Stanley Kinoti Mburugu v Madison Insurance Co Ltd

Contracts of insurance are generally contracts of indemnity; the assured must have an interest in the subject matter, otherwise he incurs no loss upon the insured event. The vehicle had been sold and was no longer available to be repaired or replaced when judgment was delivered. Following Peters v General Accident Fire & Life Assurance and Smith v Ralph, an insurance policy does not extend beyond the sale of the insured property. Utmost good faith required the appellant to disclose the sale. Deferring to the concurrent finding of the courts below, the Court held the appellant had no insurable interest.

Relying on Ouma v Nairobi City Council, Banque Indosuez v D J Lowe & Co Ltd, McGregor on Damages, Esso Petroleum v Southport Corporation and Gandy v Caspar Air Charters Ltd, the Court reaffirmed that special damages must be stated with certainty in the pleadings and proved strictly, since pleadings exist to give fair notice of the case to be met. The appellant did not particularise the special damages allegedly suffered, nor plead salvage value or assessment. Such material pleading deficiencies are not technicalities curable under Article 159 or the Oxygen rule.

Adopting the statement in Charles Kipkoech Leting v Express (K) Ltd and the earlier authorities cited there (including Maina v Mugiria), the Court reiterated that on a second appeal it deals only with questions of law, and must accept findings of fact of the lower courts unless no reasonable tribunal could have reached them on the evidence. This framed its deference to the concurrent factual finding on the sale of the vehicle and loss of insurable interest.