1.William Chege Mbuthia (William) filed a suit as an administrator of his deceased son claiming damages for an accident which resulted in death of his son before the Thika Magistrate’s court being Civil Case No. 347 of 2013 hereinafter original suit. William sued two parties in the original suit namely, Oriental Car Hire Ltd and grace Nyambura Katha. Interlocutory default judgment was entered for William in the original suit. Following a formal proof of that case, William was awarded a total Kshs.1,092,075 in damages.
2.William filed a declaratory suit, Civil Case No. 681 of 2019 before Thika Magistrate’s Court seeking declaration that Cannon Insurance Limited (Cannon) was liable to satisfy the judgment of the original suit by virtue of being the insurer of the two parties sued in the original suit.
3.Cannon filed a defence and denied being served with demand notice in respect to the accident and service of any processes of the original suit.
4.William in his evidence before court stated Cannon was served with pleadings of the original suit and also with an order in the original suit for substituted service of the summons.
5.Cannon relied on the evidence of it legal assistant. That witness reiterated Cannon’s defence by denying being served with any documents relating to the original suit. The witness further stated:-
6.The above evidence was in the written statement of the legal assistant of Cannon.
7.Cannon is aggrieved by the trial court’s judgment which found that Cannon had been served with notice of the accident on 15th January, 2010, in accordance with Section 10(2) (a) of Cap. 405. The trial court therefore declared and entered judgment against cannon as per the judgment of the original suit. Cannons appeal is based on its assertion that William did not serve it with the statutory notice as required under Cap. 405.
8.This is the first appellate court. This Court therefore should reconsider the evidence tendered at the trial court and draws its own conclusion. In doing so, this Court will take caution to note that it neither saw nor heard the witnesses who testified at trial.
9.Before embarking on my analysis, I wish to state that William’s learned advocate, Mr. Chris Maina erred to submit documentary evidence which was not before the trial court in this appeal. The documentary evidence, that is, the demand letter sent to the parties sued in the original suit was not submitted in evidence at the trial of the case which is the subject of this appeal. That documentary evidence will therefore be ignored in the consideration of this appeal.
10.The core basis of Cannon’s appeal is that the trial court erred to find William had served on it the statutory notice as required under Cap 405. Section 10(1) of Cap 405 provides that after an insurance policy has been effected and judgment is entered on the liability covered under that policy, and that judgment is obtained against the insured, the insurer shall pay the amount of that judgment. Sub-section (2) however provides that no sum of the judgment amount “shall be payable by an insurer in respect of any judgment, unless within thirty days after the commencement of the proceedings in which the judgment was given, the insurer had notice of bringing of the proceedings.” In other words, William was required to serve Cannon notice of the original suit thirty days after the commencement of that original suit.
11.The subject accident occurred on 13th September, 2009. The original suit was filed by William on 17th May, 2013. The thirty days period within which William was statutorily required to serve the notice on Cannon to give Cannon notice of that suit expired on 18th June, 2013.
12.I have perused the exhibits produced by William at the trial. There is no exhibit which proves Cannon was notified of the original suit within thirty days of that suit being filed. There is a receipt of G4S dated 15th January, 2010. In the evidence of William, there is no mention of such statutory notice being served on his behalf by G4S. Rather, William talked of the service by G4S which was the substituted service of the summons and plaint in furtherance to leave granted in the original suit on 5th June, 2015.
13.There is an anomaly there. How could William serve on 15th January, 2010 substituted serve when leave to so serve was granted on 5th June, 2015? In other words, the substituted service occurred in 2010 and the order to effect the substituted service was issued in the year 2015.
14.Cannon’s witness on being cross examined stated:-
15.On being re-examined, that witness said:-
16.The knowledge spoken of by Cannon’s witness is not of the Notice envisaged in section 10(2)(a) of Cap 405. That Section requires an insurer to be notified of the commencement of a court action relating to the accident, covered under the policy of insurance.
17.I concur with submissions on behalf of Cannon that William failed to prove service of the statutory notice as required under Section 10(2)(a) of Cap 405. The appeal therefore succeeds.
18.Given the foregoing, the judgment of the court is that the trial magistrate’s judgment dated 30th November, 2020 is hereby set aside and is substituted with an order dismissing with costs Thika CMCC No. 681 of 2019.
19.The appellant is awarded costs of this appeal.