Directline Assurance Company Limited v Mbai (Suing as legal representative of the Estate of Mbai Maundu (Deceased) [2022] KEHC 3228 (KLR) | Third Party Risks | Esheria

Directline Assurance Company Limited v Mbai (Suing as legal representative of the Estate of Mbai Maundu (Deceased) [2022] KEHC 3228 (KLR)

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Directline Assurance Company Limited v Mbai (Suing as legal representative of the Estate of Mbai Maundu (Deceased) (Civil Appeal E161 of 2020) [2022] KEHC 3228 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3228 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E161 of 2020

GV Odunga, J

July 14, 2022

Between

Directline Assurance Company Limited

Appellant

and

Josephine Nzula Mbai (Suing as legal representative of the Estate of Mbai Maundu (Deceased)

Respondent

(Being an appeal from the judgment of the Honorable A.G. Kibiru delivered on 15th September 2021 in Machakos Chief Magistrate’s Court Civil Case No. 129 of 2020)

Judgment

1. The suit that gave birth to this appeal was initiated by a plaint dated 19th October 2020 filed by Josephine Nzula Mbai, the respondent herein, in Machakos CMCC E129 OF 2020 wherein the following orders were sought;i.A declaration that the Defendant is bound to honour and/or satisfy the judgement in Machakos CMCC No 647 of 2019ii.Costs of the suitiii.Interest in (i) and (ii) above at court rated as from 23rd September 2020iv.Any such order or further relief as the honourable court may deem just and fit to grant.

2. The Plaintiff pleaded that the Defendant was the insurer of motor vehicle registration number KBZ 453S, minibus, under policy number 6000071 wherein the deceased was a passenger travelling along Kathiani-Machakos road on 25th October 2016. The said minibus lost control and moved to the right side of the road and overturned as a result of which the deceased sustained fatal injuries.

3. The Plaintiff contended that on 16th November 2018, she sent or caused a statutory notice to be sent to the Defendant through her advocates and subsequently filed a suit on 25th October 2019 seeking special and general damages. Judgement was delivered on 23rd September 2020 in favour of the Plaintiff against the Defendant for Kshs. 937,750 plus costs which was assessed in the sum of Kshs 151,958 inclusive of interest totalling to Kshs. 1,089,708 for which the Defendant refused to pay.

4. In its defence dated 30th November 2020, the Appellant herein denied that it insured the said motor vehicle and averred that the Plaintiff was not a third party within the definition of the Insurance (Motor Vehicle Third Party Risks) Act Chapter 405 Laws of Kenya and that it was neither served with a statutory notice nor its insured and no notice of a declaratory suit was given to it. The Appellant averred that the service was in any case not carried out in the manner specified under Chapter 405 Laws of Kenya and Order 5 of the Civil Procedure Rules, 2010 and further that there is no privity of contract between the Plaintiff and itself. It therefore urged the court to dismiss the suit with costs.

5. The Plaintiff filed a reply to defence dated 1st December 2020 reiterating the contents of the Plaint and denying the contents of the statement of defence.

6. At the hearing, the Plaintiff testified and stated that she is the wife of the deceased and had obtained a limited grant to file the suit. She stated that on 25th October 2016 the deceased was a passenger travelling along Kathiani-Machakos road which lost control moved to the right side of the road and overturned as a result of which the deceased sustained fatal injuries. She filed a suit being Machakos 647 of 2019 and was awarded Kshs. 937,750 plus costs and interest on 23rd September 2019 which the Defendant refused to pay despite being served with statutory notice, demand letter and a forwarding letter before filing the primary suit which she produced.

7. In cross examination, the Respondent stated that the deceased was not a driver but upon being referred to the investigations report admitted that he was a driver. She also admitted that she did not witness the accident but insisted that the Appellant had covered third party claims.

8. In re-examination he stated that the investigations report was from the Defendant and it did not have statements from other passengers as to who was driving.

