Margaret Adhiambo Koi v Kenya Alliance Insurance Company Limited

5) The Plaintiff pleaded that Motor Vehicle Registration Number KMCJ 364 T was owned by King Bird (K) Limited and was insured by the Defendant under Policy No. RO6/MYO42424. 6) The Plaintiff further pleaded that the liability arising from the accident was a liability required to be covered under section 5(b) of the Insurance (Motor Vehicles Third Party Risks) Act, Cap. 405, and that the Plaintiff was a person entitled to the benefit of the policy. 7) Following the accident, the Plaintiff instituted proceedings against King Bird (K) Limited, the owner of the Motor Vehicle, in Nakuru CMCC No. 677 of 2012. 8) The said proceedings were heard and determined and Judgment was entered against the insured on 22nd May, 2017. The Plaintiff pleaded that the Judgment remained unsatisfied and consequently instituted the present proceedings against the Defendant as the insurer of the Motor Vehicle. 9) The Plaintiff's claim against the Defendant is for the sum of Kshs. 374,216.22, together with costs and interest. THE DEFENCE 10) The Defendant filed a Defence denying liability and put the Plaintiff to strict proof of the allegations contained in the Plaint. 11) The Defendant disputed its liability to satisfy the Judgment and relied on the terms and limits of the insurance policy and the provisions of the Insurance (Motor Vehicles Third Party Risks) Act, Cap. 405. 12) The Defendant also contended that the Plaintiff was required to establish the necessary statutory requirements before the Defendant could be compelled to satisfy the Judgment obtained against its insured. HEARING 13) The Plaintiff called PW1, Margaret Adhiambo Koi, who testified in support of the Plaintiff's case. 14) PW1 adopted her witness statement as her evidence-inchief. She further produced the documents contained in the Plaintiff's list of documents, which were admitted in evidence and marked (Plaintiff's Exhibits 1–6).

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15) In her evidence, PW1 reiterated the circumstances surrounding the accident of 16th September, 2010, the involvement of motor vehicle registration number KMCJ 364 T, and the injuries sustained as a result of the accident. 16) PW1 further testified regarding the proceedings instituted against King Bird (K) Limited in Nakuru CMCC No. 677 of 2012, the judgment entered therein and the failure to satisfy the decretal sum. 17) It was PW1's evidence that the Defendant was the insurer of Motor Vehicle Registration Number KMCJ 364 T and that the Plaintiff was entitled to enforce the judgment against the Defendant pursuant to the provisions of the Insurance (Motor Vehicles Third Party Risks) Act. 18) The Plaintiff relied on the documents produced as [P Exhibits 1–6] in support of her case. 19) The Defendant was afforded an opportunity to challenge the Plaintiff's evidence and to present its case. 20) The Defendant was directed to file its submissions by 9th September ,2026. The Defendant did not file its submissions within the period granted by the Court. 21) The failure to file submissions does not, in itself, relieve the Plaintiff of the burden of proof. The Court has therefore considered the pleadings, the evidence of PW1, the documentary evidence and the applicable law. ANALYSIS AND DETERMINATION 22) From the pleadings and evidence, the following issues arise for determination: a) Whether Motor Vehicle Registration Number KMCJ 364 T was insured by the Defendant; b) Whether judgment was entered against the Defendant's insured in Nakuru CMCC No. 677 of 2012; c) Whether the judgment related to a liability contemplated under section 5(b) of the Insurance (Motor Vehicles Third Party Risks) Act; d) Whether the statutory requirements for enforcement of the judgment against the Defendant were satisfied; e) Whether the Defendant is liable to satisfy the judgment obtained against its insured; and f) Who should bear the costs of the suit. Whether the Defendant insured the Motor Vehicle

