[2025] KEHC 3163 (KLR)

Apollo and Pan-Africa Insurance Limited (APA) v Rovin Investments Ltd (Civil Appeal E394 of 2023) [2025] KEHC 3163 (KLR) (Civ) (27 February 2025) (Judgment)

Neutral citation: [2025] KEHC 3163 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E394 of 2023

TW Ouya, J

February 27, 2025

Between

Apollo and Pan-Africa Insurance Limited (Apa)

Appellant

and

Rovin Investments Ltd

Respondent

(Being an appeal against the judgement and decree of the Hon. L. Kivuti (PM) delivered on 21st June, 2022 in Nairobi Milimani CMCC No. 879 of 2017)

Judgment

1. This appeal emanates from the judgment delivered on 21. 06. 2022 by the lower Court in Nairobi Milimani CMCC No. 879 OF 2017 (hereinafter the lower Court suit). The lower Court suit was instituted via a plaint by Rovin Investments Ltd, the plaintiff in the lower court (hereinafter the Respondent), as against Apollo and Pan-Africa Insurance Ltd, the defendant in the lower court (hereinafter the Appellant) in respect of a cause of action that arose on 25. 06. 2016

2. It was averred that at all material times, the Respondent was the owner of Motor Vehicle Registration Number KBQ 807C Scania Prime Mover (hereinafter the Suit Motor Vehicle) which was insured with the Appellant under Policy Number P/AL816/0001458. It was further averred that on 25. 06. 2016, the suit motor vehicle was involved in a road traffic accident along Kericho-Nakuru Highway occasioning it extensive damages a consequence of which the suit motor vehicle was written off and confirmed by the Appellant’s assessment. That the accident was reported at Kericho Police Station and the Respondent duly notified the Appellant whereafter a claim arose and was lodged with the Appellant however on 19. 10. 2016 the Appellant purported to repudiate the claim which repudiation was unlawful, malicious, baseless since the suit motor vehicle was in sound condition and fit to operate.

3. It was further averred that the Appellant’s refusal to indemnify the Respondent amounted to breach of contract pursuant to the policy of insurance thereby occasioning the Respondent a monthly income loss of Kshs. 400,000/- from August 2016 meanwhile Enigma Assessors who did the assessment of the suit motor vehicle estimated the repairs to the tune of Kshs. 3,053,120/-. That despite demands and intention to sue, the Appellant failed, refused and or neglected to indemnify the Respondent as provided for under the Insurance Policy.

4. The Appellant filed a statement of defence admitting to specific facets of the claim however denied the key averments in the plaint and or liability. The Appellant went on to aver that subject accident occurred due to brake failure, to wit, the Respondent was aware of the defect but failed to repair the same. That by continuing to use the suit motor vehicle despite the defect and risks it portends, the Respondent acted in breach of policy conditions thus entitling the Appellant to avoid the policy and repudiate any claims arising from the subject accident.

5. The suit proceeded to full hearing, during which both parties called evidence in support of the averments of their pleadings. In its judgment, the trial Court found in favour of the Respondent by awarding special damages to the tune of Kshs. 3,000,000/- less excess of Kshs. 150,000/- thus making a total of Kshs. 2,850,000/-, costs and interest from the date filing suit.

The Appeal 6. Aggrieved with the outcome, the Appellant preferred the instant appeal challenging the finding by the lower Court premised on the following grounds in its amended memorandum of appeal as itemized hereunder: -“1. The learned trial Magistrate erred in fact and in law by failing to appreciate that the Respondent had not established that the Appellant as described is a body corporate legal person.2. The learned trial Magistrate erred in both fact and in law by failing to appreciate that the Appellant was not an Insurance Company neither did it have any policy of insurance with the Appellant.3. The learned trial Magistrate erred on fact and in law by ignoring the clear evidence before her that the contract of insurance in issue was with APA Insurance Limited which was not a party to the suit.4. The learned Magistrate erred in fact and in law in not appreciating that the Respondent had failed to establish existence of an insurable interest in respect of the subject policy of insurance.5. The learned Magistrate erred in fact and in law by failing to appreciate that the Respondent had breached policy conditions which disentitled it to any compensation from the actual insurer under the policy.6. The learned trial Magistrate erred in fact and in law by ignoring the Appellant’s written submissions and the authorities cited therein that were relevant to the issues before him.7. The learned trial Magistrate erred in fact and in law by failing to appreciate that salvage value was deductible from any compensation recoverable from the actual insurer under the policy.

