Britam General Insurance Company (Kenya) Ltd v Malezi Mobile Ventures Ltd (Civil Appeal E008 of 2025) [2026] KEHC 13325 (KLR) (30 July 2026) (Judgment)

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAMIRA** **(CHERERE-J)** **HCCA E008 OF 2025** **BETWEEN** **BRITAM GENERAL INSURANCE CO. (KENYA) LTD.......APPELLANT** **AND** **MALEZI MOBILE VENTURES LTD....................................RESPONDENT** **(Being an appeal from the Judgment and Decree Nyamira MCCC** **E159 of 2023 by Hon. B. Okong'o (RM) on 21st November 2024)** **JUDGMENT** 1. By a Plaint dated 15th June 2023, the Plaintiff, now the Appellant, instituted the suit seeking a declaration that it was not liable to indemnify the Defendant under Policy No. 564/800/1/002386/2021/01 issued in respect of motor vehicle registration number KCX 218U. The Plaintiff pleaded that the Defendant had breached the terms of the insurance policy by failing to disclose material facts, failing to maintain the insured motor vehicle in a roadworthy condition and failing to comply with the policy conditions relating to notification of the accident and the ensuing proceedings. It therefore sought a declaration that it was under no obligation to satisfy claims arising under the policy. 2. By a Statement of Defence dated 04th August 2023, the Defendant denied breaching the insurance policy and maintained that a valid and enforceable contract of insurance existed between the parties. It contended that the Plaintiff had accepted premiums and was consequently bound to indemnify it in accordance with the terms of the policy. The Defendant further denied that the motor vehicle was unroadworthy prior to the accident and asserted that no breach had been proved to entitle the Plaintiff to avoid liability. 3. Upon considering the evidence and the parties' respective submissions, the learned trial magistrate identified the central question as whether the Plaintiff had established any lawful basis for avoiding liability under the insurance policy. In a judgment delivered on 21st November 2024, the trial court found that the existence of a valid contract of insurance between the parties was not disputed. It held that the Certificate of Insurance produced by the Defendant confirmed that the Plaintiff had issued a comprehensive insurance policy in respect of motor vehicle registration number KCX 218U and had undertaken to indemnify the Defendant against liabilities covered under the policy. 4. The trial court further found that the burden of proving breach of the insurance policy rested upon the Plaintiff. Although the Plaintiff relied on the Assessment Report dated 11th February 2024 to contend that the accident was occasioned by mechanical defects arising from poor maintenance of the motor vehicle, the court found that the report was prepared after the accident and did not conclusively establish the mechanical condition of the vehicle immediately before the accident occurred. 5. In reaching that conclusion, the trial court placed considerable reliance on the Certificate of Examination and Test of Motor Vehicle dated 13th January 2022, which indicated that the vehicle had no recorded mechanical defects before the accident. The court also observed that during cross-examination the Plaintiff's witness conceded that he had not inspected the vehicle before the accident and was therefore unable to authoritatively testify as to its pre-accident condition. Consequently, the court held that the allegation that the accident resulted from brake failure occasioned by poor maintenance remained unproved. 6. The learned magistrate was equally unpersuaded by the Plaintiff's contention that it was discharged from liability by reason of the Defendant's alleged failure to notify it of the accident and the proceedings arising therefrom. The court found that the Plaintiff had failed to establish any breach sufficient to entitle it to avoid its contractual and statutory obligations under the insurance policy. Having found that the Plaintiff had not proved its case on a balance of probabilities, the trial court dismissed the suit with costs to the Defendant. 7. Dissatisfied with that decision, the Plaintiff lodged the Memorandum of Appeal dated 11th December 2024, raising four grounds of appeal, namely that the learned trial magistrate erred in fact and law by finding that the Appellant was legally obligated to indemnify the Respondent under Policy No. 564/800/1/002386/2021/01;failing to find that the Respondent had breached the terms and conditions of the insurance policy; failing to consider the Appellant's written submissions; and failing to apply the applicable law and binding judicial precedents to the evidence before the court. 8. In written submissions dated 30th March 2025, the Appellant contended that the learned trial magistrate erred in finding that it remained liable to indemnify the Respondent under Policy No. 564/800/1/002386/2021/01. It submitted that the Respondent fundamentally breached the policy by failing to maintain the insured motor vehicle in a roadworthy condition and by failing to notify the Appellant of the accident and the proceedings arising therefrom as required by the policy and section 10(2)(a) of the Insurance (Motor Vehicle Third Party Risks) Act. It therefore urged the Court to allow the appeal, set aside the judgment of the subordinate court and dismiss the Respondent's suit. 9. By written submission dated 09th June, 2026, the Respondent opposed the appeal, submitting that the learned trial magistrate properly evaluated the evidence and correctly concluded that the Appellant had failed to prove any breach of the insurance policy. It maintained that the Certificate of Examination and Test of Motor Vehicle established that the vehicle was mechanically roadworthy before the accident and that the assessor's report, having been prepared after the accident, could not establish the vehicle's pre-accident condition. It further submitted that there was no basis upon which the Appellant could avoid its contractual or statutory obligation to indemnify the Respondent and urged the Court to dismiss the appeal with costs. 10. This being a first appeal, this Court is obliged to reconsider and re-evaluate the entire evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. That duty was authoritatively stated in **Selle v Associated Motor Boat Co. Ltd [1968] EA 123.