Otieno v Monarch Insurance Company Limited

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment the motor vehicle, as a result of which the Plaintiff sustained serious injuries. In the suit it is alleged that the Defendant herein had insured the subject motor vehicle vide a policy number MNC/0700/000218/2017 COMP. 3. In the primary suit, by a Defence Statement dated 10/02/2022, the Defendants denied ownership of the vehicle. The primary suit proceeded before Hon. Orenge K. I., Principal Magistrate (PM) and judgment was delivered on 29/06/2023 against the Defendants. 4. In the judgement, the defendants conceded and or recorded a consent judgment on liability wherein they agreed to be 75% liable for the accident. The defendants were duly represented in the primary suit. The judgment was entered in favour of the Plaintiff. The Defendants failed to satisfy the terms of the judgment delivered. The Plaintiff thereafter instituted the instant suit as a mode of execution against the Defendant. 5. The Defendant did not enter appearance. The instant suit proceeded to formal proof on 18/11/2025 and the Court directed the Plaintiff to file written submission. Plaintiff filed submissions dated 30 th April, 2026. It was the Plaintiff’s submission that a copy of the police abstract produced in this suit as Pexh. No. 7 acts as evidence that the motor vehicle herein was insured by the defendant and it is thus liable to satisfy the decree issued. In his submissions the Page 2 of 14

page 2 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment Plaintiff has also pointed out that the Defendant was served with the Plaint and all supporting documents as well as a statutory notice and the defendant was aware of the existence of the primary suit as well as judgment. 6. I have considered the facts and the nature of the case and the arguments brought forth in the Plaintiff’s’ submissions. The Plaintiff has a judgment and a decree issued by a Court of competent jurisdiction. The Plaintiff filed a declaratory suit under Section 10 (1) of the Insurance (Motor Vehicle Third Party Risks) Act to enforce the said judgment. 7. Section 10 (1) of the Act provides: 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. 8. According to the above, a successful Plaintiff is duty bound in seeking to enforce a decree against an insurer to prove that firstly there was an accident, secondly that there was a suit that resulted in the decree and thirdly there is a Page 3 of 14

page 3 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment decree that is yet to be settled. Having established all that, the Plaintiff has to also demonstrate and satisfy the Court that prior to filing a declaratory suit, the insurer was aware of the suit, and the insurer was served with a notice. 9. So therefore in my opinion the main issues for deliberation by this Court are; i) Whether the Defendant is bound to satisfy the decree. ii) Who shall bear costs of the suit 10.As regards to whether the Defendant can be held liable it is important to take cognizant of the fact that from the proceedings, -I note that the firm of J. Ndungu Njuguna & Company advocates served a statutory notice of institution of suit dated 03/06/2019 to the defendants in the primary suit. The Defendant thus had sufficient notice. 11.Having established that the Defendant was served with the notices and as per Section 12 (1a) of the Act the insurer has an obligation to respond to a statutory notice. It states as follows: ‘The insurer shall, upon being served with the statutory notice and documents, admit or deny liability for the claim or judgment by a notice in writing to the person or persons presenting the claim or judgment’. Page 4 of 14

page 4 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment 12.There was however no response or Court appearance from the Defendant herein. In Ogada Odongo v Phoenix of E.A. Insurance Co. Ltd Kisumu HCC 132/2003, it was held: (1) By an insurer issuing a policy of insurance, it automatically assures the rights of third parties. It simply means, the rights/obligation of the insured automatically transferred to the insured unless it is proved otherwise. (2) By covering third parties, rights, the insurance was in essence performing a statutory duty imposed by an Act of Parliament. 13.In Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (suing as Administrator of the Estate of Pamela Agola Apopa) deceased [2020] eKLR, it was held that a Respondent cannot be left to hold a barren decree from a lawful judgment. 14.Further on the evidence of the police abstract which was produced by the police who conducted investigations of the accident, it was clear that there existed an insurance policy with the Defendant. In APA Insurance Co. Ltd v George Masele [2014] eKLR (Mabeya J), held that: …a police abstract was good enough, as evidence that there had been a policy of insurance in force, and that it was unreasonable to expect the injured victim to produce a certificate of insurance, given that he was not privy to the contract between the insured and the insurer, and that the Page 5 of 14