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23) The Plaintiff's case is that motor vehicle registration number KMCJ 364 T was insured by the Defendant under Policy No. RO6/MYO42424 at the material time. 24) The Plaintiff relied on the documentary evidence produced as [P Exhibits 1–6] in support of that assertion. 25) The law places the initial burden upon the Plaintiff to establish the facts upon which the claim is founded. Once sufficient evidence is adduced, the evidential burden may shift to the Defendant, particularly where the relevant information is within the Defendant's special knowledge. 26) In Munyoki v Kenya Orient Insurance Company Limited [2026] KEHC 2671 (KLR), the High Court considered a substantially similar declaratory claim where the insurer denied having insured the motor vehicle. The Court held that where the claimant produced evidence indicating the insurer and policy particulars, and the insurer merely issued bare denials without producing evidence to rebut that material, the evidential burden shifted to the insurer. 27) Similarly, in Directline Assurance Company Limited v Waithera [2024] KEHC 2720 (KLR), the Court considered evidence concerning the insurer and policy particulars and observed that an insurer seeking to dispute liability must adequately controvert the evidence relating to the existence of the policy. 28) In the present case, the Plaintiff placed before the Court documentary evidence identifying the Defendant as the insurer of motor vehicle registration number KMCJ 364 T. The Defendant did not place before the Court sufficient evidence demonstrating that the vehicle was insured elsewhere, that the policy was non-existent or that the policy had ceased to be effective at the material time. 29) I therefore find, on a balance of probabilities, that motor vehicle registration number KMCJ 364 T was insured by the Defendant at the material time. Whether judgment was obtained against the insured 30) The Plaintiff's evidence is that she instituted Nakuru CMCC No. 677 of 2012 against King Bird (K) Limited, the owner of the Motor Vehicle. 31) The evidence before the Court establishes that judgment was entered against the insured on 22nd May 2017.

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32) The Plaintiff further established that the judgment remained unsatisfied, thereby necessitating the present proceedings against the insurer. 33) A declaratory suit of this nature is intended to enforce the statutory obligation of an insurer to satisfy a judgment obtained against its insured. In Kenya Orient Insurance Limited v Otieno [2024] KEHC 7637 (KLR) , the High Court described a declaratory suit in this context as one seeking to compel The Judgment Debtor's insurer to settle the decree passed against the insured. 34) The Court therefore finds that the Plaintiff has established the existence of a valid judgment against the Defendant's insured in Nakuru CMCC No. 677 of 2012. a. Whether the judgment relates to a liability contemplated under section 5(b) 35) Section 5(b) of the Insurance (Motor Vehicles Third Party Risks) Act requires a policy of insurance to cover liability arising from the death of or bodily injury to a person caused by or arising out of the use of the insured motor vehicle on a road, subject to the statutory exceptions and limits. 36) Section 10(1) of the Act provides, in substance, that where judgment is obtained against a person insured by a policy in respect of a liability required to be covered under section 5(b), the insurer is, subject to the provisions of the section, required to satisfy the judgment. 37) The Court of Appeal and the High Court have repeatedly distinguished between claims for bodily injury or death, which fall within the statutory scheme, and claims for material damage, which do not ordinarily give rise to a declaratory action under section 10. 38) In Madison General Insurance Kenya Ltd v Sadera [2024] KEHC 13547 (KLR), the High Court, citing David Kinyanjui & 2 Others v Meshack Omari Monyori [1998] KECA 104 (KLR), reiterated that section 5(b) covers claims relating to physical injuries or death arising from the use of the motor vehicle, and that the statutory right to pursue an insurer by way of a declaratory suit arises in respect of such liabilities. 39) The present claim concerns bodily injuries sustained by the Plaintiff while travelling as a passenger in motor vehicle registration number KMCJ 364 T. It therefore falls within the

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category of liability contemplated under section 5(b) of the Act. 40) I accordingly find that the judgment obtained against the insured arose from a liability required to be covered under section 5(b) of the Act. a. Whether the statutory requirements were satisfied 41) Section 10(2) of the Act sets out circumstances in which an insurer may resist liability to satisfy a judgment. Among the relevant requirements is notice to the insurer of the proceedings in which the judgment was obtained. 42) The Plaintiff's case is that the Defendant was notified of the proceedings and of the intention to enforce the Judgment against it. 43) The Plaintiff relied on the documents produced as [P Exhibits 1–6] in support of her claim. 44) The Defendant did not call evidence to demonstrate that it lacked notice of the proceedings or that the statutory requirements had not been complied with. 45) The importance of compliance with section 10(2) has been recognised in a number of decisions. In Owuor v Kenya Orient Insurance Company Limited [2024] KEHC 8879 (KLR), the High Court considered a declaratory claim arising from a judgment obtained in a primary accident claim and emphasised the need for a claimant to establish compliance with the statutory requirements under section 10. 46) Similarly, in Directline Assurance Company Limited v Waithera [2024] KEHC 2720 (KLR), the Court considered the statutory notice requirement and the insurer's obligations where the claimant seeks to enforce a judgment under section 10. 47) The Court is satisfied, upon consideration of the evidence on record, that the Plaintiff established the requisite notice to the Defendant. a. Whether the Defendant is liable to satisfy the Judgment 48) Having established that the motor vehicle was insured by the Defendant, that judgment was obtained against the insured and that the Judgment arose from bodily injuries falling within section 5(b), the question is whether the Defendant has demonstrated a lawful basis for avoiding the statutory obligation imposed upon it by section 10.

