Njagi (Suing Through His Next Friend David Mutembei) v Trident Insurance Company Ltd (Civil Case E066 of 2025) [2025] KEMC 376 (KLR)

In answering the 1st and 2nd issues, this court refers to Section 10 (1) of the Insurance (Motor Vehicle Party Risks) Act as reproduced below: 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. (emphasis mine) Under the above provision it is evident that an insurer has a statutory duty to meet the requirements of a judgment including costs and interest as awarded for a policy under Section 5 (b) of the Act. Needless to say, Section 5 (b) of the Act envisions liability where there is death or bodily injury to a person arising out of the use of a motor vehicle on the road except, an employee of the insured, or other passengers who have not hired or have not paid a reward. Before finding an insurance company liable, this Court has to ensure that the factors under Section 10 (2) (a) to (c) have been met. In a nutshell the said factors are that:a. The insurance company was served with a notice either 14 days before the commencement of the proceeding or 14 days after the commencement of the proceedings; b. That there is a judgement against the insured; c. The execution of judgment has not been stayed pending an appeal; and d. The policy was not cancelled by mutual consent or in the manner provided in 10 (2) (c), that is, a statutory declaration by the insurer that the certificate was lost or destroyed, the certificate was surrendered and the insurer notified the registrar of motor vehicles that a certificate has not been surrendered. The Court has to further satisfy itself that the insurer has not received a declaration under section 10 (4) of the Act that it is entitled to avoid the policy.

page 2 of 4

Having considered the evidence tendered by the Plaintiff, this court is satisfied that by way of the copy of the decree and certificate of costs in the primary suit produced that there is indeed in place a judgement. Notably, there is no evidence that the said judgment has been stayed pending an appeal. The Plaintiff filed a police abstract. I find within the Abstract from the Police dated 18 th August 2022 that indicates the Defendant herein was the insurer of the motor vehicle which was the subject of the primary suit and also indicated the policy number as 080/816/1/012345/201. Moreover, the police abstract also indicates the commencement and expiry of the said insurance policy which indicates that the cover was valid at the time of the incident. The cover was to run from 15/5/2019 to 14/5/2020. The accident occurred on 30th January 2020. The same evidence was not only uncontroverted but is also allowed and the Court relies on the determination in APA Insurance Co Ltd vs George Masele 2014 eKLR where Justice Mabeya held that the details in the Police Abstract as to the details of insurance are in the ordinary cause of events obtained by the police from the Certificate of Insurance affixed to the motor vehicle or are supplied by the insured. Lastly, the Court has noted that the Plaintiff has provided a statutory notice dated 20/03/2020 to this Court and that the same was served upon the Respondent by way of email. The Court deems it as proper service. In any case the evidence is uncontroverted therefore the same shall stand as proper service. The import of the above provision of the law is that for liability to accrue under section 10 of the Insurance (Motor Vehicle Third Party Risks) Act CAP 405, there is a 4-fold test to be met. Firstly, that the motor vehicle in question was insured by the appellant; Secondly, that the respondent has a judgement in his favour against the insured; Thirdly, that statutory notice was issued to the insurer either at least 14 days before the filing of the suit wherein judgement has been obtained or within 30 days of filing the suit where judgement has been obtained and finally the respondent was a person covered by the insurance policy. To this end, the Court is guided by the determination in Roseline Violet Akinyi v Celestine Opiyo Wangwau (2020) eKLR and Stephen Kiarie Chege v Insurance Regulatory Authority & Another (2009) eKLR.

page 3 of 4

Therefore, the Court notes that all the requirements were met and his Court finds that the Plaintiff has sufficiently proved all the elements for the Court to grant the prayers sought for a declaration that the Plaintiff pay the decretal sum in Chuka CMCC E070 OF 2020. Orders Accordingly, for the reasons set out above, and pursuant to the provisions of Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, this court hereby declares that the defendant is liable to satisfy the decree arising from the primary suit together with interest from 13/02/2023 and costs are hereby awarded to the Plaintiff with interest form the date of filing of the suit. This is the order of this Court. Dated and delivered virtually at Chuka Law Courts by Tracy Wanjiku Wachira (RM) this 11th day of November 2025. In virtual court in the presence of Counsel for the Plaintiff Kelvin Mawera- Court Assistant

page 4 of 4