Kinyanjui v Kenya Orient Insurance Company & another
The bottom line
#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
#Executive summary
#Key legal issues
#Admissibility of the investigator's evidence as expert testimony
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.
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.
Whether the 2nd respondent had an insurable interest at the time of the accident
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.
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.
Whether the insurer was entitled to repudiate the policy
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed
- 2.Costs of the appeal and of the High Court awarded to the 1st respondent
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.