7. In light of aforecaptioned itemized grounds of appeal, the Appellant seeks before this Court, orders to the effect that: -“a)The trial Magistrates judgment be set aside as a whole and substituted with an order dismissing the Respondent’s claim.b)Costs of both the appeal and the lower Court proceedings.

Submissions 8. Directions were taken on disposal of the appeal by way of written submissions, of which the Court has duly considered.

Disposition 9. At this juncture, it would be apt to observe that the instant appeal was disposed of as part of the Judiciary Rapid Result Initiative (RRI) matters. That said, the original lower Court record did not form part of the record before this Court. Nevertheless, the Court has duly considered the Record of Appeal alongside the submissions.

10. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate Court in Selle v Associated Motor Boat Co. [1968] EA 123. Further, it is trite that an appellate Court will not ordinarily interfere with a finding of fact made by a trial Court unless such finding was based on no evidence, or it is demonstrated that the Court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] 1 KAR 278. That said, a revisit of the memorandum of appeal and submissions by the respective parties before this Court it is evident that the appeal turns on the singular issue whether the Respondent was entitled to indemnification on according of the contract or policy of insurance as between the parties.

11. Pertinent to the determination of issues before this Court are the pleadings, which formed the basis of the parties’ respective cases before the trial Court. See;- Court of Appeal decision in Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91. This Court had earlier in its judgment outlined the gist of the respective parties’ pleadings, as such it serves no purpose restating the same at this juncture. Further, having identified what the disputation before the trial Court twirled on, the key query for determination is whether the trial Court’s findings on the issues falling for determination before it were well founded.

12. To contextualize the latter, it would be apposite to quote in extenso the relevant facets of the impugned judgment. The trial court after restating the evidence tendered before it addressed itself on liability as follows; -….“The question of suing the wrong partyThe insurance contract document presented by the Claimant reads APA Insurance. The Plaintiff sued Apollo & Pan-Africa Insurance Limited (APA). The explanation given by the Plaintiff is that there was a merger between the two insurance firms and therefore the nexus of the two entities was sufficiently explained. I do not find this as a ground of avoiding the claim.…..On whether the insurance company ought to pay the claimIt is my finding that there was in existence of a valid insurance policy there was a risk attachment by way of an accident that arose on 26th June 2016. The accident was documented and notified to the insurance company. Investigation and assessment were undertaken by the insurance company agents…..It is my finding that there was no any plausible reason why the insurance company failed to honor its part of the bargain in the claim.The subsequent excuse of failed braking system cannot be provided as sufficient reason to avoid the contract.Consequently, it is mu finding as follows:On the issue of the legal capacity to sue the defendant the case if APA Insurance Limited v Theodora Atieno [2012] eKLR as quoted by the plaintiff settles the legal relationship between Apollo Insurance Company and Pan Africa Insurance Company to form APA Insurance Limited this does not therefore form a basis for avoiding he contract.’I do also find that insured having performed its obligation under the contract. It is entitled under insurance law to render the insured sum.The question of deducting excess as expounded in the defendant submission and not denied by the plaintiff holds water. However, am not convinced to take out the salvage valued from the amount entitled to the Plaintiff.ConclusionThe plaint dated 6th February 2017 succeeds in terms of prayer (a) the consequential loss claimed in prayer (b) from the contract that item was not forceable and therefore this limb is refuted. I agree with the defendant in this respect.The final tally Kshs. 3,000,000 less excess payable Kshs. 150,000, total Kshs. 2,850,000Costs and interestThe interest in this respect is from date of filing suit being 6th February, 2017. ” (sic)

