Masari Distributors Limited v UAP Provincial Insurance Company Limited [2017] KECA 144 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a clear insurance exclusion for mechanical breakdown, including brake failure, validly allows an insurer to reject a claim.
What this practically means
#Executive summary
#Key legal issues
#Cause of the accident
The accident was caused by brake failure of the insured motor vehicle, as evidenced by the driver's own account adopted at trial.
The driver's witness statement, adopted as evidence in chief, narrated that the brakes failed as he drove downhill. The respondent's Claims Supervisor testified that brake failure was a mechanical failure excepted by the policy, and the appellant did not deny that brake failure caused the accident. The Court agreed with the trial Judge's finding on causation and saw no basis to disturb it on re-appraisal.
Whether the insurer was entitled to repudiate liability under the policy exceptions
Yes. Brake failure was a mechanical failure expressly excepted by Section 1 of the policy, and the policy was clear and unambiguous, so the contra proferentem rule did not apply.
The policy expressly excluded liability for wear and tear and mechanical or electrical breakdowns, failures or breakages. Brake failure fell squarely within that exception and could only occur where the vehicle was not properly maintained as the policy required. Because the clause was clear and binding on the parties, the liberal construction rule invoked by the appellant had no application. The insurer was therefore entitled to vitiate liability.
Effect of the trial Judge's obiter remarks on the user clause covering trailers
The remarks were obiter dictum made after the Judge's definite findings and had no effect on those findings; the Court declined to engage with them further.
The trial Judge's comments that the vehicle appeared to be completely uninsured under the user clause were made after he had determined each issue framed by the parties. They had no bearing on his principal findings on causation and the policy exception, which were the main issues both at trial and on appeal. The Court therefore found no need to consider them further.
Legal principles established
#- On a first appeal, the Court of Appeal must re-evaluate the evidence and reach its own conclusions, subject to the Selle v Motor Boat Company principles.
- An insurance policy exception for 'wear and tear, mechanical or electrical breakdowns' clearly excludes liability for loss caused by brake failure, and such a clause will only be construed contra proferentem where it is vague or ambiguous.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Nairobi, Milimani
- H.C.C.C. 433 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29 re-appraisal of evidence); appeal as of right from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masari Distributors Limited v UAP Provincial Insurance Company Limited [2017] KECA 144 (KLR)", Case Analysis (2017). Civil Appeal No. 312 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/144/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.