Masokho v Africa Merchant Assurance Company Limited (Civil Case E134 of 2025) [2026] KEMC 624 (KLR)

4. The Plaintiff added that he sued the insured vide Bungoma CMCC CC No. E300 of 2023 (“the primary suit”), where a judgment was delivered in his favour on 11th October 2023 for a sum of Kshs. 752,840/= plus costs and interest. 5. The Plaintiff averred that the judgment delivered in the primary suit was in respect of liability covered by the insurer under section 10 (1) of the Insurance Act, which the insurer was obligated to satisfy. He added that the insurer declined to settle the decretal sum in the primary suit, hence this suit. 6. The insurer filed an amended Statement of Defence dated 29 th December 2025 denying having insured the insured motor vehicle at the time of the accident in the primary suit. The insurer also averred that the Plaintiff had not served them with the notice of institution of the primary suit. 7. The insurer urged this court to dismiss this case with costs. 8. It is against this backdrop that this court set down this matter for hearing for the parties herein to prove the allegations in their respective pleadings. EVIDENCE Plaintiff’s Case 9. PW1 No. 76835 PC Isaac Kimani Njuguna of Bungoma Police Station produced a police abstract dated 16 th February 2023 showing that the insured motor vehicle was involved in a road accident on 27 th June 2022 at around 0730hrs along Bungoma – Sang’alo murram road with motorcycle registration number KMET 822 N that the Plaintiff was driving. 10. He added that the information obtained by the accident’s investigations officer from the insured motor vehicle’s certificate of insurance showed that the insurer had insured the insured motor vehicle at the time of the accident.

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11. He further stated that the insured motor vehicle’s insurance cover was to expire on 06th December 2023. 12. PW2 Asween Juma adopted his witness statement dated 27 th March 2025 as his evidence in chief. His testimony was largely a regurgitation of his averments in the Plaint herein. He also produced the documents in his list of documents herein as exhibits. 13. In cross-examination, he stated that he was aware that his advocate had issued a notice to the insurer in the primary suit and that his advocate had informed the insurer about the judgment in the primary suit. Defendant’s Case 14. The Defendant did not call any witnesses to substantiate the averments in their Statement of Defence. The court in Kenya Power & Lighting Co Ltd v Rassul NzembeMwadzaya [2020] eKLR, stated as follows on the consequence of a party failing to call witnesses to substantiate the averments in their pleading: “Since no evidence was adduced in support of the defence case, the defence on record therefore remained as a mere allegation. This is the position in law and was restated in the case of Edward Muriga through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No.23 of 1997, where the Court of Appeal stated: “In this matter, apart from filing its statement of defence, the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations.” 15. Guided by the authority above, it follows that the averments in the Defendant’s Statement of Defence on record are mere allegations which this court will not consider in determining this case.

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ANALYSIS AND DETERMINATION 16. This court has duly considered the evidence led by the parties herein, their respective submissions, as well as the authorities relied upon. 17. It is this court’s humble view that the only issue for determination is whether the insurer should satisfy the decretal sum in the primary suit. Whether the insurer should satisfy the decretal sum in the primary suit 18. A perusal of the primary suit’s court file produced by the Plaintiff herein as an exhibit shows that the Plaintiff in the said suit produced a copy of a certificate of insurance showing that at the time of the accident, the insured motor vehicle had been insured by the insurer vide an Insurance Policy No. AM30701006615200905 (TPO), which was valid from 07th January 2023 to 06th December 2023. 19. The accident giving rise to the primary suit occurred on 27 th June 2022. Clearly, at the time of the accident giving rise to the primary suit, the insured motor vehicle was not insured by the insurer. 20. It would appear that it was only after the accident in the primary suit that the owner of the insured motor vehicle insured the said motor vehicle through the insurer’s insurance policy, which was to run from 07th January 2023. 21. The duty of the insurers to satisfy or settle decrees against their insured is a statutory duty which stems from Sections 10(1) and (2) of the Insurance (Motor Vehicle Third Party Risks) Act (“the Act”). Section 10 of the Act provides: 10. Duty of insurer to satisfy judgments against persons insured If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a

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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. 9. In The Great Insurance Company of India Ltd –vs- Lilian Everlyn Cross and Another [1966] E.A 90, 97, Newbold V.P sitting at the Court of Appeal held as follows concerning the applicability of Section 10 of the Act: “It is submitted on behalf of the insurer that this section only applies where the liability is covered by the terms of the policy and that in this case no liability arose under the policy for any injury caused by a disqualified driver. I accept that this section only applies where both the liability is required under Section 5(b) to be covered by a policy and the liability is in fact covered by the terms of the policy.” (Emphasis added) 10. The authorities above reveal that an insured can only be called upon to satisfy a decree under section 10 of the Act where the liability covered under the insurance contract between them and their insured attaches during the pendency of the insurance contract between them and their insured. 11. This does not mean in any way that when the insured is ordered to pay damages during the pendency of an insurance contract between him and their insurer, yet the accident or the liability giving rise to the judgment against them occurred before the commencement of the

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insurance contract, the insurer is required to settle such damages due from their insured. 12. The above is grounded on the fact that, generally speaking, insurance contracts are not retrospective. An insurance contract is only valid from its commencement date, with the consequence that an insured or a decree holder cannot purport to force an insurer to cover past risks or liabilities. 13. Having stated earlier on in this judgment that the insured motor vehicle did not have a valid insurance policy issued by the insurer at the time of the accident giving rise to the primary suit, it follows that the insured cannot be called upon to settle the decree in the primary suit. 14. This court profusely apologizes to the parties herein and their counsel, given that the terms of this judgment differ from the terms of the judgment delivered by this court virtually on 31st March 2026. 15.The judgment delivered by this court on 31 st March 2026 was delivered on the strength of an illegible copy of the certificate of insurance placed in the court file showing that the insured motor vehicle’s insurance cover issued by the insurer was to commence from 07 th January 2022 instead of 07 th January 2023 as seen from the clear certificate of insurance uploaded by the Plaintiff on the CTS platform. 16.When the above slip of the pen came to the attention of this court during uploading of this judgment on the CTS platform, this court deemed it fit to review this judgment suo moto under section 99 of the Civil Procedure Act. DETERMINATION 17. The upshot of the foregoing is that this suit is dismissed with costs to the Defendant. Reviewed in chambers at Bungoma, this 01st day of April 2026 T.O. OMONO

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SENIOR RESIDENT MAGISTRATE In the presence of: C/A: Mr. Rioba

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