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MagistrateAllowedMakindu SPMCC (Declaratory Suit) – declaratory suit arising from Makindu SPMCCC No. E050 of 2022 (number not stated in judgment)

Mwendwa & another (Suing on their own behalf and as the of the Estate of the Late Daniel Mulinge Mwendwa) v Directline Assurance Company Ltd (Civil Case E202 of 2025) [2026] KEMC 287 (KLR)

Magistrates' Court (Kenya)
30 June 2026
2,689 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered an insurer to pay Ksh. 2.7 million to accident victims directly, because the insured vehicle's police abstract proved who the insurer was.

What this practically means

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Executive summary

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The plaintiffs sued the insurer of motor vehicle KCG 884Q, which was involved in a road traffic accident on 26th December 2020. Having obtained judgment in the primary suit (Makindu SPMCCC No. E050 of 2022) for Ksh. 2,698,495/- inclusive of costs and interest, but being unable to execute against the insured, they brought this declaratory suit under the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 seeking a declaration that the defendant insurer is liable to satisfy the decree. Interlocutory judgment was initially entered but set aside on condition the defendant pay thrown away costs of Ksh. 7,000/- within 14 days; the defendant defaulted and the interlocutory judgment was reinstated. At the hearing only the 2nd plaintiff testified; the defendant called no evidence. Framing three issues - insurance of the accident vehicle, liability to satisfy the decree, and costs - the court found that the unchallenged police abstract and certificate of insurance prima facie proved the defendant was the insurer at the material time, applying Joel Muga Opija by analogy. Judgment had been obtained against the defendant's insured, statutory notice was served on 25/4/2022, and the defendant failed to demonstrate any of the exemptions in section 10 of Cap 405. The court entered judgment for the plaintiffs, declared the defendant bound to satisfy the entire decretal sum of Ksh. 2,698,495/-, awarded interest at court rates from 19/3/2025 until payment in full, and awarded the plaintiffs the costs of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the defendant was the insurer of motor vehicle registration number KCG 884Q at the time of accident
  2. 2.Whether the defendant is bound to satisfy the decree in Makindu SPMC Civil Case No. E050 of 2022
  3. 3.Who should bear the costs of this suit?

Key legal issues

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01

Whether the defendant was the insurer of motor vehicle KCG 884Q at the time of the accident

Holding

Proved on a balance of probabilities by the police abstract and certificate of insurance, which were unchallenged

Reasoning

The plaintiffs relied on a police abstract indicating the defendant insured the vehicle under policy number 00136935 TPO and on a copy of the certificate of insurance. Applying by analogy Joel Muga Opija v East African Sea Food Limited, the contents of an unchallenged abstract are evidence. The defendant called no witness, so the evidence remained uncontroverted and was sufficient to prove insurance on a balance of probabilities.

02

Whether the defendant is bound to satisfy the decree in the primary suit

Holding

Yes. Judgment was obtained against the defendant's insured and no statutory exemption under section 10 was established

Reasoning

Section 10(1) of Cap 405 obliges an insurer to satisfy judgments against its insured notwithstanding cancellation or avoidance of the policy. The decree in the primary suit was proved. None of the exemptions in section 10(2), (3A) or (4) was availed of: statutory notice was served on 25/4/2022, execution was not stayed, and the insurer adduced no evidence of entitlement to any exemption.

Legal principles established

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  • An unchallenged police abstract and certificate of insurance constitute prima facie proof of insurance of the accident motor vehicle
  • Under section 10(1) of Cap 405, an insurer must pay sums due under a judgment obtained against its insured notwithstanding avoidance or cancellation of the policy, unless an exemption under the Act is established

Court orders

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  1. 1.Judgment entered in favour of the plaintiffs as against the defendant
  2. 2.A declaration that the defendant is bound to satisfy the entire decretal sum in Makindu SPMCCC No. E050 of 2022
  3. 3.The defendant to pay the plaintiffs the decretal sum of Ksh. 2,698,495/=
  4. 4.The defendant to pay accrued interest on the decretal sum at court rates from 19/3/2025 until payment in full
  5. 5.The plaintiffs awarded costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original declaratory jurisdiction under the Insurance (Motor Vehicle Third Party Risks) Act Cap 405; civil jurisdiction of the magistrates' court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

A declaration is hereby issued that the defendant is bound to satisfy the entire decretal sum in Makindu SPMCCC No. E050 of 2022;
p. 6Final orders - declaration against insurer
The defendant is adjudged to pay the plaintiff the decretal sum of Ksh.2,698,495/=;
p. 6Final orders - payment of decretal sum
The defendant shall also pay accrued interest on the decretal sum at court rates from 19/3/2025 when interest was last awarded until payment in full;
p. 6Final orders - interest
The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof.
Burden of proof (Kirugi & Another v Kabiya)
We think, with respect, that the learned Judge in failing to consider in depth the legal position in respect of what is required to prove ownership, erred on point of law on that aspect.
p. 5Proof of ownership/insurance via police abstract (Joel Muga Opija)

Issues in the judgment

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minor

Judgment dated 30th June 2026 while the plaint recites that the decree was calculated 'as at 19/3/2025' and interlocutory judgment was entered 3/9/2025; the stated judgment date appears to be in the future relative to internal chronology and may be a typographical error

minor

Defendant's name never stated anywhere in the judgment; it is referred to only as 'the defendant'

minor

The case number of the present declaratory suit is not stated in the judgment; only the primary suit number (Makindu SPMCCC No. E050 of 2022) appears

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwendwa & another (Suing on their own behalf and as the of the Estate of the Late Daniel Mulinge Mwendwa) v Directline Assurance Company Ltd (Civil Case E202 of 2025) [2026] KEMC 287 (KLR)", Case Analysis (2026). Makindu SPMCC (Declaratory Suit) – declaratory suit arising from Makindu SPMCCC No. E050 of 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/287/eng@2026-06-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.