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Court of AppealDismissedCourt of Appeal at Mombasa, appeal against the judgment in HCCA No. 250 of 2019 (arising from CMCC No. 816 of 2017)

Maghema & another v The Heritage Insurance Company Ltd (Civil Appeal E093 of 2023) [2026] KECA 1574 (KLR)

Court of Appeal of Kenya
31 July 2026
5,711 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that an insurer can refuse to pay when a motorcycle insured for one use carries passengers instead.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Mombasa against the judgment of the High Court (Olga Sewe, J.) of 9th June 2022, which had affirmed the dismissal of a declaratory suit under the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405. The appellants, legal representatives of a pillion passenger killed in a road accident on 30th June 2012, sought to hold The Heritage Insurance Company Limited liable to satisfy a judgment of Kshs. 1,486,160 awarded in the primary suit. Both courts below had concurrently found that the policy, though valid at the material time, did not extend cover to the deceased. The Court of Appeal, exercising jurisdiction confined by Section 72(1) of the Civil Procedure Act to matters of law, isolated a single issue: whether the insurer acted within the terms of the policy in avoiding liability. It declined to entertain grounds raised for the first time on second appeal, holding that such points may be admitted only exceptionally and sparingly. On the merits, the Court examined the policy (DEXH 1), noting exclusions covering carriage of passengers for hire or reward, and applied the doctrine of utmost good faith, finding that the insured had failed to disclose that the motorcycle would be used to carry passengers. The Court held the insurer had discharged its burden on a balance of probabilities and affirmed the decisions below. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Scope of second appellate jurisdiction under Section 72(1) of the Civil Procedure Act

Holding

The Court is confined to matters of law; grounds raised for the first time on second appeal cannot be considered absent exceptional circumstances.

Reasoning

Section 72(1) confines a second appeal to matters of law. The Court relied on a long line of authority (Leting, Muriithi, Kenya Breweries) that it must accept concurrent findings of fact unless no reasonable tribunal could have reached them or the decision is perverse. The appellants' grounds on scrutiny of the policy document and burden of proof were raised for the first time before this Court and, applying Alwi A Saggaf, Kenya Commercial Bank v Osebe and Kenya Hotels, could not be entertained save exceptionally.

p. 9
02

Whether the insurer was entitled to avoid liability for the deceased pillion passenger

Holding

Yes. The policy excluded carriage of passengers for hire or reward, and the insured's use of the motorcycle outside the insured purposes entitled the insurer to avoid the risk.

Reasoning

The policy, taken out by the registered owner through Bemca Insurance Agencies, was valid at the date of the accident and covered third-party risks, but was subject to Clause MC001 excluding carriage of passengers for hire or reward. The deceased was described by the appellants themselves as a 'pillion passenger'. The insured failed to disclose that the motorcycle would be used to carry passengers, contrary to the doctrine of utmost good faith, and the insurer discharged its burden on a balance of probabilities.

p. 10

Legal principles established

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  • On a second appeal the Court of Appeal confines itself to matters of law only and will not disturb concurrent findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
  • A point of law raised for the first time on second appeal will not be entertained save in exceptional circumstances, and the discretion to admit a new point must be exercised sparingly.
  • An insurer's duty to satisfy a judgment under Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act arises only where the liability is covered by the policy; liability for uses excluded by the policy need not be honoured.
  • Insurance contracts are governed by the doctrine of utmost good faith, imposing on the insured a legal obligation to disclose all material facts affecting the risk insured against; failure to disclose such facts prejudices third-party claimants.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent
On appeal from
High Court of Kenya at Mombasa
HCCA No. 250 of 2019
Jurisdiction invoked
Section 72(1) of the Civil Procedure Act (second appeal on matters of law only)

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, "Maghema & another v The Heritage Insurance Company Ltd (Civil Appeal E093 of 2023) [2026] KECA 1574 (KLR)", Case Analysis (2026). Court of Appeal at Mombasa, appeal against the judgment in HCCA No. 250 of 2019 (arising from CMCC No. 816 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1574/eng@2026-07-31

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