page 5 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment details, as captured in the police abstract, are from the certificate of insurance affixed to a motor vehicle or supplied by the insured. 15.Based on the facts of the case and the above legal provisions, I am satisfied that the Plaintiff has proved his case and the Defendant has an obligation to settle the decree. It is trite that costs follow the event, unless otherwise ordered by the Court. Section 27 of the Civil Procedure Act states: --- the costs of and incidental to all suits shall be in the discretion of the Court or Judge, and the Court shall have full power to determine by whom--– such costs shall be paid ---- provided that the costs of any action, cause or other matter or issue shall follow the event unless the Court or judge shall for good reason otherwise order. 16.The Defendants in the primary suit failed to honor obligations placed on by law. The Plaintiff has spent money and time to pursue fulfilment of the decree by filing the instant declaratory suit which the Defendant at all times knew about the case and knew it had a statutory obligation to the Plaintiff to settle the decree or give tangible reason with evidence why it should not settle the decretal amount. Having found that the Defendant is liable to settle the decree, I award costs as well as interest to the Plaintiff. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS __08th ___DAY OF _September_, 2026 ALOYCE-PETER-NDEGE Page 6 of 14

page 6 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment 1. S On or about 30/03/2023, the Plaintiff had stationed and/or parked his motor cycle registration number KMDY – 090A off Nakuru – Nyahururu road at Morop Farm area when the lawful/ designated driver motor vehicle registration number KCE – 736 P HINO MINIBUS (hereinafter called ‘The said motor vehicle and/or motor vehicle herein), in his or her lawful course of duty, employment and or engagement so carelessly, negligently and /or recklessly rode, managed and/or controlled the same and thereby permitting it and/ or casing the same to smash, plough into, hit and or collide with the Plaintiff/ motor cycle herein as a result of which he sustained serious bodily injuries and his motorcycle herein was seriously/ extensively damaged. 2. The Defendant in his Statement of Defence has denied the occurrence of the accident and liability. In the alternative, it attributed the accident to the negligence on the part of the plaintiff and or his passenger. The defendant did not however adduce any evidence to challenge or controvert the overwhelming evidence given by the plaintiff of how the accident herein happened and the resultant injuries, loss and damages that was caused to him and his motor cycle. These denials and averments by the defendant therefore remain mere denials and averments with no evidential backing. The plaintiff cannot therefore be said to have contributed to the accident in absence of any Page 7 of 14

page 7 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment evidence to prove the same. In the case of ISINYA ROSES LTD V ZAKAYO NYONGESA [2016] e KLR, it was held that if only the plaintiff testifies and the defendant fails to tender any evidence to controvert his evidence or to prove particulars of contributory negligence on his part as pleaded in the defence, contributory negligence remains unproved in the circumstances. 3. I thus do hereby agree with the learned counsel for the Plaintiff that the totality of the Plaintiff’s uncontroverted evidence is to the effect that the driver of the motor vehicle herein was the one wholly and solely liable for the collision herein, since no other evidence was tendered by the Defendant to challenge or controvert the same and hence the defendant is to be held solely and wholly liable for the same. The allegations and pleadings in his Statement of Defence, in the absence of evidence to prove them, remain bare allegations and or pleadings and those averments in themselves cannot in any way be said to have controverted the plaintiff’s evidence and testimony in court. In the case of LINUS NGANGA KIONGO & OTHERS V TOWN COUNCIL OF KIKUYU [2012] e KLR, the court held that if a defendant fails to call evidence in support of his case, the evidence adduced by the plaintiff against him remains uncontroverted and therefore unchallenged and given that proof in civil cases Page 8 of 14

page 8 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment is on a balance of probabilities, the plaintiff is entitled to succeed in the circumstances. 4. Further, in the case of REGINA WANGECHI V ELDORET EXPRESS COMPANY LTD [2008] e KLR, the court held that: In any action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of trial there is proved a set of facts which raises a prima facie inference that the accident was caused by the negligence on the part of the Defendant, the issue will be decided in the plaintiff’s favour unless the defendant provides some answer adequate to displace that inference. 5. Moreover, in the case of FRANCIS MURANGIRI JOSIAH & ANOTHER V STANLEY MUTUNGA [2017] eKLR, a driver who had hit a pedestrian while off the road was held solely and wholly liable for the accident for reasons among others, driving while absent minded and for failure to exercise a proper look out or have regard to the safety/ welfare of the pedestrian. 6. It is on the basis of the foregoing that I find that the plaintiff has been able to prove on a balance of probabilities that the driver of the suit motor vehicle herein is 100% liable for the accident herein which makes the defendant Page 9 of 14

