Madison Insurance Co (k) Ltd v John Kioko Muange

3. The Respondent then filled a motor theft claim form, from the Appellant on the 6/2/2016. 4. On or about the 30/8/2016 the Respondent received a letter from the Appellant informing him that they will not honour their terms of the indemnity contract, claiming the Respondent falsified information on the date of the loss of the motor vehicle, that the motor vehicle was under a third-party policy at the time of the loss and that the insured paid for the comprehensive cover after the alleged loss. 5. The Respondent position was that the Appellant breached the indemnity contract that validly existed between them thus necessitating the institution of the suit. 6. That as a result of the Appellant’s breach he was subjected to loss and suffered material damage. 7. The Respondent sought for the following prayers: a. A declaration that the Plaintiff is entitled to be indemnified by the Defendant for the total sum insured under the policy of insurance and damages for loss of user from the date of the theft. b) General damage. c) Costs of this suit Appellant’s case 8. The Defendant/Appellant filed a Statement of Defence dated 11/7/2017 opposing the suit and averred that there was falsehood and non-disclosure of material facts by the Plaintiff/Respondent calculated at misleading the court. 9. The Appellant set out particulars of falsehood and non-disclosure on the part of the Respondent as follows :1. Failing to disclose that the motor vehicle registration number KCF 452F was stolen on the night of 22/12/2015. 2. Failing to disclose that he had indeed called the tracking company on 23/12/2015 informing them that his vehicle KCF 452F had been stolen the previous night in Athi River. 3. Failing to disclose that policy number KTG/702/097428/2015 was allocated on 24/12/2015. 4. Failing to disclose that Certificate No. B7634721 was issued on 24/12/ 2015. 5. Failing to disclose that Certificate No. B7634721 was back-dated to 2/12/ 2015. 6. Failing to disclose that he paid a premium of Kshs.9,000/- on 24/12/2015. 7. Failing to disclose that the type of insurance was changed from motor commercial carriage of own goods to PSV-Private Hire on 5/1/2016 and policy No. changed KTG/704/098909/2015. 8. Failing to disclose that a PSV motor insurance certificate was subsequently issued on 5/1/2016 after addition premium of Kshs.16,000/- was paid. 9. Failing to disclose that the subject loss is fraudulent as the vehicle was stolen on 22/12/ 2015 before the Plaintiff obtained cover on 24/12/2015. 10. Failing to disclose that the subject theft was stage managed and that the vehicle KCF 452F had been stolen on the night of 22nd-23rd December 2015 in Athi River. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16778/eng@2024-09-17 2