13. The applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. Whereas, it is well trodden that the same is on a balance of probabilities meaning that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. See Court of Appeal decision in Mumbi M'Nabea v David M. Wachira [2016] eKLR. Hence, the duty of proving the averments contained in the plaint lay squarely on the Respondent vice versa with respect to the averments contained in the Appellant’s statement of defence. In Karugi & Another v Kabiya & 3 Others [1987] KLR 347 the Court of Appeal stated that: -“The burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” (Emphasis added)

14. As a preliminary issue the Appellant has challenged the question as to whether the suit was against the wrong entity, specifically, whether the insurance contract was between the Respondent and APA Insurance or Apollo and Pan – Africa Insurance Co. Ltd. To my mind, this is an interesting challenge as presented before the trial Court and on appeal. By its submissions before this Court, the Appellant has argued that at all material times relevant to matter, the contract of insurance in respect of the suit motor vehicle was with APA Insurance whereas the Appellant as named is non-existent entity notwithstanding the merger that occurred between APA Insurance and Pan – Africa Insurance Co. Ltd as captured in the decision in APA Insurance Limited v Theodora Atieno [2012] eKLR, cited by the trial Court.

15. In retort the Respondent has argued that the pleadings before the trial Court were served upon the Appellant in the year 2017, to wit, the Appellant accepted service of the pleadings and participated in the suit since it was filed. If at all they were not aware of the existence of Apollo and Pan Africa Insurance Limited as they claim, then they would have declined to accept service of the pleadings and they would not have participated in the suit. That at the very least, the Appellant would have moved the court to have the suit against them struck out which they did not do. It was further submitted that the Appellant proceeded to defend the matter thereby accepting that the Appellant as titled in the matter, was indeed APA Insurance. Counsel called to aid the decision in APA Insurance Limited (supra) to maintain that there was merger between Apollo and Pan Africa Insurance Limited thereby leading to the abbreviation APA Insurance Co. Ltd therefore it was submitted that the argument is an attempt to avoid liability and it does not hold water.

16. Firstly, as rightly argued by the Respondent, the Appellant participated in the proceedings and filed a statement of defence knowing all too well that the Respondent’s contention was against APA Insurance Co. Ltd. Secondly, and rightly submitted, no attempt was made to disassociate the Appellant as described and APA Insurance Co Ltd, either by way of an application of striking out the Appellant from the suit or striking out the suit in any event. Thirdly, by the Appellant’s defence dated 24. 03. 2017 they merely deny description of the Appellant and not the non-existence of the Appellant, as non-entity.

17. Fourthly, by dint of the dicta in APA Insurance Limited (supra), the Respondent does not dispute the merger of the companies known as Apollo Insurance Company and Pan Africa General Insurance Limited however takes issue with the existence of a company known as Apollo and Pan Africa Insurance Limited (A.P.A). It is not in dispute that the merger of the latter companies led to the formation of the Insurance Company known as APA Insurance vide Gazette Notice No. 8126 of 2003. Further, it appears the alive to this set of fact the Appellant took up the defence of the Respondent’s suit meanwhile seems to approbate and reprobate the description of the Appellant. Had the Appellant opted to take a stance on non-existence of Appellant as described, as earlier stated, they ought to have moved the Court appropriately and failure to do so would give the impression of acquiescence’s towards defending the suit in light of the matter in controversy before the trial Court.

18. Fifthly, the issues surrounding the nexus between Apollo Insurance Company Limited and Pan Africa General Insurance Limited which morphed into APA Insurance Company as juxtaposed alongside Pan Africa Insurance Limited was laconically settled by the Court of appeal in Inchwara v APA Insurance Limited [2022] KECA 885 (KLR), to wit it was observed that, there exists a nexus between Apollo Insurance Company Limited, Pan Africa General Insurance Limited, Pan Africa Insurance Limited and eventually APA Insurance Company Ltd. That said, I wish not to digress on the same. Lastly, Order 1 Rule 9 of the Civil Procedure Rules (CPR) provides that “No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.” It thus follows that in totality of the above notwithstanding the description of the Appellant which equally encapsulates the words “APA”, the Appellant cannot now claim that the same is a different entity to the latter, to wit, the trial Court was not in error in arriving at the decision it did on the issue concerning whether the Appellant was sued as a wrong party.

