[2018] KEHC 6199 (KLR)
The court found that the central issue was the correct valuation of the stolen motor vehicle at the time of loss. Both parties presented conflicting assessment reports, with a difference of Kshs. 70,000/=. The court held that compensation should be based on the value at the time of loss, not the insured sum, and in...
Source-derived case information.
- Citation
- [2018] KEHC 6199 (KLR)
- Parties
- Appellant: Gateway Insurance Company Limited; Respondent: Japheth Aritho Kinyua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 29 of 2012
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal partially allowed.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Insurance Claims, Valuation of Loss, Motor Vehicle Insurance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gateway Insurance Company Limited
Appellant
Japheth Aritho Kinyua
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant was liable to compensate the respondent for the stolen motor vehicle under the insurance policy.
- 2 What was the correct value of compensation payable for the stolen motor vehicle.
Ratio Decidendi
The court found that the central issue was the correct valuation of the stolen motor vehicle at the time of loss. Both parties presented conflicting assessment reports, with a difference of Kshs. 70,000/=. The court held that compensation should be based on the value at the time of loss, not the insured sum, and in balancing the interests of both parties, split the difference, awarding Kshs. 415,000/= to the respondent. The court also found that the appellant's refusal to meet its policy obligation necessitated the suit, and thus the appellant was liable for costs and interest.
Court Disposition
Appeal partially allowed.
Orders
- The respondent is awarded Kshs. 415,000/= as compensation for the lost motor vehicle.
- The appellant shall pay the costs of the suit and interest at court rates.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 29 OF 2012
GATEWAY INSURANCE COMPANY LIMITED................APPELLANT
VERSUS
JAPHETH ARITHO KINYUA.................RESPONDENT/APPLICANT
JUDGMENT
The appellant had insured a motor vehicle owned by respondent herein. That motor vehicle was stolen. The respondent lodged a claim which the appellant declined followed by the suit in the lower court. There was no dispute that the appellant was the insurer of the motor vehicle. The motor vehicle, from the evidence, was said to have been purchased at Kshs. 520,000/=. The insurance cover was Kshs. 500,000/=.
Two assessment reports were presented by the parties. The appellant presented an assessment report indicating the pre accident value of the stolen motor vehicle to be Kshs. 380,000/= while the respondent submitted a report showing the value of Kshs. 450,000/=.
It is my duty to evaluate the evidence presented before the lower court to arrive at independent conclusions. This I have done. I have also looked at the submissions of both parties and related the same to the Memorandum of Appeal. I agree with the submission that in the circumstances of such cases, it is not the insured sum that is payable but the value of the motor vehicle at the time of the loss. See - Jiwaji and Others vs. Jiwaji and Another (1968) EA 547.
The submissions advanced by both parties and related to the memorandum of appeal appear to address the issues which ought to have been placed before the trial magistrate. This is not the forum for such an approach.
I believe the end result of this appeal depends on the contested valuations by either party. The difference between the parties is Kshs. 70,000/=. In a delicate balance of the interests of the parties, I shall split this figure by half such that the respondent is entitled to Kshs. 415,000/= as compensation for his lost motor vehicle. To that extent only the appeal succeeds.
This suit would not have proved necessary had the appellant agreed to meet its obligation under the policy. In that regard therefore the appellant must pay the costs of the suit and interest at court rates.
Dated, signed and delivered at Nairobi this 29th day of May, 2018.
A. MBOGHOLI MSAGHA
JUDGE