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Court of AppealPartially AllowedNakuru Civil Appeal (Court of Appeal) - Memorandum of Appeal dated 27th September 2021, arising from Nakuru H.C. Civil Appeal No. 155 of 2017· [2024] KECA 392 (KLR)

UAP Insurance Company Ltd v Maina & another (t/a Sawa Sawa Paints and Allied Products) (Civil Appeal E078 of 2021) [2024] KECA 392 (KLR)

Court of Appeal of Kenya
12 April 2024
5,919 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The Court of Appeal ruled that once an insurer repairs a vehicle, it doesn't owe the full insured sum, and loss-of-user claims need solid proof.

What this practically means

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Executive summary

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This second appeal arose from the High Court at Nakuru (T. Matheka J.), which had allowed the Respondents' first appeal and set aside the trial magistrate's dismissal of their suit against UAP Insurance Company Limited. The Respondents had insured a Toyota Hiace comprehensively; after an accident on 9th November 2011, the insurer opted to repair the vehicle through a panel garage. Disputes over the quality of repairs and an arbitration ensued, and in July 2012 CFC Stanbic Bank, the joint-owner financier, repossessed the vehicle for default under the hire-purchase agreement. The High Court ordered the insurer to pay the insured sum of Kshs 2,250,000/- with interest, plus loss of user of Kshs 25,000/- per month for 12 months, and costs. The Court of Appeal, exercising its limited second-appeal jurisdiction on matters of law under Section 72(1) of the Civil Procedure Act, identified three issues. First, it held that CFC Stanbic Bank, being a registered joint owner by virtue of financing the purchase and being recognised by the policy's hire purchase endorsement, had an insurable interest and could lawfully repossess the vehicle on default. Second, it held that since the insurer had repaired the vehicle, and the repaired vehicle was thereafter lawfully repossessed by the co-owner, the option of payment of the insured sum was no longer available; any claim for residual damage or under the hire-purchase agreement had to be pursued separately. Third, it held that although loss of user was pleaded with sufficient particularity, it was a special damage requiring strict proof, and the High Court's award of Kshs 25,000/- per month rested on no evidence at all. The Court allowed the appeal, set aside the High Court judgment in its entirety, restored the trial court's dismissal of the suit, and directed each party to bear its own costs of the appeal.

Key legal issues

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01

Whether the financier CFC Stanbic Bank Limited had a legal and insurable interest in the insured motor vehicle

Holding

Yes. The Bank was a registered joint owner by virtue of financing the purchase and the policy's hire purchase endorsement recognised its interest in monies payable.

Reasoning

Insurable interest arises from the assured's relationship with the subject matter, including legal or equitable rights or liability. The Certificate of Registration named the Bank as owner, and clause M15 of the policy (the Hire Purchase Endorsement) expressly declared that monies payable for loss or damage not made good by repair, reinstatement or replacement would be paid to the owners. The Bank therefore had an insurable interest and could repossess on default under hire-purchase law.

p. 5
02

Whether the High Court had a legal basis to award the Respondents the full insured sum of Kshs 2,250,000/-

Holding

No. The insurer had opted to repair the vehicle; after repair the joint-owner Bank lawfully repossessed it, exercising the reinstatement option, so the payment option was unavailable and the Respondents' remedies lie under the hire-purchase agreement.

Reasoning

A comprehensive motor policy is a contract of indemnity: the assured is entitled only to compensation for actual loss and cannot be overcompensated. Since the insurer repaired the vehicle and the repaired vehicle was then lawfully repossessed by the co-owner financier on default, the Respondents suffered no loss of the insured sum under the policy. Any claim lies against the co-owner under the hire-purchase agreement, and residual damage after repair must be proved.

p. 7
03

Whether the loss of user award of Kshs 25,000/- per month was supportable in law

Holding

No. Though pleaded with sufficient particularity and correctly characterised as special damage, the award was unsupported by any proof, and the High Court erred in making it.