19. Moving on the substance of the appeal, at the heart of the disputation is a contract of insurance. The Court of Appeal in Kenindia Assurance Co. Ltd v Monica Moraa [2016] eKLR describing the nature of an insurance contract cited with approval the decision of the Supreme Court of India in United India Insurance Company v Kantika Colour Lab and others Civil Appeal No. 6337 of 2001 where that court stated as follows:-“Contracts of Insurance are generally in the nature of contracts of indemnity. Except in the case of contracts of Life Insurance, personal accident and sickness or contracts of contingency insurance, all other contracts of insurance entitle the assured for the reimbursement of actual loss that is proved to have been suffered by him. The happening of the event against which insurance cover has been taken does not by itself entitle the assured to claim the amount stipulated in the policy. It is only upon proof of the actual loss, that the assured can claim reimbursement of the loss to the extent it is established, not exceeding the amount stipulated in the contract of Insurance which signifies the outer limit of the insurance company's liability. The amount mentioned in the policy does not signify that the insurance company guarantees payment of the said amount regardless of the actual loss suffered by the insured. The law on the subject in this country is no different from that prevalent in England; which has been summed up in Halsbury's Laws of England - 4th Edition” [Emphasis Added]

20. The same Court in Co-operative Insurance Company Ltd v David Wachira Wambugu [2010] eKLR stated that:“The learned judge was right in saying that a contract of insurance is one of good faith. As was said in Joel v Law Union & Crown Insurance Company (2) [1908] 2 K B at page 883] by Fletcher Moulton, L.J.: “The contract of life insurance is one of uberrimae fidei. The insurer is entitled to be put in possession of all material information possessed by the insured. This is authoritatively laid down in the clearest language by Lord Blackburn in Brownlee v Campbell 5 A C 925 at page 954:‘In policies of insurance, whether marine insurance or life insurance, there is an understanding that the contract is uberrimae fidei, that, if you know any circumstance at all that may influence the underwriter’s opinion as to the risk he is incurring, and consequently as to whether he will take it, you will state what you know. There is an obligation there to disclose what you know, and the concealment of a material circumstance known to you, whether you thought it material or not, avoids the policy.’”The learned authors of Bullen & Leake, Precedent of Pleadings, 14th Edition, Vol. 2 states at page 908:“Contracts of insurance are contracts of the utmost good faith. This gives rise to a legal obligation upon the insured, prior to the contract being made, to disclose to the insurer all material facts and circumstances known to the insured which affect the risk being run. Lord Mansfield’s words in Carter vs Boehm (1766) Burr. 1905 have stood the test of time:“Insurance is a contract of speculation. The special facts upon which the contingent chance is to be computed lie most commonly in the knowledge of the assured only; the underwriter trusts to his representation, and proceeds upon confidence that he does not keep back any circumstance in his knowledge to mislead the underwriter into a belief that the circumstance does not exist and to induce him to estimate the risqué as if it did not exist. …”

21. Before the trial Court, the gist of the Respondent’s case through PW1, PW2 and PW3 was that the suit motor vehicle was insured by the Appellant to the tune of Kshs. 3,000,0000/- and premiums on the same were duly settled however when the suit motor vehicle was involved in an accident, the Appellant declined to indemnify the Respondent. On cross examination, it came out that the registered name in the logbook in respect of the suit motor vehicle is in the name of a different company however the same had been insured by the Respondent. Further it was their evidence that the suit motor vehicle was in good condition.

22. On the part of the Appellant, the kernel of DW1 and DW2 evidence, was that the suit motor vehicle had braking problems whereas despite paying premiums the Respondent insurable interest was unclear given that the suit motor vehicle was registered in the name of another company. That the Respondent was aware of the braking defects in respect of the suit motor vehicle therefore it was in breach of the policy entitling the Appellant to repudiate any claims arising from the subject accident.