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11. Failing to disclose when paying premium that the vehicle KCF 452F was stolen on night of 22nd/23rd December 2015 long before he paid any premium to the Defendant. 12. Failing to disclose that he colluded with a former employee of the Defendant to back date the Policy taken on 24/12/2015 to read 2/12/2015. 13. The Appellant denied receiving any demand and notice of intention to sue from the Plaintiff. 14. The Appellant denied the Jurisdiction of this honourable Court in hearing and determining the suit and this prompted the Appellant to file Misc. Civil application No. 649 of 2017 in the High Court at Milimani Law Courts seeking to transfer the suit PMCC No. 238 of 2017 at Kajiado Law Courts to the Chief Magistrates Court, Milimani Commercial Courts at Nairobi for trial and determination. The suit was transferred to Milimani Law Courts, Nairobi and registered as Milimani CMCC No. 10294 of 2018. 15. The matter proceeded for hearing on 13/10/2021. Respondent’s Evidence 16. PWI was No. 52703 PC Stephen, attached at Thika Police Station. He produced OB. 69/4/2/2016 as PEX1. That the report was made by Jacob Mwaniki, the same was of a motor vehicle. 17. In Cross examination he stated that one motor vehicle was stolen 4/2/16 at night before mid-night, Jacob Kilonzo was the driver of the vehicle. He asked to know the place where the vehicle was parked and he was with the owner of the vehicle John Kioko Muange, who came for the insurance. 18. He established that the vehicle was hired from Athi River to Thika with owner when he reached Thika the vehicle was parked at club leo parking and the driver went to eat. Jacob was to the only witness to the incident. 19. PW2 was John Kioko Muange, the Plaintiff (Respondent) in this case. He relied on his witness statement and produced in evidence as PEX1-9, the 9 documents on his list of documents dated 5/2/2020. 20. He stated that the vehicle in issue was his and was insured by Madison Insurance. It was stolen on 4/2/16 and the insurance failed to compensate him. 21. On cross-examination, he stated that he owned Nissan KCK 452F. The same was bought on hire purchase. He did not produce ownership documents. The other appearance was not part of his exhibits. The vehicle was stolen while in custody of his driver. He did not witness the theft. Jacob Kilonzi was his driver, he did not know where he is, he escaped. PW2 confirmed that the driver ought to be his key witness. That the Insurance cover was written in English and he did not understand it well. It was on 30/8/16. He confirmed PEX5 was a demand letter. He recalled he did not answer to the letter. He had not finished paying for the comprehensive cover. They had agreed he pays in 3months as per PEX2. He did not have an agreement on payment plan. That PEX4 was the 1st instalment-payment at the time of theft he had not fully paid the entire amount. 22. In re-examination, he stated that upon payment of insurance cover, he was not given any document, he was only given a sticker that is normal with Madison Insurance. He had made payment on 8/2/21 given that it was the balance of what he had paid the 1st instalments, the last payment was on 5/2/21. Upon registering to the insurance, he was to pay the balance as they follow up with his issue. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16778/eng@2024-09-17 3

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Appellant’s Evidence 23. DW1 David Kamau Kimani testified that he is an insurance investigator. He has a firm named Parity Loss Assessors. He works for about 15 insurance companies. He was familiar with the matter. He prepared an investigation report which was produced as DEX1 in this matter. His findings were that, the vehicle was not stolen on 4/12/2015 but on the 22/12/2015, also the insurance was not properly done, it commenced on 24/12/15 the cost was issued and backdated on 2/12/15. The vehicle had been purchased on 27/10/15 through hire purchase as 3rd party insurance, the Plaintiff did not have any of valid insurance before taking cover with Madison. He got in touch with the seller of vehicle, they had installed a tracking device, he confirmed the manager called him to assist in tracking, the vehicle was seen to take off on 23/12/15 to Machakos up to Mwala what the tracking device had recorded. His manager paid for insurance cover upon which his vehicle was insured. 24. In cross-examination, he stated that the subject vehicle was brought vide hire purchase and ownership was to revert to purchaser upon completion of the payment. He confirmed it was jointly owned with Kushi Motors Co. Ltd. He called them to confirm, they sold it to Plaintiff on hire purchase. The vehicle went missing on a different date than the reported date. It got lost on 23/12/15. He did not request for call logs. He had call logs for the insurance. Call logs are stored for 3months only. They were appointed 3 months after the alleged report. The insurance cover was backdated. A tracking device is usually sent by the tracking company. Its common on vehicles purchased on hire purchase. 25. DW2 was Moris Maina, he stated that he works for Madison Insurance Co. As the Claims Manager. He adopted his witness statement dated 10/12/2019 as his evidence. 26. In cross-examination, he confirmed to be knowing the Plaintiff who took an insurance cover with them for his vehicle KCF 425F. He bought from Kush Motors on a hire purchase. He was an insurable interest; it is true that the cover was backdated. The Plaintiff rushed to Kitengela offices on 24/12/2015 and obtained a cover starting on 2/12/2015. It was the Plaintiff and one staff who was later fired for misconduct. The matter was forwarded to investigation for fraud. Both the Plaintiff and the staff were involved according to the investigators. The theft was on the night of 22nd and 23rd Dec 2025. That didn’t see the OB. 27. In re-examination he stated that the investigation report is part of his evidence. 28. Upon considering the evidence adduced, the trial court delivered a judgment on 25/2/2022 in which it found that the Appellant had failed to prove its defence and proceeded to dismiss it and that it believed on the evidence tendered by the Respondent that his vehicle KCF 452 F was stolen and the same had a valid insurance cover. He resents to be indemnified. The court thus allowed the Respondent’s suit to the extend that it made a declaration that the Respondent was entitled to be indemnified by the Defendant for the total sum insured under the policy of insurance plus costs and interest. 29. Aggrieved by the said judgment, the Appellant lodged the appeal herein vide a Memorandum of appeal dated 17/3/2022. The Memorandum raises 5 grounds of appeal. 30. This being a first appeal, this court is reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) EA 123. (1958) E.A page 424. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16778/eng@2024-09-17 4