page 9 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment herein 100% primarily and or vicariously liable for the same being the owner and/or user of the same as pleaded in the Plaint and confirmed by the evidence on record, police abstract and motor vehicle copy of records herein. 7. It is common ground from the medical evidence adduced by both sides 1 herein that the victim herein sustained the injuries pleaded, i.e. oblique fracture proximal end of the left fibula, severe soft issue injuries of the left leg, dislocation of the left acromio clavicular joint and blunt injury to the anterior chest wall leading to soft tissue injuries. I will therefore go straight to the quantum. 8. Whereas there were authorities cited in the submissions herein, I find the injuries herein not comparable to any of them. General damages are however damages at large whose purpose is to compensate the injured to the extent that such injury can be assuaged by a money award. It has repeatedly been stated that money cannot renew a physical frame that has been injured and crushed hence the courts can only award sums which must be viewed as giving reasonable compensation2. Awards ought to be reasonable and must be assessed with moderation bearing in mind that large and inordinate awards 1 A second medical report was produced by consent without calling the maker as Dexh. No. 1. It was the only evidence adduced by the defendant. 2 See West (H) and Sons Ltd v Shepherd [1964] AC 326 Page 10 of 14

page 10 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment may injure the body politic. Furthermore, it is desirable that so far as possible comparable injuries should be compensated by comparable awards putting into consideration the current prevailing economic circumstances including inflation (see TAYAB VRS KINANU [1983] KLR 114 and WEST (H) & SON LTD VRS SHEPHERD [1964] AC 326, 345). Damages must therefore be within limits set by decided cases and also within the limits that the Kenyan economy can afford (see NYOTA TISSUE PRODUCTS VRS LAWRENCE KUBOKA & 4 OTHERS [2020] eKLR) 9. There is however no one best formula of assessing damages in injury claims. Such assessment is an act of art rather than science. In HCCC NO. 752/1993 MUTINDA MATHEKA VS GULAM YUSUF that was cited by Warsame, Ag. J (as he then was) in JENIPHER MILAY O. OKUKU VRS KENYA BUS SERVICES LTD (KISUMU HC MISC. CIVIL APPL. 172/2001), Wambilyangah J., held that the court will essentially consider the nature of the injuries suffered, the period of recuperation etc.3 Guided by the above principles, I find that Kshs. 900,000/= shall adequately compensate the plaintiff herein. I do therefore award the same. 3 See SIMON TAVETA VRS MERCY MUTITU NJERU [2014] eKLR, as cited in JAMES OKONGO VRS ELMAT SAGWE OGEGA [2021] eKLR Page 11 of 14

page 11 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment 10.On Special Damages, I have only been able to find proof of Kshs. 20,000/being medico-legal report vide PEXH. No. 10A; Kshs. 4,500, being medical or treatment expenses vide PEXH. Nos. 10B and 12; and Kshs. 550/- being vehicle inquiry fee vide PEXH. NO.13. I do therefore hereby award the same at Kshs. 25,050/- as special damages. 11.On repair costs, the same form part of special damages which under our jurisprudence must be specifically pleaded and strictly proven, through actual cash receipts or a valid professional assessment. This means that the plaintiff herein was required to plead and prove the exact financial loss and detail the specific items or parts damaged in the pleadings. This was however not the case herein. The plaintiff did not state the parts damaged and repaired, and did not detail those parts in Paragraph 7 of the Plaintiff. I shall therefore not award the same. 12.As to the loss of income/ earnings, I do agree that the principle of restitutio in integrum applies and the plaintiff is entitled to such compensation that will restore him back to the position he would have been if the injury had not occurred. It is the plaintiff’s case that he used to work as a motor cycle boda operator within Nakuru city earning about Kshs. 1,000/- per day. Copies of the Page 12 of 14

page 12 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment motor cycle’s logbook and a sale agreement dated 22/05/2018 were produced herein. The log book is however not in the name of the purported seller of the motor cycle and I thus find that there is no clear evidence that the plaintiff herein owned a motor cycle that he was using to operate a boda boda transportation business. He did not also produce his driving license to prove that he was a qualified rider. I thus do hereby also dismiss this claim of loss of earning for want of proof. CONCLUSION AND DISPOSAL ORDERS 13.Judgment is hereby therefore entered for the plaintiff against the defendant herein as follows: i) General damages for pain and suffering of Kshs. 900,000/= ii) Special damages of Kshs. 25,050/= iii) Costs of the suit and interest at court rates. DATED, SIGNED AND DELIVERED AT NAKURU IN OPEN COURT THIS ___10TH _____ DAY OF ____SEPTEMBER______, 2026 SENIOR PRINCIPAL MAGISTRATE In the presence of; Page 13 of 14

page 13 of 14

inthechiefmagistrate’scourtatnakurucivilsuitnoe233of2024apndegespmmorganheritageotienoplaintiffversusthemon archinsurancecompanylimiteddefendantjudgment Plaintiff’s Counsel: Kurere Plaintiff: n/a Page 14 of 14

page 14 of 14