** 11. Having considered the Record of Appeal, the judgment of the trial court, the grounds of appeal and the rival submissions, the issues falling for determination are: 12. **Whether the Appellant proved that the Respondent breached the terms and conditions of Policy No. 564/800/1/002386/2021/01.** 13. **Whether the alleged failure by the Respondent to notify the Appellant of the accident and the ensuing proceedings entitled the Appellant to avoid liability.** 14. **Whether the learned trial magistrate failed to consider the evidence, the submissions and the applicable law.** 15. **Whether the appeal is merited.** 16. The Appellant sought a declaration relieving it from liability under the insurance policy. The burden therefore rested upon it to establish, on a balance of probabilities, the facts constituting the alleged breach of the policy. Its case principally rested on the Assessment Report dated 11th February 2024, which attributed the accident to brake failure occasioned by worn mechanical components, and on the evidence of its assessor who maintained that the Respondent had failed to keep the insured motor vehicle in a roadworthy condition. 17. Upon independently evaluating the evidence, I agree with the learned trial magistrate that the assessment report did not conclusively establish the mechanical condition of the vehicle before the accident. The inspection was undertaken after the accident had already occurred and therefore merely described the condition of the vehicle after the collision. During cross-examination, the assessor conceded that he had not inspected the vehicle before the accident and was therefore unable to state, from personal knowledge, that the alleged defects existed before the collision. 18. In contrast, the Respondent produced the Certificate of Examination and Test of Motor Vehicle dated 13th January 2022 showing that the vehicle had undergone inspection and no mechanical defects had been recorded. That document constituted contemporaneous evidence of the vehicle's condition before the accident and was therefore entitled to greater evidential weight than an opinion formed after the occurrence of the accident. I consequently find no basis for interfering with the learned trial magistrate's preference for that evidence. 19. The Appellant also alleged that the Respondent failed to disclose material facts and thereby breached the doctrine of uberrimae fidei. While insurance contracts are indeed founded upon the principle of utmost good faith, as recognised in [**Madison Insurance Company Ltd v Solomon Kinara t/a Kisii Physiotherapy Clinic [2004] KECA 162 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2004/162/eng%402004-07-09), the existence of that principle does not dispense with the insurer's obligation to prove the alleged breach. The Appellant was still required to establish that the Respondent had failed to comply with the policy conditions relied upon. Having reconsidered the entire record, I am not persuaded that such breach was proved. 20. I therefore find that the learned trial magistrate correctly concluded that the Appellant failed to establish that the Respondent had breached the insurance policy either by failing to maintain the vehicle in a roadworthy condition or by withholding material information. The first ground of appeal consequently fails. 21. The Appellant further contended that the Respondent failed to notify it of the accident and the proceedings arising therefrom as contemplated by section 10(2)(a) of the Insurance (Motor Vehicle Third Party Risks) Act. That contention equally required evidential proof. 22. Although the Appellant asserted that it never received the requisite notice, the evidence placed before the trial court did not sufficiently establish non-compliance with either the statutory or contractual notification requirements. The Appellant relied principally on its own assertion without placing before the court evidence capable of demonstrating that the statutory exception had arisen. 23. The decision in [**Peter N. Kinyari v William O. Matendechere & another [2019] KEHC 5294 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/5294/eng%402019-07-25)affirms that compliance with section 10(2)(a) is mandatory where an insurer seeks to rely upon the statutory defence. However, that decision does not relieve the insurer of the burden of proving the factual basis for invoking the exception. Since the Appellant failed to establish that factual foundation, the authority does not advance its case. 24. I therefore find no error in the learned trial magistrate's conclusion that the Appellant failed to prove that the Respondent's alleged failure to notify it of the accident and the proceedings entitled it to avoid liability under the policy. The second ground of appeal likewise fails. 25. The remaining complaint is that the learned trial magistrate failed to consider the Appellant's submissions and the applicable law. 26. Having carefully examined the impugned judgment, I do not agree. The judgment identifies the issues for determination, analyses the evidence adduced by both parties and explains why the Respondent's evidence was preferred. The fact that the trial court reached a conclusion adverse to the Appellant does not mean that its submissions or authorities were ignored. 27. A trial court is under no obligation to reproduce every submission or discuss every authority cited by counsel. Its duty is to determine the issues arising from the pleadings and evidence and to provide reasons for its conclusions. In my view, the learned trial magistrate discharged that obligation and properly directed himself on both the facts and the applicable law. 28. Having re-evaluated the entire record, I am satisfied that the findings of the trial court were supported by the evidence on record and were founded upon the correct legal principles. The Appellant failed to prove any material breach of the insurance policy capable of discharging it from its contractual or statutory obligation to indemnify the Respondent. 29. Consequently, none of the grounds of appeal has merit. I find no basis upon which this Court can interfere with the judgment delivered on 21st November 2024. 30. Consequently, the appeal is hereby dismissed in its entirety.The Respondent shall have the costs of the appeal. **DELIVERED AT NYAMIRA THIS 30th DAY OF July 2026**  **WAMAE.T. W. CHERERE** **JUDGE** **Appearances** **Court Assistant - Hilda** **For Appellant - Ms. Anyango for AKO Advocates LLP** **For Respondents - Mr. Omotto for Omotto & Co. Advocates**