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31. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that:A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. 32. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion. Analysis & Determination 33. This court has looked at the Record of appeal and considered the grounds of appeal and the rival submissions by the parties’ counsel and culls out the following issues as requiring determination: i) Was there an insurance contract between the Parties herein. ii) Was the Insurance contract repudiated, if yes what reasons were put forward by the Appellant Insurer for the repudiation of the claim. iii) Was the Appellant Insurer justified in taking that position? iv) Was the trial court justified in making a finding that the Respondent is entitled to be indemnified by the Defendant for the total sum insured under the policy of insurance plus costs and interest. i. Was there an insurance contract between the Parties herein; 34. The Respondent has not pleaded the actual insurance policy number in his claim or referred to it in his witness statement or testimony in court. In his list of documents, he lists 3 duplicate certificates of insurance for motor vehicle KCF 425F which he produced as PEX.2 but he did not specify which of them was applicable to this matter. 35. The Statement of defence at paragraph 7 on particulars of falsehood and non-disclosure shows policy number KTG/702/097428/2015 and KTG/704/098909/2015 as the policies which the Respondent failed to disclose to it as being backdated and which changed the type of insurance respectively. 36. The Investigation report by Parity Loss Assessors shows that the subject vehicle was initially insured for commercial usage-carriage of own goods under policy number KTG/702/097428/2015 but the cover was changed to PSV- carriage of fare paying passengers on 05/01/2016 under policy number KTG/704/098909. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16778/eng@2024-09-17 5

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37. The entire judgment of the trial court has not referred to any insurance policy number. Be that as it may, I have taken into account the pleadings and particularly the Statement of Defence and the testimony of DW2, the Appellant does not deny that they insured the Respondent but only contends the claim is founded on falsehoods and non-disclosure on the part of the Respondent. What has not been proved by either part is the type of insurance that was in existence at the time of the alleged incident. Whatever the case, this court is convinced that the Appellant was the Respondent’s Insurer. ii) Was the Insurance contract repudiated, if yes, what reasons were put forward by the Insurer for the repudiation of the claim? 38. It is not in dispute that the insurance contract between the Parties herein was repudiated. 39. It is common cause that the repudiation was contained in a letter dated 30/8/2016 (PEX.5 page 85 of the ROA) by the Appellant addressed to the Respondent which reads: Madison Insurance PO Box 47382-00100 Nairobi Our Ref: C/KTG/704/016853/2016 30th August 2016 John Kioko Muange ATHI RIVER Dear Sir, Alleged Theft of Motor Vehicle KCF 452f on 04.02.2016 Insured: Yourself Reference is made to the above matter. We confirm receipt of the investigations report which highlights the following: The alleged theft occurred on 22nd/23rd December 2015 and not 4th February 2016;That cover for the abovementioned vehicle was incepted and paid for after occurrence of the loss;It is established that the vehicle was on third party only cover from 27.10.2015 to 26.11.2015. the insured has declined to give the details of the insurers of the vehicle between 26.11.2015 and 22.12.2015;It is a contravention of the insurance policy terms for the insured to falsify documents with a view to mislead the insurers into making an incorrect claim decision; In line with this, we regret our inability to process the claim further and are closing the claim in this file. Furthermore, we are forwarding the matter to IRA-antifraud arm for further investigations. While we realize our response is not what you may have expected, we ask that you look upon this incident as an exception to an otherwise positive relationship. Given the opportunity, we look forward to demonstrating our ability to fully meet your expectations on your future claims with us. Yours faithfully, Morris Maina https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16778/eng@2024-09-17 6