9. The Defendant’s witness was Pauline Nyambura Waruhiu, the head of claims and legal of the Defendant. According to her, the policy was issued to Nabii Enterprises Limited for Motor Vehicle KBZ 453S from 5th September 2017 to 4th September 2018. It was her evidence that the deceased was a driver and since this was a self-involving accident. According to her, under section 5(b)(i) of Cap 405, death or body injuries to employees of the insured arising out of or in the course of employment are not covered. It was her evidence that the policy was a 3rd party cover that had an exception on drivers and conductors who were not covered. She relied on the police abstract and an investigation report and contended that the deceased was the driver and therefore they are declined to indemnify.

10. In cross examination, she admitted that they were served with a statutory notice dated 14th November 2016 and police premiums were paid. She however stated that they did not participate in CMCC 647 of 2019 and they did not file a declaratory suit to repudiate the claim. They also did not avail any attachments to the investigation report. Further, the three victims of the accident had not been named in the police abstract.

11. In its judgement rendered its judgement on 15th of September 2021 the learned trial magistrate dealt with the issue of whether the Appellant could repudiate the claim on the basis that the deceased was a driver of the accident motor vehicle and thus not covered by the insurance policy. The trial court found that the Appellant had been duly served with a statutory notice before filing of the suit and had an opportunity to raise this issue at the onset but failed and/or neglected to do so. In the result, judgement was entered for the Respondent against the Appellant in the following;a.That a declaration be and is hereby made that the Defendant is liable to indemnify the Plaintiff and satisfy the judgement and decree in Machakos Civil Suit Number 647 of 2019. b.That the Defendant do pay the decretal sum and costs in the said suit.c.That the interests in the decretal amount shall accrue from the date of the judgement in the primary suit till payment in fulld.That the Plaintiff is awarded costs of this suit plus interest.

12. Aggrieved by this decision, the Appellant lodged this appeal raising the following grounds;a.That the learned trial magistrate erred in law and in fact in holding that the Appellant was liable to satisfy the decree obtained in Machakos Civil Suit No 647 of 2019 and ordering the Appellant to satisfy the said decree in total disregard to the provisions of section 5 (b) (1) and section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act and under the insurance policy.b.That the learned trial magistrate erred in law and in fact in holding that the Appellant’s denial of liability came late and outside the statutory periods set out in the Insurance (Motor Vehicle Third Party Risks) Act.c.That the learned trial magistrate erred in law and in fact in failing to appreciate or take into consideration the Appellant’s submissions or at all.d.That the learned trial magistrate grossly misdirected himself in ignoring the principles applicable and relevant authorities of section 5 (b) (i) and section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act cited in the written submissions presented filed by the Appellant.e.That the learned trial magistrate erred in law and in fact in wholly disregarding the evidence adduced on behalf of the Appellant.f.That the learned trial magistrate consequently erred in law and in fact in awarding cost and interest thereto.g.That the learned trial magistrate’s judgement was rendered/delivered per incuriam.

13. Consequently, the Appellant sought the following orders;a.That to have the appeal allowed with costs,b.That the judgment set aside and be substituted with an order dismissing the Respondent’s suit in the trial courtc.That the appellant be awarded the costs of the Appeal and in the Trial Court.

14. On behalf of the Appellant it was submitted that the Appellant neither defended the primary suit nor filed a declaratory suit and invited the court to be persuaded by the decision in JKG & Another vs General Accident Insurance company Limited [2019] eKLR and find that the deceased was not covered under the policy. Further, it was the Appellant’s position that it was not required to obtain a declaration to repudiate the claim as alleged and reliance was placed on the case of Kenyan Alliance Insurance Company Limited v Naomi Wambui Ngira & Another (Suing as legal representatives and Administrators of the estate of Nelson Machari Maina (Deceased) [2021] eKLR. Counsel faulted the trial court for its ill interpretation of section 10(4) of Cap 405 of the Laws of Kenya and prayed that the Appeal be allowed.

15. The Respondent filed submissions dated 21st April 2022 in which counsel submitted that the primary suit found that the deceased was a passenger and not a driver of the insured vehicle, that he was a driver with Nabii Enterprises but was not in the course of his employment at the time of the accident, he was actually heading home and this was confirmed by the police officer who testified and clarified this position. The court was invited to consider the case of Daniel Toroitich Arap Moi v Mwangi Stephen [2014] eKLR, CIC General Insurance Group Limited v Gerald Ochoki [2020] eKLR and Directline Assurance Company Limited v Juma Ali Sikiro [2021 eKLR.

