (Motor Vehicle Third Party Risks) Act rather than upon the insurance contract itself. The Court must therefore first determine whether the statutory conditions giving rise to that obligation were satisfied before considering whether the contractual

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breaches alleged by the Appellant are capable of defeating the Respondent's claim. 12. Whether the statutory notice was issued and served is a question of fact to be determined from the evidence on record. In Karatina Garments Ltd v David Nyanarua [1976] KECA 11 (KLR) the Court held that where service is disputed, the court must evaluate the evidence before it to determine whether service has in fact been proved. It is therefore insufficient for either party merely to assert or deny service; the issue must be resolved by reference to the evidence presented. 13. Having reviewed the record, I find that it is common ground that the Appellant 564/800/1/002386/2021/01 Registration No. KCX in 218U issued respect and that of Policy Motor the No. Vehicle Respondent subsequently obtained judgment against the insured in Nyamira MCCC E088 of 2022. The dispute therefore narrows to whether the Respondent complied with the statutory notice requirements and whether the alleged breaches of the policy relieved the Appellant of its statutory obligation to satisfy the decree. 14. The statutory prerequisites for imposing liability upon an insurer under section 10 were summarized in Ndumia

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(Suing as the Administrator of the Estate of William Ndumia Wanjohi (Deceased)) v Invesco Assurance Company Limited [2025] KEHC 16028 (KLR) where the Court held that a claimant must establish that the insurer issued the relevant policy, judgment was obtained against the insured, the statutory notice contemplated by the Act was served upon the insurer, and the judgment relates to a liability covered by the policy. Those requirements provide the framework for determining this appeal. 15. The documentary evidence produced before the trial court included the insurance policy, the statutory notice, the notice of institution of the primary suit and the decree issued in Nyamira MCCC E088 of 2022. Although the Appellant denied receipt of the statutory notice, it did not demonstrate that the documents produced by the Respondent were inadmissible, unreliable or otherwise incapable of proving compliance with the statutory requirements. The learned trial magistrate was therefore entitled to accept that evidence, and I find no basis for interfering with that finding. 16. I am therefore satisfied that the Respondent established the statutory prerequisites necessary to invoke section 10 of the Insurance (Motor Vehicle Third Party Risks) Act.

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17. The Appellant further contended that the insured breached the insurance policy by failing to maintain the insured motor vehicle in a roadworthy condition and by failing to disclose material facts relating to the accident. It relied on the assessor's report dated 11th February 2024 and the investigator's report attributing the accident to mechanical defects and reckless driving. 18. Insurance contracts are contracts of utmost good faith. In Madison Insurance Company Ltd v Solomon Kinara t/a Kisii Physiotherapy Clinic [2004] KECA 162 (KLR), the Court recognized that insurance contracts are founded upon the doctrine of uberrimae fidei, requiring parties to disclose material facts. Likewise, Lucena v Crawford (1806) 2 Bos & Pul NR 269 and Anctil v Manufacturers Life Insurance Company [1899] AC 604 underscore that insurance contracts derive their validity from the existence of an insurable interest and faithful observance of the obligations imposed by law and by the policy. However, those authorities regulate the contractual relationship between an insurer and its insured and do not, without more, defeat the independent statutory obligation imposed upon an insurer under section 10 in favour of an innocent third-party judgment creditor.

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19. The Appellant also relied upon the alleged failure to serve the statutory notice. In Peter N. Kinyari v William O. Matendechere & another [2019] KEHC 5294 (KLR), the Court held that compliance with section 10(2)(a) is a mandatory precondition where an insurer seeks to rely upon the statutory defence. Equally, the insurer bears the burden of proving the factual basis upon which that defence is invoked. In the present case, having evaluated the evidence on record, I am not persuaded that the Appellant discharged that burden. 20. Consequently, while contractual breaches may entitle an insurer to pursue appropriate remedies against its insured, they do not automatically extinguish the statutory rights conferred upon a third-party judgment creditor unless the insurer establishes one of the statutory exceptions recognized under the Act. The Appellant failed to do so. 21. I have also considered the complaint that the learned trial magistrate failed to consider the Appellant's written submissions. The impugned judgment identifies the issues in dispute, evaluates the evidence adduced by both parties and gives reasons for the conclusions reached. A court is not obliged to reproduce every submission or discuss every authority cited by counsel provided that the issues arising for determination have been properly addressed.

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22. the Upon evaluation of the entire record, I am satisfied that Respondent established the factual and statutory foundation of her claim under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act. Conversely, the Appellant failed to establish either non-compliance with the statutory notice requirements or any contractual breach capable of relieving it of the statutory obligation imposed by that provision. 23. I therefore find that none of the grounds contained in this appeal has merit. Consequently, the appeal is dismissed and the Judgment and Decree delivered in Nyamira MCCC E223 of 2023 on 21 st November 2024 in are hereby affirmed. 24. Costs follow the event under section 27 of the Civil Procedure Act. As the Respondent has successfully defended the appeal and there is no reason to depart from the general rule, the Appellant shall bear the costs of the appeal. DELIVERED AT NYAMIRA THIS July 2026 WAMAE.T. W. CHERERE JUDGE Appearances 30th DAY OF

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Court Assistant - Hilda For Appellant - Ms. Anyango for AKO Advocates LLP For Respondent - Ms. Nasongo for T.O. Nyangosi & Co. Advocates

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