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Claims Manager 40. From the above letter, it is unequivocal that what is declined or repudiated is the “claim” and not the “policy”. In the case of Patrick Gukura Muraya v Co-operative Insurance Co of Kenya Limited [2019] eKLR, Justice Tuiyott stated as follows: “ As I understand the law, repudiation of an insurance contract differs from repudiation of a claim or as sometimes referred to repudiation of liability under the contract. In the former the substratum of the contract being the policy is disowned and in that event any liability under the policy or insurance contract is resisted. In the latter the policy is accepted as good or valid but for some reason or other arising out of post-contact circumstances, the insurer declines to accept a particular claim. This then leads the discussion to a critical matter. In the two letters in which the Insurer declines the claim, the Insurer states the reasons for the stance taken. What the Insurer repudiates is not the policy but the theft claim itself. However, in the Defence the Insurer not only seeks to expand the scope of repudiation but also the reasons. First, it seeks to repudiate the entire policy and gives such reasons like, that the value of the vehicle was overstated at the time of entering the contract. Then it seeks to add other reasons for repudiating the claim. For example, it asserts that, at the time of the accident, the vehicle was been used for a purpose other than for which it was insured. 41. I now turn to consider the Respondent’s contention that the repudiation made by the Appellant was in breach of the insurance policy. This is considered within the confines of the reasons in the repudiation letter and what was pleaded. 42. From the above cited case and applying the extract to this appeal, clearly what the Appellant repudiated is not the policy but rather the theft claim itself and gave the reasons why and which reasons are elaborated in the reproduced repudiation letter above. 43. A reading of the Plaint establishes that the Respondent based his claim on the repudiation of policy of insurance and this can be discerned from his prayer requesting for a declaration that he be indemnified for the total sum insured under the policy which he alleges to have been repudiated by the Appellant. 44. The Appellant produced a report by Parity Loss Assessors who investigated the circumstances surrounding the theft of the subject motor vehicle. That report of 28/8/2016 (DEX.1 at page 10) gives a conclusion of what could have happened and on which the Appellant based its reasons to repudiate the Claim. 45. This court therefore finds that what the Appellant repudiated was the theft claim and not the policy itself and that the reasons for the repudiation were clearly set out in the letter of repudiation dated 30/8/2016. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16778/eng@2024-09-17 7

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iii) Was the Appellant Insurer justiffed in taking that position? 46. It is trite law that insurance is a contract based on utmost good faith and it is expected of all parties to it to deal fairly and truthfully with one another. In BMK v AIG Kenya Insurance Ltd [2020] eKLR, Lady Justice Maureen A. Odero had this to say: “ There can be no doubt that Insurance contracts are amongst the category of contract which are described as “uberrimae fidae” i.e of utmost good faith and require voluntary disclosure by the parties thereto. 47. According to Newsholme Bros. vs. Road Transport and General Insurance Co. Ltd [1929] All ER 442 at 444: “ …the contract of insurance requires the utmost good faith; the insurer knows nothing; the assured knows everything about the risk he wants to insure and he must disclose to the insurer every fact material to the risk.” 48. Evidence is on record that the Appellant wrote a letter to the Respondent notifying him of the decision and reasons to repudiate the claim following the investigations that had been done and the outcome. The Respondent acknowledged receipt of the same but he did not rebut and/or refute the contents of the letter instead he instituted the claim herein in court. 49. On this issue, this court finds that the Parties’ relationship which was founded on a purported contract of insurance was guided by the principle of uberrimae fidei and one had to essentially abstain from bad faith and act in good faith. The Respondent by opting not to respond to the Repudiation letter gave the Appellant the go ahead to exercise its right to repudiate the claim. 50. Without difficulty, this court finds that the Appellant was justified in taking the position that the Respondent was in breach of his duty to act in utmost good faith at the time of reporting the incident and through the process of making the claim. This Court also finds that the Appellant pleaded the lack of honesty on the part the Respondent (see paragraph 7 of the Defendant) and has by overwhelming evidence proved the allegation. iv) Was the trial court justiffed in making a ffnding that the Respondent is entitled to be indemniffed by the Appellant for the total sum insured under the policy of insurance plus costs and interest. 51. In this appeal, it is clear that the determination of the appeal revolves around the question whether the Respondent proved his case on the balance of probabilities and if so what ought to have been the reliefs awardable. That the burden of proof was on the Respondent to prove his case. 52. While addressing the burden of proof in Kyalo Elly Joy v Samuel Gitahi Kanyeri [2021] eKLR, Justice Odunga cited Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya and referred to a number of cases as follows:Section 107 (1) provides that: “ Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16778/eng@2024-09-17 8