Reasoning

Loss of user was not an expected damage under the policy and so was special damage requiring specific averment and strict proof. Hypothetical loss may be estimated without the balance-of-probabilities test, but the claimant must still deploy the best evidence reasonably available. The High Court itself acknowledged there was no specific evidence, only an estimate, so the award had no legal foundation.

p. 9

Legal principles established

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  • A second appeal to the Court of Appeal lies only on matters of law
  • A financier registered as a joint owner of an insured motor vehicle has an insurable interest in it
  • Under hire-purchase law, an owner in default may terminate the hiring and take immediate possession of the goods from the hirer or any person detaining them
  • Where an insurer opts to repair the insured vehicle, the option of payment of the insured sum is no longer available, and the insured may only claim the residual damage persisting after repair
  • Loss of user under a contract of insurance that does not provide for it is a special damage which must be specifically pleaded and strictly proved, though flexibility is allowed in the manner of proof; where quantification involves a hypothetical exercise, the court makes the best attempt it can but the claimant must still deploy the best evidence reasonably available

Court orders

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  1. 1.The judgment of the High Court of Kenya at Nakuru (T. Matheka J.) delivered on 23rd April 2020 in Nakuru High Court Civil Appeal No. 155 of 2017 is set aside in its entirety
  2. 2.The original judgment of the Chief Magistrate's Court in Nakuru (Hon. L. Gicheha SPM) in Nakuru Chief Magistrate's Civil Case No. 589 of 2013 is upheld
  3. 3.Each party shall bear their own costs of the appeal

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21, Laws of KenyaSection 72(1)

Cases cited (19)

  • Stanley N Muriithi & Another vs Bernard Munene Ithiga
    [2016] eKLR
  • AIG Insurance Company Limited vs Benard Kiprotich Kirui
    [2022] eKLR
  • Joseph Chege Gitau vs CFC Stanbic Bank Limited
    [2008] eKLR
  • Aineah Likuyani Njirah vs Aga Khan Health Service
    [2013] eKLR
  • National Bank of Kenya Ltd vs Pipe Plastic Sankolit (K) Ltd & Another
    [2001] eKLR
  • Madison Insurance Company Ltd vs Solomon Kinara T/A Kisii Physiotheraphy Clinic
    [2004] eKLR
  • Doa Doa Tented Camp and Lodges Limited vs Jubilee Insurance Company of Kenya
    [2021] eKLR
  • Patrick Muiru Kamungua vs Kaylift Service Ltd & Another
    [2021] eKLR
  • Independent Electoral and Boundaries Commission & Another vs Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • Raila Amolo Odinga & Another vs IEBC & 2 Others
    [2017] eKLR
  • Daniel Otieno Migore vs South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Ndishu & Another vs Muriungi
    (Civil Appeal No. 3 of 2020) [2022] KEHC 2 (KLR)
  • Hahn vs Singh
    (1985) KLR 716
  • Samuel Kariuki Nyangoti vs Johan Distelberger
    [2017] eKLR
  • Kanju & Another vs Tipper Hauliers Limited
    (Civil Appeal No. 43 of 2019) [2022] KEHC
  • Hadley vs Baxendale
    (1854) 9 Ex 341
  • Jackson K Kiptoo vs The Hon Attorney General
    [2009] KLR 657
  • Parabola Investment Limited & Another vs Browallia Cal Limited
    (2011) QB 477
  • National Security Fund Board of Trustees vs Sifa International Limited
    [2016] eKLR
On appeal from
High Court of Kenya at Nakuru
Nakuru H.C. Civil Appeal No. 155 of 2017
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act, Chapter 21, Laws of Kenya (second appeal on matters of law)

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, "UAP Insurance Company Ltd v Maina & another (t/a Sawa Sawa Paints and Allied Products) (Civil Appeal E078 of 2021) [2024] KECA 392 (KLR)", Case Analysis (2024). Nakuru Civil Appeal (Court of Appeal) - Memorandum of Appeal dated 27th September 2021, arising from Nakuru H.C. Civil Appeal No. 155 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/392/eng@2024-04-12

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