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High CourtPartially AllowedEldoret Chief Magistrate’s Civil Case No. 612 of 2010 (appeal therefrom)

Madison Insurance Company Kenya Limited v. Daniel Achakai Okasiba

High Court of Kenya
30 April 2020
2,758 words in judgment
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The bottom line

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When claiming insurance money, you must prove the exact amount you are owed, and the written policy terms are the final word.

What this practically means

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Executive summary

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This was a first appeal from the Principal Magistrate's Court at Eldoret (Hon. M. Njagi), which had entered judgment for the Respondent, Daniel Achakai Okasiba, against Madison Insurance Company Kenya Limited for Kshs. 122,000/= plus interest and costs, being sums the Respondent claimed as unpaid contribution under two ten-year School Fees Policies taken out on 1 August 1999 with monthly premiums of Kshs. 500/= per policy. The Appellant appealed on grounds that the trial magistrate failed to consider and properly interpret the policy terms and awarded unproved sums. Olga Sewe, J., re-evaluated the evidence as required on a first appeal. Applying the parol evidence rule (Prudential Assurance) and the burden of proof under Section 107(1) of the Evidence Act (Serraco), the court held the trial magistrate misdirected itself in awarding the claimed sums without justification; the policy documents showed a basic sum assured of Kshs. 25,600/= per policy plus bonuses. The Respondent's own witness statement admitted receipt of Kshs. 51,200/=. Only the conceded premium overpayment of Kshs. 2,000/= and a lumpsum bonus of Kshs. 1,684/= remained unpaid. The appeal was allowed with costs, the judgment of 23 February 2015 was set aside and substituted with judgment for the Respondent of Kshs. 3,684/= only, with interest at court rates from the date of the lower court judgment and costs.

Key legal issues

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01

Interpretation of written insurance contracts and the parol evidence rule

Holding

The lower court ought to have strictly relied on the policy documents; the sum assured payable at maturity was Kshs. 25,600/= per policy (stated elsewhere as Kshs. 26,500/=) plus unpaid bonuses, not the Kshs. 120,000/= claimed.

Reasoning

The court applied the parol evidence rule as cited in Prudential Assurance, holding that the formal contract records the bargain and the parties' true intentions. The policy documents showed a basic sum assured with bonus participation and an optional cash-back feature for which there was no evidence the Respondent signed up.

p. 3
02

Burden of proof on the plaintiff to justify sums claimed

Holding

It was a misdirection for the trial magistrate to award the sum claimed without justification; the Respondent's figures in the Directions for Payment Forms were unexplained and unproved.

Reasoning

Relying on Section 107(1) of the Evidence Act and Serraco Limited v. Attorney General, the court held that averments must be proved on a balance of probabilities and that unproved averments are not evidence on which a decision can be founded. The Respondent never explained the basis of the figures he claimed.

p. 3
03

Whether the sum assured and bonuses were paid

Holding

The Respondent admitted receiving Kshs. 51,200/=; only the conceded premium overpayment of Kshs. 2,000/= and the lumpsum bonus of Kshs. 1,684/= remained unpaid, totalling Kshs. 3,684/=.

Reasoning

DW1 testified that payment of Kshs. 53,384/= was made vide Cheque No. 205680, and the Respondent's own witness statement in the Supplementary Record of Appeal admitted receipt of Kshs. 51,200/=. The court therefore found only the overpayment and bonus outstanding.

p. 3

Legal principles established

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  • On a first appeal, the court must re-evaluate the evidence and reach its own independent conclusions, while making allowance for not having seen or heard the witnesses.
  • No parol or extrinsic evidence is admissible to contradict, vary or alter the terms of a written contract; interpretation must be found in the document itself.
  • A party who desires judgment on facts he asserts bears the burden of proving those facts; unproved averments are not evidence.

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.Lower court's judgment dated 23 February 2015 set aside
  3. 3.Judgment substituted with judgment in the Respondent's favour for Kshs. 3,684/= only
  4. 4.Interest at court rates from the date of the lower court judgment
  5. 5.Costs of the lower court to the Respondent

Authorities

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Legislation

  • Evidence Act, Chapter 80 of the Laws of KenyaSection 107(1)

Cases cited (5)

  • Prudential Assurance Co. Ltd vs. Sukhwinder Singh Jutley & Another
    [2007] eKLR

    Parole evidence rule - no oral or extrinsic evidence to contradict or vary terms of a written contract

  • Selle & Another vs. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123

    Duty of first appellate court to re-evaluate evidence and draw its own conclusions

  • Serraco Limited vs. Attorney General
    [2016] eKLR

    Burden on a party to prove averments in the plaint on a balance of probabilities

  • Kirugi & Another v. Kabiya & 3 Others
    [1987] KLR 347

    Proof of averments on a balance of probabilities

  • CMC Aviation Ltd v. Crusair Ltd (No1)
    [1987] KLR 103

    Averments are not evidence until proved or disproved or admitted; no decision can be founded on them

On appeal from
Principal Magistrate's Court, Eldoret
Eldoret Chief Magistrate’s Civil Case No. 612 of 2010
Jurisdiction invoked
First appeal from the Principal Magistrate's Court (appellate jurisdiction of the High Court over subordinate court civil appeals)

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, "Madison Insurance Company Kenya Limited v. Daniel Achakai Okasiba", Case Analysis (2020). Eldoret Chief Magistrate’s Civil Case No. 612 of 2010 (appeal therefrom). Source: 

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