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Court of AppealPartially AllowedCivil Appeal No. 232 of 2014

Housing Finance Company Limited v Mary Wambui Muturi [2018] KECA 751 (KLR)

Court of Appeal
26 January 2018
3,843 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that mortgage protection insurance pays off a home loan when the borrower dies, but does not cover missed payments or interest after death.

What this practically means

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Executive summary

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This was a first appeal by Housing Finance Company Limited against a High Court judgment (Mutava J., 18th October 2012) which had granted Mary Wambui Muturi, administratrix of her deceased husband's estate, a permanent injunction restraining realization of the charged property, a declaration that a valid mortgage protection cover existed so that the mortgage debt was fully redeemed on the borrower's death, and an order for release of the title deed with a discharge of charge. The deceased had borrowed Kshs 2,160,000 in 1998 secured by the suit property, with a mortgage protection cover of Kshs 3,600,000, but paid no instalments. The Court of Appeal framed two issues: whether a mortgage protection policy was in force at the borrower's death and who bore the obligation for it, and whether arrears fell within the cover. The Court held that the cover existed automatically upon approval of the loan and that the mortgagee was to take it out and load the cost onto the mortgage, while the borrower equally bore responsibility for premiums and instalments. Crucially, it held the cover did not extend to arrears, which were to be borne by the borrower. The policy crystallized on the borrower's death on 12th August 1999, after which no interest could be levied. The appellant's settlement proposal of Kshs 555,387.10 was held not to be an admission of negligence. Allowing the appeal, the Court set aside the High Court judgment in its entirety, ordered the respondent to pay Kshs 555,387.10 within three months with interest at court rates, and directed that each party bear its own costs. The judgment binds subordinate courts on the scope of mortgage protection covers and their crystallization.

Questions the Court framed

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

  1. 1.Whether there was a mortgage life protection insurance policy in force in relation to the deceased borrower; if so, which party bears the obligation to pay for the cover upon the borrower's demise
  2. 2.Whether or not the payment of arrears is included in the mortgage protection cover and who should bear the responsibility of effecting the payment

Key legal issues

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01

Whether a mortgage protection cover existed at the death of the borrower

Holding

Yes. The mortgage application form provided that the company would insure the borrower's life with an insurer nominated by it, so the cover took effect automatically upon approval and disbursement of the loan.

Reasoning

Clause D(3) of the mortgage application form stated the company would, at the borrower's expense, insure the property and the borrower's life. The Court read this to mean the cover became automatic once the loan was approved and disbursed, and existence of the cover was a pre-requisite to release of funds. However, the mortgagee was to take out the cover and recover the cost from the mortgagor, while the mortgagor equally bore responsibility to pay instalments covering both debt and insurance.

p. 4
02

Whether the mortgage protection cover extended to loan arrears

Holding

No. The cover applied to the specific loan amount and term; arrears were outside its scope and were to be borne by the borrower.

Reasoning

The mortgage contract was for a specific amount and term, with instalments calculated on principal, interest and insurance fees. Arrears could not have been within the contemplation of the parties. The policy contained no provision making non-payment of instalments a repudiation of the contract, so the mortgagee could not escape its duty to insure; but mortgage statements carried a rider that the insurance cover did not cover arrears. Only arrears accrued up to notification of death were relevant.

p. 4
03

When the mortgage protection cover crystallizes and the effect on interest

Holding

The policy crystallized on the death of the borrower on 12th August 1999; thereafter the lender could not levy or charge interest on the outstanding amount.

Reasoning

Relying on this Court's earlier decision in Anne N. Parmena vs Housing Finance Company of Kenya Limited, the policy crystallizes upon the happening of the insured event, namely death. Since the respondent promptly notified the appellant of the death, the appellant's right to levy and charge interest on any outstanding amount after that date ceased. Interest on the mortgage amount from the date the death was reported must be removed from any outstanding sums.

p. 5
04

Whether the appellant's settlement proposal amounted to an admission of negligence

Holding

No. The proposal of Kshs 555,387.10 by letter dated 20th August 2003 was made in good faith and was not an admission of negligence.

Reasoning

The insurance company had made an ex gratia payment of Kshs 1,183,563 to the respondent. The appellant's subsequent demand that the respondent pay Kshs 555,387 to offset the debt was, in the Court's view, an act of good faith in seeking settlement. Diverging from the High Court, the Court found no admission of negligence, noting also that the borrower had not paid a single instalment and shared responsibility for the default.

p. 5

Legal principles established

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  • A mortgage protection cover becomes automatic once the loan is approved and the cover is a pre-requisite to the release of funds; the mortgagee is to take out the cover and recover the cost from the mortgagor, but the mortgagor equally bears responsibility to ensure premiums and instalments are paid.
  • A mortgage protection cover does not extend to loan arrears; arrears must be borne by the borrower.
  • A mortgage protection policy crystallizes on the death of the insured borrower; the lender's right to levy and charge interest on any outstanding amount after that date ceases.
  • An ex gratia payment or settlement proposal by a lender is not, without more, an admission of negligence.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment and decree of the High Court dated 18th October 2012 and all consequential orders set aside in entirety
  3. 3.Respondent ordered to pay the appellant Kshs 555,387.10 in settlement of the debt within 3 months
  4. 4.The said amount to accrue interest at court rates from the date of judgment until payment in full, and in default the appellant be at liberty to execute
  5. 5.Each party to bear its own costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Milimani, Nairobi
Civil Suit No. 346 of 2006
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29(1)(a) cited); appellate jurisdiction over the High Court judgment

Relief refused

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Permanent injunction, declaration of full redemption of mortgage debt and release of title deed as granted by the High Court

The Court found the High Court misdirected itself; the mortgage protection cover did not extend to arrears and the borrower bore responsibility for premiums and instalments

p. 5

Costs

Each party bears its own costs

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.

Indeed existence of a mortgage cover is a pre-requisite to the release of the funds.
p. 4Mortgage protection cover automatic upon loan approval
In our view, the insurance could not be extended to the arrears because the parties had no way of knowing whether there would be loan arrears in future and how much arrears would accrue.
p. 4Mortgage protection cover does not extend to arrears
In this case, the crystallization of the mortgage protection policy was 12th August, 1999 when the deceased borrower died. The right of the appellant to levy and charge interest on any outstanding amount after that date ceased.
p. 5Crystallization of mortgage protection policy and cessation of interest
We set aside in entirety the judgment and decree of the High Court dated 18th October, 2012 and all consequential orders arising therefrom. The respondent is hereby ordered to pay the appellant the sum of Kshs 555,387.10 in settlement of the debt due to the appellant within 3 months from the date hereof.
p. 5Final orders - setting aside High Court judgment and settlement of debt
In view of the circumstances surrounding this matter, and given the financial standing of the appellant vis a vis that of the respondent, we order that each party bears its own costs.
p. 5Costs order

Issues in the judgment

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minor

Duplicate citation of the same authority under two spellings: 'Anne N. Parmena vs HFCK [2015] eKLR' and 'Anne N. Parmena vs Housing Finance Company of Kenya Limited [2015] eKLR' appear to be the same case; the judgment also refers to 'Anne Parmeno case (supra)' with a variant spelling.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Housing Finance Company Limited v Mary Wambui Muturi [2018] KECA 751 (KLR)", Case Analysis (2018). Civil Appeal No. 232 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/751/eng@2018-01-26

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