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Court of AppealDismissed· [2026] KECA 1614 (KLR)

Patrick Omondi Lukiri T/A Triluk Drilling Limited Appellant v Jubilee Insurance Limited

Court of Appeal
31 July 2026
2,957 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Court of Appeal upheld the dismissal of a Kshs 46 million insurance claim because the business owner couldn't prove the fire that damaged his drilling machine.

What this practically means

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Executive summary

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This is a first appeal from the judgment of the High Court at Nairobi (W. A. Okwany, J.) delivered on 23rd January, 2020 in HCCC No. 447 of 2016, dismissing the appellant's claim against Jubilee Insurance Limited. The appellant, who carried on a borehole drilling business as Triluk Drilling Limited, had insured an Ashok Leyland drilling machine with the respondent for Kshs 8 million under a policy running from 7th May, 2015 to 6th May, 2016. On 19th March, 2016 the machine was damaged in a fire at Malanga Primary School. The respondent repudiated liability, invoking a policy exclusion for loss or damage due to electrical or mechanical breakdown, its assessors attributing the damage to a hosepipe failure. The High Court found the appellant had failed to prove his case: no site employee testified, the rival assessors' evidence was secondary if not hearsay, maintenance logs showed the machine had not been serviced for nearly a year, and there was no documentary proof that the drilling exercise took place. On appeal, the appellant argued that the judge considered unpleaded matters and failed to apply a reverse burden of proof to the exclusion clause. The Court of Appeal (Musinga, Lilan and Okello, JJ.A), applying rule 31(1)(a) of the Court of Appeal Rules (2022) and adopting the exposition in Mohamed Ali Baadi, held that expert evidence does not trump all other evidence and that conflicting expert opinions must be tested against the background of all the other evidence. It was satisfied the trial court dismissed the suit not by preferring one expert report over the other but on the totality of the evidence, and that the complaint about unpleaded matters was misplaced. The appeal was dismissed, the trial judgment upheld, and costs of the appeal awarded to the respondent.

Key legal issues

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01

The mandate of a first appellate court in relation to findings of fact.

Holding

A first appeal is a rehearing on both law and fact under rule 31(1)(a) of the Court of Appeal Rules (2022), but the appellate court is slow to disturb factual findings and may do so only where a finding is clearly wrong or material circumstances were ignored.

Reasoning

Rule 31(1)(a) of the Court of Appeal Rules (2022) requires the Court to re-examine both issues of law and fact on a first appeal, which proceeds as a rehearing. Although the Court may reach independent conclusions, it exercises restraint because it did not see or hear the witnesses, following Gitobu Imanyara and Ongwen v Omollo. Interference is justified only where a factual finding is shown to be clearly wrong or where material circumstances or probabilities were ignored. The Court found no such error here.

p. 4
02

The weight to be accorded to expert evidence and the resolution of conflicting expert opinion on causation (accidental fire versus mechanical breakdown).

Holding

Expert evidence is merely part of the whole body of evidence; it does not trump other evidence, must not be considered in a vacuum, and where opinions conflict the court must test them against all other evidence and give reasons for its preference.

Reasoning

The Court adopted the High Court's four-point framework in Mohamed Ali Baadi (as reproduced in Kinyanjui v Mburu): expert evidence must be given appropriate weight; it does not trump other evidence; it must not be considered in a vacuum or artificially separated from the rest of the evidence; and where opinions conflict, the judge must test them against all other accepted evidence and give reasons for the preference. Applying that framework, the trial court did not prefer one assessor's report but dismissed the suit on the totality of the evidence.

p. 5
03

Whether the trial judge erred in considering the machine's maintenance history and the absence of documentary proof of the drilling contract, matters said not to be pleaded.

Holding

The complaint was misplaced; the judge's findings were directed to whether the appellant proved the pleaded peril of fire, and the maintenance and contract-proof matters went to that proof.

Reasoning

The appellant, relying on IEBC v Mutinda Mule and Galaxy Paints, contended that issues flow from pleadings and that the judge strayed into unpleaded maintenance and contract-proof questions. The Court held the complaint misplaced: the judge's findings were directed to whether the appellant proved the pleaded peril of fire, and the maintenance history and absence of a drilling contract went to that proof. The Court was satisfied the trial court reached the correct conclusion on the totality of the facts.

p. 6
04

The evidential consequences of failing to call material eyewitnesses and to produce documentary proof of the insured event.

Holding

The trial court was entitled to treat the non-attendance of the site employees and the absence of documentary proof of the drilling contract as gaps that undermined the appellant's proof of the insured peril.

Reasoning

The respondent, citing Karugi v Kabiya, argued that the appellant's failure to call the machine operator or other site witnesses attracted an adverse inference. The Court endorsed the trial court's observation that the appellant's employees were identifiable site workers yet none testified, and that no contract or other documentary proof showed the drilling was taking place at Malanga Primary School. These gaps, together with maintenance logs showing the machine had not been serviced for nearly a year, founded the dismissal.

p. 6

Legal principles established

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  • On a first appeal the appellate court must re-examine both law and fact, but it will interfere with a trial court's findings of fact only where those findings are shown to be clearly wrong or where material circumstances or probabilities were not considered.
  • Where expert opinions conflict, the court must test them against the background of all the other evidence it accepts and give reasons for preferring one expert's evidence over the other.
  • A trial court determines causation and liability on the totality of the evidence, and evidential gaps such as the non-attendance of eyewitnesses to the insured event may legitimately found a dismissal.

Court orders

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  1. 1.The appeal is dismissed and the judgment of the High Court (Okwany, J.) in HCCC No. 447 of 2016 is upheld.
  2. 2.Costs of the appeal are awarded to the respondent.
On appeal from
High Court at Nairobi
HCCC No. 447 of 2016
Jurisdiction invoked
First appeal from the High Court to the Court of Appeal; the Court exercises its mandate under rule 31(1)(a) of the Court of Appeal Rules (2022) to re-examine both issues of law and fact. No constitutional provision is expressly invoked in the judgment.

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, "Patrick Omondi Lukiri T/A Triluk Drilling Limited Appellant v Jubilee Insurance Limited", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1614/eng@2026-07-31

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