16. It was the Respondent’s case that the Appellant had failed to prove that the Deceased was a driver and no witness was availed from Nabii Enterprises to confirm the allegations. Further, the claim form referred to by DW1 was not produced. Counsel urged the court to find that the deceased was a third party as envisaged under the Insurance (Motor Vehicle Third Party Risks) Act based on the case of Blue Shield Insurance Company Limited v Raymond Buuri M’ Rimberia (1998) eKLR.

Determination 17. I have considered the material placed before me in this appeal by the respective parties. It is now trite that this Court sitting as the first appellate court is bound to reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. This was the position. This was the position in Selle v Associated Motor Boat Co. [1968] EA 123 where it was held that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the HCCA 18 of 2020 22 impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 54. Therefore, this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial Court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering, and giving allowance for it, that the trial Court had the advantage of hearing the parties.”

18. However, in Peters v Sunday Post Limited [1958] EA 424, it was held that:-“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstances that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgement of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.”

19. It was therefore held by the Court of Appeal in Ephantus Mwangi and Another v Duncan Mwangi Civil Appeal No. 77 of 1982 [1982- 1988] 1KAR 278 that:“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

20. This appeal revolves around the interpretation of sections 4 and 5 of the Insurance (Motor Vehicle Third Party Risks) Act and their interpretation to the facts of this case. Section 4(1) of the said Act provides that no person shall use, or cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of the Act.

21. Section 5(a) and (b) of the said Act provides that:In order to comply with the requirements of section 4, the policy of insurance must be a policy which—(a)is issued by a company which is required under the Insurance Act, 1984 (Cap. 487) to carry on motor vehicle insurance business; and(b)insures such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the vehicle on a road:Provided that a policy in terms of this section shall not be required to cover—i.liability in respect of the death arising out of and in the course of his employment of a person in the employment of a person insured by the policy or of bodily injury sustained by such a person arising out of and in the course of his employment; orii.except in the case of a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment, liability in respect of the death of or bodily injury to persons being carried in or upon or entering or getting on to or alighting from the vehicle at the time of the occurrence of the event out of which the claims arose; oriii.any contractual liability;iv.liability of any sum in excess of three million shillings, arising out of a claim by one person.

22. It is therefore clear that one of the exceptions to the requirement for compulsory insurance cover under the Insurance (Motor Vehicle Third Party Risks) Act is liability in respect of the death or of bodily injury sustained by arising out of and in the course of his employment of a person in the employment of a person insured by the policy. In short employees of the insured are not covered by the Insurance (Motor Vehicle Third Party Risks) Act unless the insurance policy itself provides otherwise.

23. It was opined by Newbold, P in The Great Insurance Company of India Ltd v Lilian Evelyn Cross and Another [1966] EA 90 that:“The obvious intention of the Insurance (Motor Vehicles Third Party Risks) Act, as ascertained from both the preamble and from its provisions, is to enable third parties who have received injury from the use of a motor vehicle on the road to recover compensation for the injury even if the person who inflicted it is not in a position to pay any compensation so awarded. It is against that background that each of the provisions of the Act must be interpreted. A statutory duty is imposed upon, inter alia, the owner of a vehicle to cover by insurance any liability which that owner may incur in respect of injury to third parties arising from the use of the vehicle on the road by such person, persons or classes of persons as may be specified in the policy. In other words, an owner must take out a policy of insurance to cover any liability in respect of injury to third parties which he may incur from the use of the vehicle on the road either by himself or by some other person or persons. He need not cover any conceivable person who could use the vehicle, but he must, to comply with the provisions of section 5(b), cover some person or persons who must be specified in the policy. Thus the cover required by the section may properly be restricted to the vehicle when used by the owner himself or to the vehicle when used by any other named person, or, again, to the vehicle when used by any specified class or persons; but, whoever is specified in the policy as covered in relation to the user of the vehicle, that cover must be against be against “any liability which may be incurred” by the owner or the specified person “in respect of the death or bodily injury to any person caused by or arising out of the use of the vehicle on the road”. A person who drives a vehicle clearly uses it and an owner may use the vehicle without driving it himself.