23. Evidently, from the material tendered before the trial Court and submissions before this Court, the appeal appears to revolves around whether the Respondent had proved an insurable interest over the suit motor vehicle and whether the Respondent was in breach of the policy of insurance. On the former the Appellant has argued that the suit motor vehicle was registered in the name of RIL Logistics Limited and no evidence was tendered by the Appellant explaining why the Respondent would purport to insure a motor vehicle belonging to a different entity. Therefore, the Respondent failed to demonstrate its insurable interest in respect of the suit motor vehicle that was affected by the accident. In response the Respondent argued that policy of insurance receipt adduced into evidence captured the Respondent as the insured of the suit motor vehicle with the same further being corroborated by receipts in respect of policy renewal, as adduced by the Appellant. The decision in Lion of Kenya Insurance Company Limited v Edwin Kibuba Kihonge [2018] eKLR was relied on in the latter regard.

24. Before addressing the forestated, it bears reminder that the Court did not have the benefit of the original record before the trial Court. Thus, it would be remiss if the Court were not to state that the certified copy of proceedings from the lower Court as attached to the record of appeal, was not satisfactory as to manner in which the evidence was recorded and exhibits identified by the trial Court. Nevertheless, the Court will attempt to make do with the proceedings attached therein. The accident involving the suit motor vehicle occurred on 25. 06. 2016. A perusal of the policy document, motor accident report form, police abstract and additional endorsement schedule thereof, captures the Respondent as being the insured and holder of policy No. P/AL816/0001458 issued in respect of motor vehicle KBQ 807C for the period running between 15. 07. 2015 and 14. 07. 2016. The Logbook, to wit, the argument of lack on an insurable interest is hinged on captures RIL Logistics Limited as the registered owner of the suit motor vehicle.

25. The Court of Appeal in UAP Insurance Company Limited v Maina & another [2024] KECA 392 (KLR) while addressing itself to the nature of an insurable interest observed that: -Since most contracts of insurance are contracts of indemnity, whereby the insurer agrees to compensate the assured for the loss that the latter may sustain through the happening of an event which is uncertain and upon which the insurer’s liability arises, it follows the assured is required to have an interest in the subject matter of the insurance, for otherwise he will incur no loss through the happening of the insured event. This insurable interest is discernable from the assured’s relationship with the subject matter of the insurance, and is explained in Chitty on Contracts, Volume Two -Specific Contracts 32nd Edition at paragraph 42-006 thus:“…“That relationship may have a particular nature or certain manifestations which render the assured’s interest insurable. For example, the assured may be prejudiced by the loss of or damage to the subject matter of the insurance (or may benefit from its preservation), because he has a legal or equitable right pertaining to the subject matter, or because he will thereby become subject to a liability by reason thereof or because he will thereby be deprived of an opportunity to earn income or a profit in respect of the subject matter. Quite apart from such considerations, it may be that the assured’s insurable interest arises out of commercial convenience. There are no fixed criteria which will determine the existence of an insurable interest. Each interest and each case must be analyzed on its own…”

26. The same Court in Kinyanjui v Kenya Orient Insurance Company & another [2022] KECA 1333 (KLR) cited with approval its decision in Ignatius Makau Mutisya v Reuben Musyoki Muli [2015] KECA 612 (KLR), concerning the rebuttable presumption of ownership on accord of a log book to find that a party having sold a motor vehicle, having earlier insured it, did not have an insurable interest thus entitling the insurer to repudiate the claim arising out to the vehicle in question.

27. Here, in light of the earlier noted documents being the policy document, motor accident report form, police abstract and additional endorsement schedule it is undisputed that the Respondent was captured therein as the insured notwithstanding the rebuttable presumption as to ownership as per the log book. As at issuance of the policy, ordinarily upon the Respondent submitting a proposal form, the latter was issued with an insurance cover in respect of the suit motor vehicle. The Appellant went ahead to issue the insurance cover to the Respondent in respect of the suit motor vehicle as the policy holder with an insurable interest over the suit motor vehicle. The Appellant’s own investigation report captures that the Respondent is in the business of transportation and owns a fleet of trucks. Further, the claim for indemnity was filed by the Respondent as insured and not by RIL Logistics Limited, whose ownership over the suit motor vehicle was rebuttable. In any event, the Appellant did not offer any evidence to the contrary that the Respondent did not have an insurable interest in the suit motor vehicle. The trial Court did not address itself to the question of the Respondent insurable interest however acknowledged that there was in existence a valid insurance policy whereas risk attached to the policy upon occurrence of the accident. The above find cannot be faulted whereas the Appellant’s contestation that the Respondent did not have an insurable interest of the suit motor vehicle cannot sustain in the circumstance.

