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High CourtPartially AllowedNot stated in the judgment text provided

Nakuru Polyplast Ltd v Mayfair Insurance Co. Ltd & another; Bank of Baroda (Kenya) Ltd & 2 others (Interested Parties)

High Court of Kenya
14 May 2020
9,970 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~40 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The plaintiff, Nakuru Polyplast Ltd, sued Mayfair Insurance Co. Ltd (1st defendant) and Tevee Insurance Brokers (2nd defendant) seeking kshs.68,550,000, special damages of kshs.2,049,000, excess damages and interest under fire insurance policy No. 1/01/040/1612/2013 covering the period 1st October 2015 to 30th September 2016. Its premises were gutted by fire on 31st January 2016 and the insurer repudiated the claim alleging the fire was a wilful act of, or connived at by, the insured. Bank of Baroda and two chargor companies were joined as interested parties; the bank sought to exercise its power of sale over charged properties after the plaintiff defaulted on credit facilities. The court framed four issues: whether the plaintiff caused the fire, entitlement to indemnity and its extent, whether the bank should be restrained, and costs. On the evidence - including Government Chemist results negative for accelerants, inconclusive police investigations, recanted employee statements and no proof of intrusion - the court found no conclusive proof of arson or connivance by the plaintiff. It held the insurer had a duty to value the property and found no fraudulent undervaluation. However, liability was capped at the sum assured. Judgment was entered for the plaintiff against the 1st defendant for kshs.64,850,000. The court declined to restrain the bank from exercising its power of sale, since the plaintiff admitted the debt and default, and awarded the 1st defendant's costs to the plaintiff and the interested party's costs against the plaintiff.

Key legal issues

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01

Whether the plaintiff wilfully caused or connived at the fire

Holding

Not proved; no conclusive evidence of arson by the plaintiff

Reasoning

The insurer's investigators relied on recanted employee statements, business decline, an expanded ventilation hole and three seats of fire. However, Government Chemist analysis found no accelerants, police investigations were inconclusive, no one was arrested or charged, and no intrusion through the hole was established. The court found the deduction-based case insufficient to prove wilful act or connivance.

p. 10
02

Whether the plaintiff is entitled to indemnity and to what extent

Holding

Entitled to indemnity limited to the sum assured of kshs.64,850,000

Reasoning

Premiums were fully paid, no arson was proved, and the alleged undervaluation was not demonstrated to be fraudulent since the insurer had a duty to value the property and no alternative valuation was tendered. However, the sum assured caps liability, so the claimed kshs.68,550,000 could not be awarded.

p. 10
03

Whether the bank should be restrained from exercising its power of sale

Holding

No; the plaintiff admitted default and the court would not interfere with the charge terms

Reasoning

The plaintiff did not dispute the debt, arrears, demand and statutory notices. The charge gave the bank power to sell the chargors' properties on default. The plaintiff ought to have renegotiated with the bank after the fire; no evidence of such a move was tendered, so the court declined to stand between the contracting parties.

p. 11

Legal principles established

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  • An insurer bears a duty to value the property before issuing a policy; the insured's valuation claim, absent contrary evidence of ill intention, is satisfactory
  • Liability under an insurance policy cannot exceed the sum assured
  • An insurer alleging arson/connivance by the insured must prove it; inconclusive investigations and negative accelerant results do not discharge that burden

Court orders

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  1. 1.Judgment entered for plaintiff against the 1st defendant for kshs.64,850,000
  2. 2.Declined to issue any restraining orders against the interested party
  3. 3.Costs to be paid by the 1st defendant to the plaintiff
  4. 4.Plaintiff to pay costs of the suit to the interested party
Jurisdiction invoked
Original civil jurisdiction of the High Court (insurance contract claim); no specific constitutional or statutory provision stated

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, "Nakuru Polyplast Ltd v Mayfair Insurance Co. Ltd & another; Bank of Baroda (Kenya) Ltd & 2 others (Interested Parties)", Case Analysis (2020). Not stated in the judgment text provided. Source: 

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