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Case Brief · caselaw.co.ke
High CourtDismissedCivil Case No. 163 of 2011· [2019] KEHC 9114 (KLR)

The Jubilee Insurance Company of Kenya Limited v Ronald Gathuku Kiwiri & John Wanjiru Mukundi

High Court of Kenya
28 February 2019
JSJ. K. Sergon
1,399 words in judgment
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·~6 min to read original · ~4 min brief

The bottom line

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Insurers must prove their policy breach claims using strong, reliable evidence, not just assumptions or hearsay.

What this practically means

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Executive summary

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Jubilee Insurance Company of Kenya Limited sued Ronald Gathuku Kiwiri (1st defendant) and John Wanjiru Mukundi (2nd defendant) by plaint dated 2nd May 2011, seeking declarations that it was entitled to avoid motor vehicle policy P/NRB/2010/2009/34281 covering vehicle KAR 947C, that it was not liable to satisfy any claims or judgments obtained under that policy, and payment of Ksh.33,062,00 with interest at 12% per annum. The plaintiff alleged that the 1st defendant breached the policy by using the insured vehicle as a taxi, contrary to policy terms excluding use for hire, reward or commercial travelling. The plaintiff's evidence comprised its legal officer (PW1) and an investigation manager from Invesport Insurance Investigators (PW2), who produced an investigation report. The defence, through the insured (DW1) and his driver Peter Mwangi Mugwe (DW2), maintained the vehicle was used for personal errands and school runs, and that on the day of the accident the driver had borrowed it to attend his child's birthday party. The court identified the sole issue as whether the vehicle was used in breach of the policy terms. It found the investigators' report unreliable: statements from unnamed taxi operators were hearsay, and the supporting receipt was issued months after the accident and concerned a different vehicle. The court accepted the defence evidence and held the plaintiff failed to prove breach on a balance of probabilities, leaving it no justification to repudiate the insurance contract. The suit was dismissed with costs to the defendant on 28th February 2019.

Key legal issues

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01

Whether the insured vehicle was used as a taxi in breach of the policy's use restrictions

Holding

The plaintiff failed to prove the breach; the vehicle was used within the limits set by the policy

Reasoning

The investigators' report relied on unnamed taxi operators, amounting to inadmissible hearsay. The receipt attached to the report was issued on 22.2.2011, long after the accident, and related to a different vehicle (KBF 517B), not the insured vehicle. The defence evidence that the vehicle was used for personal errands and school runs was accepted.

p. 2
02

Whether the insurer was entitled to repudiate the policy

Holding

No; the plaintiff had no justification to repudiate the contract of insurance

Reasoning

Having failed to establish breach of the policy terms on a balance of probabilities, the insurer could not avoid the policy or disclaim liability for claims arising from the accident of 26.9.2010.

p. 2

Legal principles established

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  • An insurer seeking to repudiate a policy for breach of a use restriction must prove the breach on a balance of probabilities with credible and reliable evidence

Court orders

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  1. 1.The suit is dismissed with costs to the defendant
Jurisdiction invoked
Original civil jurisdiction of the High Court (insurance contract dispute)

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, "The Jubilee Insurance Company of Kenya Limited v Ronald Gathuku Kiwiri & John Wanjiru Mukundi", Case Analysis (2019). Civil Case No. 163 of 2011. Source:

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