28. As to whether the Respondent was in breach of the policy of insurance, the Appellant has summarily argued that pursuant to the investigative report and evidence of the Respondent’s mechanic (PW3), the accident in respect of the suit motor vehicle was occasioned by a pre-exiting defective braking system, to wit, the Respondent was in breach of the policy condition of maintaining the suit motor vehicle in efficient condition per Clause 3 of the Conditions and “Additional Exception” to Section 1 that expressly excluded deliberate loss or damage caused by anyone insured under the policy. In retort while calling to aid the decision in Cannon Assurance (Kenya) Limited v Mohansons Food Distributors Limited [2020] eKLR, Five Forty Aviation Limited v Erwan Lanoe [2019] eKLR, South Nyanza Sugar Co. Ltd v Leonard O. Arera [2020] eKLR and Ken Aluminium Products Limited v High-Tech Air Conditioning & Refrigeration Limited [2018] eKLR, the Respondent argued that under Section 1 of the Policy it was agreed between the parties that the Appellant would indemnify the Respondent against loss or damage to the Motor Vehicle by accidental collision or overturning or collision or overturning consequent upon mechanical breakdown or consequent upon wear and tear. That the accident having been caused by mechanical breakdown the same was clearly indemnifiable whereas the Appellant’s assertion that the vehicle was defective or grounded was not substantiated but based on hearsay evidence.

29. A review of the policy of insurance in respect of the suit motor vehicle – Commercial Vehicle Policy – Section 1 on Loss or Damage to Insured Motor Vehicle provided that; -The company will indemnify the insured against loss or damage to the motor vehicle and its accessories and spare parties whilst thereona)by accidental collision or overturning or collusion or overturning consequent upon mechanical breakdown or consequent upon wear and tear.b)…….c)……..

30. Condition 3 which the Appellant has relied on in respect of repudiation of the Respondent’s claim provided that: -“The insured shall take all reasonable steps to safeguard the motor vehicle from loss or damage and to maintain the motor vehicle in efficient condition and the company shall have at all times free and full access to examine the motor vehicle or any part thereof or any driver or employee of the insured……..…….”

31. By the investigation report prepared at the behest of the Appellant, which later informed the reputation letter, the conclusions informing the latter appeared to be that the suit motor vehicle had stayed grounded for a period of time due to brake failure problems whereas the Respondent did not demonstrate any attempts to have the suit motor vehicle’s mechanical problems, specifically the brake system, fixed by a mechanic with the right qualifications, experience and expertise. Consequently, the repudiation letter dated 19. 10. 2016 was premised on breach of duty of care and utmost good faith principles.

32. Firstly, this Court must remind itself that the disputation between the parties was founded on contract, to wit, this Court’s role in respect of the same was concisely set out in the of-cited decision in National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR. Secondly, the circumstance surrounding the accident are not in contention whereas Section 1(a) of the policy as captured above was express as to the Appellant’s obligation to indemnify the Respondent in the event of an accident on ….collusion or overturning consequent upon mechanical breakdown. Thirdly, it is this Court reasoned deduction that (PW3)’s evidence negated the Appellant’s reliance on Condition 3, as it can be construed therefrom that attempts were made by the Respondent to safeguard the motor vehicle from loss or damage and to maintain the motor vehicle in efficient condition, having employed a mechanic to trouble shoot mechanical problems. By acting upon the brake issue, the Respondent reasonably mitigated its end of the bargain, to wit, the Appellant cannot now call out the Respondent for being in breach of its duty of care. In any event, breach of a duty of care is not an insurable principle, of which, the Appellant could conclusively premise its repudiatory ground on.