24. In the opinion of Crabbe, JA:“Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act (Cap 405) confers on an injured third party an independent right to claim from an insurer the satisfaction of any judgement together with the costs obtained against persons insured in respect of any liability as required to be covered under paragraph (b) of section 5 of the Act. The main object of the Act is to protect third parties from the consequences of the accident, and section 4 of the Act imposes a duty upon the owner of a motor vehicle which he uses himself, or permits, or causes, others to use to take an insurance policy in respect of third party risks…Although the use of the vehicle was covered by a valid policy, the actual driver was not himself insured. In the court’s judgement, it is sufficient, if the policy of the owner of the car was in force at the material time. Section 4 does not say that anybody should be insured, but merely provides that a policy in compliance with the requirements of the Act must be in force. It is the user of the vehicle, and not the driver, that is required to be covered by a policy of insurance and the element of driving a vehicle is not an essential element of “using” the vehicle. In this particular case the driver was using the car with the authority of the owner; there was a policy in force which would protect third parties, and it was immaterial whether or not the driver himself was covered by a policy of insurance.”In this case, it is not in dispute that the Appellant is the insurer of motor vehicle registration number KBZ 453S, a mini bus which was involved in an accident on 25th October 2016 along Kathiani-Machakos road. It is also not in dispute that the Deceased was on board the said motor vehicle. The question that arises however is the capacity in which the deceased was in that vehicle. If he was a passenger, then the Appellant would be liable to the Respondent having failed to seek a declaration that it was not liable as required under section 10 of the said Act. Section 10(1) of theInsurance (Motor Vehicle Third Party Risks) Act, Cap 405, Laws of Kenya (the Act) provides as hereunder:(1)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.

25. The side note to that section is “Duty of insurer to satisfy judgments against persons insured”. In Bushell v Hammond [1904] 2 KB 563, it was held that though it is true that the marginal notes do not form part of a statute, yet some help can be derived from the side note to show what the section is dealing with. From the side note it is clear that the section deals with the obligation by the insurer to satisfy judgements obtained against persons insured. What clearly comes out from the said provision it is clear that for an insurance company to be under a statutory obligation to satisfy a decree certain condition precedent must be satisfied. Firstly, before a judgement is obtained, there must have been a policy of insurance in effect. Secondly, the judgement must have been in respect of a liability required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy). Thirdly, the judgement must have been obtained against a person insured by the policy. In this case, the Appellant’s contention is that the judgement in question is not one in respect of a liability required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy). The trial Court found that even in those circumstances, the Appellant ought to have filed a suit repudiating liability.

26. With due respect to the learned trial magistrate, in so finding he misdirected himself. Where the position adopted by the insurance company is that under the statute the accident is not covered, the matter can only be determined at the time of the declaratory suit and not in the primary suit. This was the position adopted by Ringera, J (as he then was) in Minnet ICDC Insurance Brokers Ltd. v Cleto Kithure Nairobi HCCC No. 5042 of 1989 where he held that:“A declaratory suit under the provisions of section 10 of the Insurance (Motor Vehicles Third Party Risks) Act Cap 405 will have to be filed and the plaintiff may, if so advised, take the point that such liability was not required to be covered by the policy under Section 5(b) of the said Act and was not in fact so covered. It will be for the court trying such declaratory suit to adjudicate on the matter on the basis of the evidence and law canvassed before it…Consequently the prayer for such a declaration is premature and misplaced in the present suit. Moreover, if as the plaintiff appears to have conceived it, the declaration was meant to be consequential to declaration, it must be refused as the first declaration has been refused…Therefore whether or not the injured person was covered by the policy is to be determined at the stage of declaratory suit and not by a suit filed by the insurance company against the insured.”