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49) Section 10(1) is couched in mandatory terms. Where the statutory conditions are satisfied, the insurer is required to pay the person entitled to the benefit of the judgment the amount payable thereunder in respect of the insured liability, including applicable costs and interest, subject to the statutory limits. 50) The High Court recently reaffirmed this position in Munyoki v Kenya Orient Insurance Company Limited [2026] KEHC 2671 (KLR), where the Court allowed a declaratory claim after finding that the claimant had produced evidence of the insurance cover, the primary judgment and statutory notice, while the insurer had merely issued bare denials. The Court ordered the insurer to satisfy the decretal sum together with interest and costs pursuant to section 10. 51) Likewise, in Madison General Insurance Kenya Ltd v Sadera [2024] KEHC 13547 (KLR), the Court explained that the combined effect of sections 5 and 10 is to impose statutory liability upon an insurer in respect of claims involving personal injury or death, subject to the provisions and limits prescribed by the Act. 52) In the present matter, the Defendant did not adduce evidence sufficient to establish that it was entitled to avoid or cancel the policy in accordance with the statutory provisions. 53) In particular, there is no evidence before the Court of a declaration obtained by the Defendant under Section 10(4) entitling it to avoid the policy in respect of the judgment. 54) Section 10(4) provides an avenue through which an insurer may seek a declaration that it is entitled to avoid the policy on specified statutory grounds. The existence of that procedure is important because an insurer cannot simply rely on a bare denial of liability where the statutory conditions for avoidance have not been established. 55) The Court in Pacis Insurance Company Limited v Ichanga [2022] KEHC 16303 (KLR) considered section 10(4) and recognised the statutory mechanism available to an insurer seeking to avoid liability to satisfy a judgment obtained against its insured. 56) The Defendant in the present proceedings did not establish that it had obtained such a declaration or otherwise demonstrated a statutory basis for avoiding the policy.

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57) The Court therefore finds that the Plaintiff has proved her case against the Defendant on a balance of probabilities. 58) The Plaintiff claims the sum of Kshs. 374,216.22. 59) The primary proceedings resulted in Judgment against the insured, and the present proceedings are intended to enforce the Defendant's statutory obligation in respect of that Judgment. 60) Section 10(1) expressly contemplates payment of the sum payable under the judgment, including amounts payable in respect of costs and interest, subject to the statutory limit. 61) I have considered the amount pleaded in the Plaint and the evidence produced in support of the claim. I am satisfied that the Plaintiff has established entitlement to the sum of Kshs. 374,216.22. 62) The Plaintiff is consequently entitled to Judgment against the Defendant for the said sum together with applicable interest. COSTS 63) The general rule under section 27 of the Civil Procedure Act is that costs follow the event, although the Court retains discretion to determine by whom and to what extent costs are to be paid. 64) The Plaintiff has succeeded in establishing her claim against the Defendant. There is no sufficient reason before the Court to depart from the general rule. 65) The Plaintiff is therefore entitled to the costs of the suit. DISPOSITION 66) In the result, and for the reasons set out above, I find that the Plaintiff has proved her case against the Defendant on a balance of probabilities. 67) Accordingly, Judgment is hereby entered in favour of the Plaintiff and against the Defendant, Kenya Alliance Insurance Company Limited, in the following terms: a) A declaration is hereby issued that the Defendant, as the insurer of Motor Vehicle Registration Number KMCJ 364 T, is liable under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, Cap. 405 to satisfy the judgment obtained against

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its insured, King Bird (K) Limited, in Nakuru CMCC No. 677 of 2012. b) The Defendant shall pay to the Plaintiff the sum of Kshs. 374,216.22. c) The said sum shall attract interest at court rates from the date of judgment herein until payment in full. d) The Defendant shall pay the costs of this suit to the Plaintiff. e) The liability of the Defendant is, in accordance with section 10 of the Act, subject to the applicable statutory limits and the terms of the relevant policy insofar as permitted by law. 30 Days Right of Appeal. __________________ L.A. MUMASSABBA PRINCIPAL MAGISTRATE 23.9.2026 JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 23RD DAY OF SEPTEMBER,2026 In the Absence of parties Court Assistant: Phoebe.

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