JMK (Minor suing through his mother JMK) v Directline Assurance Company Limited (Civil Case E007 of 2025) [2025] KEMC 363 (KLR)

Defendant’s Case 3. The Defendant entered an appearance and filed a statement of defence denying liability to satisfy the judgment. It denied knowledge of the accident and denied being served with a statutory notice. The Defendant did not call any witnesses to support its defence. 4. The parties were directed to file written submissions. The Plaintifi filed their submissions dated 12th September 2025. At the time of writing this judgment, the Defendant had not filed any. Analysis and Determination 5. 6. Having considered the pleadings, evidence, and the Plaintifi’s submissions, the following issues arise for determination: i. Whether the Defendant was the insurer of motor vehicle KTWC 429N at the material time; ii. Whether statutory notice under Section 10(2) Cap 405 was duly served; iii. Whether the Defendant is bound to satisfy the judgment and decree in Machakos SCC No. E325 of 2023. Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act provides: “ (1) If, after a policy of insurance has been efiected, judgment in respect of any such liability as is require to be covered by a policy under paragraph (b) of Section 5 (being 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… (2) No sum shall be payable by an insurer under the foregoing provisions of this section In respect of any judgment, unless before or within fourteen days after the commencement of the proceedings in which judgment was given, the insurer had notice of the bringing of the proceedings… (4) No sum shall be payable by an insurer under the foregoing provisions of this section if in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy he is entitled to avoid it on the ground that it was obtained by the nondisclosure of a material fact, or by a representation of fact which was false in some material particular, or, if he has avoided the policy on that ground, that he was entitled so to do apart from any provision contained herein.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/363/eng@2025-12-19 2

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7. The court interpreted this principle in 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 held that: “ In essence, repudiation of liability is two-fold, first, by way of giving notice to the Plaintifi in the primary suit, and secondly, by way of filing a declaratory suit. However, the said repudiation is not a blanket one, requiring to be done whenever an insurer has been served with a notice. This court finds that the requirement for an insurer to file a declaratory suit is intended for only those liabilities for which is entitled to repudiate and/or avoid for reasons beyond the express provisions of the policy, specifically being that there was non-disclosure of material fact.” 8. On what constitutes a statutory notice, I rely on Kimani Gikonyo vs Getaway Insurance Company Limited [2007] eKLR, where the Court expounded on what a statutory notice is and how the insurance company ought to receive the same and held as: “ So, what form should a notice take? It simply does not matter. A notice is a notice. The main purpose of a notice is to alert the insurer of a potential claim, a potential liability, so that the insurer can take steps to protect its interest by defending the action, investigating the same, attempting to settle the same and doing anything it wants to in order to protect its rights and interests. The notice need not be in any particular format.... Any notice, howsoever given as long as it suficiently outlines the happening of an event giving rise to a claim under the insurance policy, is good notice under the Act..." 9. In Ngiri v Africa Merchant Assurance Co. Ltd [2022] KEHC 21 (KLR) (13 January 2022), the court stated: “ 18. All said and done the ideal document to have proved that the respondent was the insurer would have been the Certificate of Insurance but the appellant was a mere passenger and was not a party to the insurance contract hence would not have such a document in his possession; the only document the appellant had to support his claim was the Police Abstract, the same was produced at trial and no objection was raised by the respondent and despite being given an opportunity to be heard and to ofier evidence in rebuttal or to challenge the document the respondent chose otherwise;…” 10. On the first issue, the Plaintifi stated that the subject vehicle was insured by the Defendant under policy number 00xxxxxx4(T.P.O). The document the Plaintifi relied on to prove the existence of the policy was a police abstract. The police abstract indicates that a valid insurance policy was in force. Before filing the primary suit, the Plaintifi issued a statutory notice to the Defendant. A demand letter was also sent. There is no evidence that the insurer notified the Plaintifi of any intention to deny liability. The Defendant did not file a declaratory suit seeking orders that it was entitled to avoid liability or that it had cancelled the policy. 11. Further to this, the Defendant has failed to provide evidence to refute the Plaintifi’s claim. Consequently, there are no grounds to find fault with the Plaintifi. This aligns with the case of Linus Nganga Kiongo & 3 others v Town Council of Kikuyu [2012] eKLR, which cited Motex Knitwear Limited v Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002. In that case, https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/363/eng@2025-12-19 3

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the court afirmed Autur Singh Bahra & another v Raju Givindi, HCCC No. 548 of 1998, stating the following: “ Although the Defendant has denied liability in an amended Defence and counter-claim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintifi’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counterclaim must fail.” 12. Having said that, I am persuaded that the Plaintifi has proved that the Defendant had insured the motor vehicle registration KTWC 429N at the time of the accident, and that there was valid insurance cover. I therefore enter the following judgment: a. A declaration that the Defendant is liable to pay the decretal sum in the Machakos Small Claims Court No. E325 of 2023, amounting to Kshs. 206,624, together with accruing interest from the date of the decree until full settlement. b. The Defendant will also bear the costs of this suit and interest at court rates. DELIVERED ELECTRONICALLY, SIGNED, AND DATED THIS 19TH DAY OF DECEMBER 2025. HON. C.C. OLUOCH CM There shall be a 30-day stay of execution. Signed by: HON. CHARITY OLUOCH https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/363/eng@2025-12-19 4

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