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Court of AppealDismissedCivil Appeal 372 of 2017· [2022] KECA 1333 (KLR)

Kinyanjui v Kenya Orient Insurance Company & another

Court of Appeal
2 December 2022
5,053 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed insurers can refuse accident claims when a vehicle was sold without telling them, because the seller loses any insurable interest.

What this practically means

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Executive summary

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The Court of Appeal (W. Karanja, A. K. Murgor and Jamila Mohammed, JJA) dismissed an appeal by Fredrick Njeru Kinyanjui, an interested party and accident victim, against a High Court judgment (Onguto, J., May 12, 2017, HCCC No. 595 of 2014) declaring that Kenya Orient Insurance Company was entitled to repudiate a third-party motor insurance policy issued to Kelvin Macharia Karanja. The policy contained a notice requiring the insurer to be informed of any sale of the vehicle and return of the certificate. Investigations established that the insured had sold the vehicle to Dominic Marika Mwaura before the accident of August 27, 2010, receiving instalment payments, and had misrepresented that his employee was driving at the material time. The Court affirmed the two issues framed by the High Court: material non-disclosure/misrepresentation and loss of insurable interest. It held that PW2, a licensed insurance investigator, was an expert whose report was admissible under Sections 48 and 49 of the Evidence Act, rejecting the hearsay challenge. On insurable interest, applying the rebuttable presumption of registered ownership and the authorities that an insurable interest is lost upon sale of the insured property, the Court found the 2nd respondent had parted with possession and beneficial ownership before the accident. Relying on the uberrimae fidei doctrine, it held the insured was bound to disclose the sale and return the certificate; his concealment entitled the insurer to avoid the policy. The appeal was dismissed with costs of the appeal and of the High Court awarded to the 1st respondent.

Key legal issues

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01

Admissibility of the investigator's evidence as expert testimony

Holding

PW2, a licensed professional insurance investigator, was an expert; his evidence was expert opinion evidence and his report was admissible under Section 49 of the Evidence Act.

Reasoning

Section 48 of the Evidence Act renders relevant the opinion of a person with special means of knowledge, and Section 49 makes the grounds of a relevant opinion also relevant. PW2 testified he was licensed to conduct insurance investigations, interviewed the insured and occupants, and prepared a comprehensive report, qualifying his testimony as expert and admissible rather than hearsay.

02

Whether the 2nd respondent had an insurable interest at the time of the accident

Holding

He did not; he had sold the vehicle and parted with both possession and beneficial ownership before the accident, so the policy could not protect him.

Reasoning

The investigation report showed the 2nd respondent admitted selling the vehicle for Kshs. 30,000 with acknowledgments of instalment payments on record, the first dated July 22, 2010. Relying on Peters v General Accident Fire & Life Assurance and Smith v Ralph, the Court held an insurable interest is lost upon sale of the insured property, and the presumption of registered ownership is rebuttable.

p. 8
03

Whether the insurer was entitled to repudiate the policy

Holding

Yes; the 2nd respondent breached the contract by failing to return the Certificate of Insurance upon sale and by concealing the material fact of the sale, contrary to the utmost good faith.

Reasoning

The policy expressly required the insurer to be informed of any sale and the certificate returned. Insurance contracts being uberrimae fidei, the insured was bound to disclose the sale so the insurer could assess its risk. Concealment of material facts known to the insured entitled the insurer to avoid the policy, affirming the learned Judge's finding.

p. 8

Legal principles established

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  • A first appellate court must re-evaluate the evidence and arrive at its own independent judgment, scrutinising the whole evidence afresh while bearing in mind it did not see or hear the witnesses.
  • A contract of insurance is one of utmost good faith; the insured must disclose all material circumstances known to him, and concealment of a material circumstance avoids the policy.
  • There can be no transfer of an insurance policy where the subject insured is transferred; the insurable interest is lost once the insured property is sold.
  • The presumption that the registered owner of a motor vehicle in the log book is the actual owner is rebuttable by compelling evidence; passage of property in a chattel is a question of fact.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal and of the High Court awarded to the 1st respondent

Authorities

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Legislation

  • Evidence ActSection 48
  • Evidence ActSection 49
  • Sale of Goods ActSection 36
  • Civil Procedure RulesOrder 10 Rule 9
  • Penal Code ActSection 153
  • Divorce Act

Cases cited (10)

  • Selle & another v Associated Motor Boat Co. Ltd. & Others
    [1968] EA 123

    Duty of a first appellate court to re-evaluate evidence and reach its own conclusions.

  • Peters v Sunday Post Limited
    [1958] EA 424

    An appellate court should differ from trial findings of fact only with caution.

  • Ignatius Makau Mutisya vs Reuben Musyoki Muli
    [2015] eKLR

    The presumption that the registered owner in the log book is the actual owner is rebuttable.

  • Francis Nzioka Ngao v Silas Thiani Nkunga
    Civil Appeal No 93 of 1998

    Passing of property in a chattel is a question of fact in each case.

  • Peters v General Accident Fire & Life Assurance
    [1938] 2 All ER

    No transfer of an insurance policy where the subject insured is transferred.

  • Smith v Ralph
    [1963] 2 Lloyds

    A policy does not extend beyond the time of sale of the insured property; insurable interest is lost on sale.

  • Co-operative Insurance Company Ltd v David Wachira Wambugu
    [2010] eKLR

    A contract of insurance is one of utmost good faith requiring disclosure of material facts.

  • Joel v Law Union & Crown Insurance Company (2)
    (1908) 2 KB 883

    Insurance contracts are uberrimae fidei; insurer entitled to all material information possessed by the insured.

  • Brownlee v Campbell
    5 AC 925

    Concealment of a material circumstance known to the insured avoids the policy.

  • Carter vs Boehm
    (1766) Burr. 1905

    Keeping back special facts known to the assured is fraud and renders the policy void.

On appeal from
High Court at Nairobi
HCCC No. 595 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal against the judgment/decree of the High Court

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, "Kinyanjui v Kenya Orient Insurance Company & another", Case Analysis (2022). Civil Appeal 372 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1333/eng@2022-12-02

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