33. Thirdly, taking due guidance from the dicta from the Court of Appeal in Co-operative Insurance Company (supra), a plea in respect to breach of utmost good faith appears to be applicable where the insured misleads or conceals pertinent information relevant to the insurable interest but nevertheless induces the insurer to contract. Here, it is not in issue that as at the time of issuing Policy P/AL816/0001458 in respect of motor vehicle KBQ 807C, the latter was propone and or exhibiting braking issues. This was not information the Respondent misled and or concealed from the Appellant to justify the plea of breach uberrimae fidei on the part of the Respondent. Ordinarily, prior to issuance of a policy and at the proposal stage the insurer ascertains the status of the insurable interest, here it would entail the mechanical condition of the suit motor vehicle. Regardless of the latter, the Respondent had taken reasonable steps to mitigate the braking failure during the currency of the policy, despite the Appellant assailing (PW3)’s qualification. Whereas, by reading of Section 1 of the Policy of Insurance as juxtaposed alongside Condition 3, the Respondent was entitled to indemnification for damages or occasioned loss to the suit motor vehicle. To the foregoing end, the trial Court’s finding on whether the Appellant ought to pay the claim cannot be faulted.

34. As to the award in respect of salvage, it’s not in dispute that the suit motor vehicle was considered a constructive total loss meaning it was uneconomical on the part of the Appellant to repair the vehicle, if it did opt so. Notwithstanding, the finding on constructive loss, there would still be salvageable parts capable of sale hence the quantification of the salvage amount. Given the constructive total loss nature of the suit motor vehicle, the Respondent would ideally be entitled to indemnification of the sum insured. And if in possession of the salvage, less the salvage amount and excess, if no cover is taken on the excess.

35. The Appellant assailed the trial Court’s award by arguing that the amount of Kshs. 400,000/- ought to have been factored in the final award as it was not proven that the Appellant was still in custody of the salvage. Meanwhile, if the Respondent was in possession of the same, it could dispose of it and retain the amount thus tantamount to unjust enrichment. The Respondent submitted that from the evidence of (PW1), the vehicle was still with the Appellant’s garage and release of the same had not been pursued therefore, it is not correct that the salvage is in the custody of the Respondent.

36. A perfunctory perusal of the Assessment report from Enigma Assessors adduced by the Respondent captured that the suit motor vehicle was uneconomical to repair as the costs of repairs exceeded the insured value. The salvage value was noted to fetch a total of Kshs. 400,000/-. As rightly submitted, as at 08. 09. 2021 when (PW1) testified, it was his evidence that the vehicle was still at the Appellant’s garage and pursuit towards release of the same had not been undertake. (DW2), legal officer with the Appellant. in her evidence did not shed light as to whom was in possession of the salvage. Earlier, as at 19. 10. 2016, vide the Appellant repudiation letter to the Respondent, the undersigned to the said letter, in conclusion, expressly stated that “…….Kindly request the insured to collect the vehicle at the garage and we shall not be held responsible for accrued storage charges…….”. Consequently, the totality of the above would reasonably lead one to conclude that the Respondent was not and or is not in possession of the salvage as contended by the Appellant. Consequently, the trial Court’s failure to deduct the salvage value of the suit motor vehicle from its final award cannot be faulted.

37. Penultimately, the Appellant’s plea that the trial Court failed to consider its submissions equally seems moot as the trial Court in the body of the judgment specifically captures that is considered the submissions by the respective parties meanwhile having reviewed the trial Court’s analysis of the issues it equally appears that the learned Magistrate considered the submissions before him. The deduction of excess thereof was not challenged on appeal therefore the Court will not disturb the same.

38. In conclusion, appeal lacks merit and is consequently dismissed with costs to the respondent.

Determinationi. This Appeal is hereby dismissed with costs to the Respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 27TH DAY OF FEBRUARY, 2025HON. T. W. OuyaJUDGEFor Appellant…Ms. Wahome HB for MegeFor Respondent Ms. NjiruCourt Assistant :..Martin