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53. This is called the legal burden of proof. There is however evidential burden of proof which is captured in Sections 109 and 112 of the same Act as follows: Sec. 109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person. Sec. 112. in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him. 54. The two provisions were dealt with in the case of Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that: “ As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 55. It follows that the initial burden of proof lies on the Plaintiff, the Respondent in this appeal, but the same could shift to the Defendant, the Appellant in this appeal depending on the circumstances of the case. 56. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that: “ As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden… is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail fi no evidence at all were given as either side.” 57. I agree that the Court of Appeal’s position in Daniel Toroitich Arap Moi –vs- Mwangi Stephen Muriithi & Another [2014] eKLR espouses the correct legal position that: “ It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side.” 58. The question then is, what amounts to proof on a balance of probabilities?. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that: “ In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16778/eng@2024-09-17 9

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to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 59. Similarly, Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that; “ The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..” 60. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that: “ In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 61. I have done exhaustive scrutiny of the evidence on record and I have been able to identify a few things which have captured my attention and which will guide me in determination of this last issue. 62. PW1 who was the police officer at Thika police station to whom the theft was reported testified that the theft was on 4/2/2026 at night before mid-night. The report was made by the Respondent’s driver one Jacob Kilonzo who was the only witness. He produced in court police abstract as an exhibit (PEX.3). In cross examination he stated that he had established the vehicle had been hired from Athi River to Thika with 5 occupants and when it parked. The insurance was commencing on 24/2/2015 and not as stated, it was backdated to 2/12/2015. That he contacted the vehicle seller who confirmed the vehicle had a tracking device installed and that the Respondent called them to assist in tracking the vehicle on 23/12/2015. 63. I note that PW1 did not produce any witness statements he recorded in the course of his investigations on the theft, not by the Respondent or even the driver who was the only witness. He admitted that the insurance policy was commencing on 24/2/2015 and not as stated, it was backdated to 2/12/2015. He also confirmed that the Respondent called the tracking company on 23/12/2025 asking them to assist in tracking the vehicle. 64. Of much concern to me, is the police abstract PEX.3 which shows that the theft was reported at Industrial area police station and not Thika Police Station as stated by PW1 and the Respondent PW2 in his witness statement. Industrial Area Police Station did not feature anywhere in the proceedings. The said police abstract does not bear the signature of the officer in charge Industrial area police station or its official stamp. 65. What appears to have happened about the reporting of the alleged theft in this matter is beyond any miracle to have been performed even by Jesus Christ. It is impossible for the same theft to have been reported at two different police stations by the same person and bear the same OB number. 66. It is my view, the Police officer ought to have availed to the trial court an abstract copy of the OB report entry pages from Thika Police Station and Industrial Area police station on the report to enable the https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16778/eng@2024-09-17 10

