kemc-2026-00675

the motor vehicle was involved in a road accident on 25 th March 2021 along Bungoma – Chwele road, leading to the death of Wycliffe Musambali Wamalwa (‘the deceased’), who was riding a motorcycle registration number KMFH 083 T at the time of the accident. 4. The insured further pleaded that the accident led the deceased’s estate to file a suit against him vide Bungoma Chief Magistrate’s Court Civil Suit No. E241 of 2021 (‘the primary suit’), where the deceased’s estate was awarded Kshs. 1,356,758/=. The insurer paid part of the decretal sum, leaving a balance of Kshs. 872,093/=, which remains unpaid to date, hence this declaratory suit. 5. The insurer neither entered appearance nor filed a Statement of Defence despite having been served with the Plaintiff’s pleadings and the Summons To Enter Appearance. 6. Consequently, an interlocutory judgment was entered against the insurer. This matter was thereafter fixed for formal proof for the insured to prove his case on a balance of probabilities. EVIDENCE Plaintiff’s Case 7. PW1 Albert Okiya Wakutayi adopted his witness statement dated 21 st May 2025 as his evidence in chief. He also produced the Certificate of Insurance No. B11642841 (Pexh.1) and the judgment in the primary suit (Pexh.2) as exhibits. Plaintiff’s Written Submissions 8. The Plaintiff’s counsel took directions before this court on the filing of written submissions. However, the Plaintiff did not file the said written submissions. ANALYSIS AND DETERMINATION

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9. This court has given due regard to the pleadings and the evidence on record. This matter was heard through formal proof. 10. It is trite law that the legal burden of proof lies with the person who alleges. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya, reiterates this legal principle as follows: ‘’Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.’’ 11. In Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR, it was stated that a Court should not take a Plaintiff’s case as truthful without interrogation for the reason only that it is uncontroverted. 12. Similarly, in Kirugi and Another Vs Kabiya & 3 others (1987) KLR 347, the Court of Appeal held that; “The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a Plaintiff of the duty to prove the case to the required standard.” 13. The common thread running through the authorities above is that the Plaintiff, even in the absence of evidence to the contrary by the Defendant, like in the instant case, is duty-bound to prove his case on a balance of probabilities. 14. It is against this backdrop that this court finds and holds that the only issue for determination is whether the insured has proved his case on a balance of probabilities. 15. The judgment in the primary suit placed before this court by the insured proved on a balance of probabilities that judgment was entered against the insured in the primary suit for a sum of Kshs. 1,356,758/= arising

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from a road accident which occurred on 25 th May 2021 along Bungoma – Chwele road involving the insured’s motor vehicle and the deceased. 16. The insured also placed before this court a Certificate of Insurance No. B11642841 issued by the insured showing that the Third-Party Insurance cover he had taken out for his motor vehicle was to run from 23rd June 2021 to 22nd June 2022. 17. The duty of the Insurance Company (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. 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 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. 18. It is abundantly clear from the authority above that the insurer can only be called upon to satisfy a decree against their insured if such a decree arises from a risk that the insurer was covering during the pendency of the insurance contract between the insurer and the insured. 19. The accident in the primary suit took place on 25 th May 2021. Clearly, the accident in the primary suit occurred before the insurer covered the insured’s motor vehicle.

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20. In the circumstances, the insurer cannot be called upon to indemnify the insured for a risk that attached before the commencement of the insurance contract between the insurer and the insured. DETERMINATION 9. The upshot of the foregoing is that this suit is dismissed with no order as to costs. 10. Judgment accordingly. 11. File closed Reviewed, signed, and delivered in open court at Bungoma this 26th day of February 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: C/A: Mr. Rioba

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