27. That brings me to the issue whether, from the evidence adduced, the Respondent was not covered under the Act. In cross-examination, the Respondent stated that though the deceased was a driver, he was not driver of the accident motor vehicle though it was indicated that the deceased was the driver of motor vehicle KBH 453S, the accident vehicle. She however stated in re-examination that the report did not indicate who was driving the vehicle. From the copy of judgment on record, the trial court in Machakos CMCC No. 647 of 2019 (the primary suit), the unchallenged evidence was that the deceased was a passenger as he faults a driver of the motor vehicle for the accident. That being a finding of fact, this Court cannot in this declaratory suit make a contrary finding. As was held in in Madison Insurance Co. Kenya Ltd v Justus Ongera [2004] eKLR:“Once that Judgment was in place, any challenge to its legality or finding could only be done by way of appeal, applying to set it aside or to review but could not be raised in the declaratory suit. Therefore, questions as to whether the Respondent was a “lawful fare paying passenger” or not; whether the offending motor vehicle was owned by the Appellant’s insured or not; whether the accident occurred or not, could only be resolved in the primary suit. Also whether the Appellant’s insured had been served with summons to enter appearance was an issue to be canvassed in the primary suit. The Respondent ‘s only obligation was to comply with the statutory conditions of the Act.”

28. DW1, who testified on behalf of the Appellant, however, stated that the deceased was the driver of the accident vehicle. While admitting that the Appellant had issued an insurance cover for the said vehicle, the condition had an exception for drivers and conductors who were not covered. It was her evidence that the information contained in the abstract and the investigations report indicated that the deceased was a driver.

29. In this case, since the Respondent was the one who sued, it was upon her to prove her case. That the burden of proof was on the appellant to prove his case is in doubt since Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.

30. This is called the legal burden of proof. There is however evidential burden of proof which is captured in Sections 109 and 112 of the same Act as follows:109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.112. in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.

31. The two provisions were dealt with in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”

32. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.”

33. It follows that the initial burden of proof lay on the plaintiff, the Respondent in this appeal, but the same could shift to the Defendant, the Appellant in this appeal depending on the circumstances of the case. In my view, since it was the Appellant who was claiming that the deceased was the driver of the subject vehicle and therefore was not covered by the policy, the burden shifted to the Appellant to prove this allegation. If the Appellant intended to rely on the police abstract, then it ought to have called the author thereof to shed light on what basis it was stated that the deceased was the driver of the said vehicle. The same position applied to the author of the investigations report. Again, the Appellant ought to have produced the cover in which it was alleged that the deceased was not covered. As appreciated in Dr. James Ng’anga Mungai v United InsuranceCo. Ltd No.1860 of 2000:-“For an insurance to be liable under S.10 (2) of the act, firstly, it must be proved that the insurance actually covered the insured’s car in which the plaintiff was travelling when he was injured and a police abstract does not help as that document only shows that the police had recorded the accident with the details as they found and noted.”

34. In this case, as these people were not called and the policy was not produced, the Appellant failed to satisfy the burden that was clearly on it. Whereas I find that the learned trial magistrate erred in finding that the issue of the class of the deceased was determined in the primary suit, I find that the Appellant failed to prove that the deceased was the driver of the said vehicle and that he was therefore excluded from those covered under the policy. In the case of Kenya Alliance Insurance Co. Ltd v Thomas Ochieng Apopa (suing as Administrator of the Estate of Pamela Agola Apopa) deceased [2020] eKLR the Court expressed itself as hereunder;“In Bukenya v Uganda [1972] EA 549, the Court of Appeal for Eastern Africa held that failure to call critical witnesses (and by extension crucial documents) by the prosecution (or in the instant case, by a party alleging or who would have been expected to produce them because such evidence or witness was at their disposal), entitles the court to make an adverse inference against the prosecution (in this case, by a party who would have benefitted from the production of such evidence or called such witness to establish their case).”

35. In the premises, this appeal fails and is dismissed with costs.

36. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 14THDAY OF JULY, 2022. G V ODUNGAJUDGEDelivered in the presence of:Mr Mburu for the RespondentCA Susan