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court assess the true entrances for that particular day at the two police stations. The police abstract alone would not have been sufficient and adequate proof of the report in the circumstances of the case. I am left to wonder why the trial court overlooked such a significant glaring error. 67. The police officer did not endeavour to tender in evidence any report of his investigations or attempt to clarify why the police abstract shows that the theft was reported at Industrial Area Police station whereas he maintained that the report was made to him at Thika Police Station. 68. Consequently, the circumstances are such that the police officer was either passively or actively involved in the alleged theft mischief. This is such kind of a case that calls for thorough investigations by the Insurance Regulatory Authority to unravel some of the mischiefs in issuance of fake police abstracts especially in insurance related claims. 69. The Respondent PW2, although he alleges to be the legal and registered owner of motor vehicle registration No. KCK 452F, he did not produce any document to prove the alleged ownership. The evidence on record show that he obtained the vehicle on hire purchase with Kushi Company Ltd and there was also no proof that he had settled the purchase price and the vehicle transferred into his name. 70. He stated that the insurance cover was written in English and he did not understand it well. That he was not given any document by the Appellant. He agreed that the driver ought to have been his key witness but he didn’t know where he was as he had escaped. From the evidence of the Respondent there was no insurance policy number that he stated in his pleadings or testimony in court. 71. The Respondent did not explain any efforts he made to secure the attendance of the driver who was his key witness in the case. Why would the driver escape and again why would the Respondent call the Tracking company to assist in tracking the vehicle on 23/12/2015 almost twenty (20) days from the date of the incident. This too was not explained by the Respondent and I am left to believe the Appellant’s contention that there was non-disclosure on the part of the Respondent on the theft. 72. I would add that the learned trial magistrate did not appreciate that, for the Respondent to claim a sum insured under the policy of insurance he ought to have specifically pleaded the actual sum insured and not to expect the court to pluck a figure from the air and assume it to be the insured sum. 73. The Respondent did not also specifically plead the value of the subject vehicle whether by the hire purchase agreement or by the insurance policy showing the extent of the sum insured by the policy. The Respondent’s Plaint fails to state the exact Insurance Policy contract his claim is based on. The Respondent only produced three copies of insurance stickers, two of which were allegedly by the Appellant and one by Xplico insurance Company. 74. The Respondent had a right to demand to have the insurance cover which was written in English and he did not understand well explained to him. He also had a right to demand for a copy of the same. The Respondent did not demonstrate that he made any of the above demands. In the case of Resolution Insurance Co Ltd v Omondi (Civil Appeal 133 of 2018) [2023] KEHC 2454 (KLR) (20 March 2023) (Judgment), the court held:“ There is therefore the expectation that the insurer will ask material questions necessary to enable it reach an informed decision on whether or not to offer insurance. It is also expected that the insured will honestly answer said questions. Given that no such questions were asked in the application form, the Plaintiff had no opportunity to reveal her past medical history and thus cannot be said to have deliberately withheld that information.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16778/eng@2024-09-17 11

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75. A party is bound by their pleadings. See Galaxy Paints Company vs Falcon Guards Limited(2000) EA885 citing Gandy v. Caspair [1956] EACA 139 where it was held that unless the pleadings are amended, parties must be confined to their pleadings. Otherwise, to decide against a party on matters which do not come within the issues arising from the dispute as pleaded clearly amounts to an error on the face of the record. 76. On the foregoing analysis, this court finds that the learned magistrate erred in law and in fact in finding that the Respondent had proved his claim on a balance of probabilities and thus declaring that the Respondent is entitled to be indemnified by the Áppellant for the total sum insured under the policy of insurance which sum was neither pleaded nor proved. 77. Accordingly, the judgment of the trial court is therefore set aside in its entirety and in lieu therefore, an order is issued dismissing the entire Respondent’s claim with costs. 78. The Appeal herein succeeds with costs to the Appellant. DATED, SIGNED & DELIVERED VIRTUALLY at MACHAKOS this 17TH day of SEPTEMBER 2024 NOEL I. ADAGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16778/eng@2024-09-17 12

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