https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1047

ICEA Lion General Insurance Company Ltd v Muthiga t/a Kimathi Booksellers (Civil Appeal E594 of 2024) [2026] KECA 1047 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KECA 1047 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E594 of 2024 PO Kiage, J Mohammed & P Nyamweya, JJA May 29, 2026 Between ICEA Lion General Insurance Company Limited Appellant and Lawrence Muthiga t/a Kimathi Booksellers Respondent (An appeal from the Judgment of the High Court of Kenya at Nairobi (J.W.W. Mong’are, J.) dated 3rd July 2023 in HCCC No. 75 of 2014 Civil Case 75 of 2014 ) Judgment 1.On or about 3rd September 2010, the respondent took out a comprehensive insurance cover with the appellant for the sum of Ksh.361,660. The cover was for motor vehicle registration no. KBK 564U Volvo Tipper, valued at Ksh.4,500,000 for the period between the 3rd September 2010 to 2nd September 2011. The insurance policy was no. 0XXXXXXXXXXXXX10 for Motor general cartage. The respondent had approached Diamond Trust Bank (the Bank) who partially financed him to purchase the motor vehicle with Ksh.1,440,000. The respondent put the said vehicle into the business of transportation especially in ferrying of building stones and sand from places like Emali, Bisil, Kajiado, Kaputei Hill to Nairobi. The business continued well and the respondent was able to continue paying the loan to the bank until 13th March 2011, when the subject vehicle was involved in an accident at Bisil where the driver had gone to collect sand. The driver reported the accident at Bisil Police Patrol Base and subsequently a report was made to the Insurance Company and the Bank. The appellant instructed the respondent to tow the vehicle to the dealer of Volvo vehicles as it had been written off. 2.The respondent alleged that the appellant did not make good its claim until 18th June 2012, when it wrote a letter to the Bank offering the sum of Ksh.3,420,000. That sum was ostensibly offered on an ex-gratia basis in view of the good business relationship between the appellant and the bank. The respondent claimed that he was never informed about the said offer; he only learnt about it later after the appellant had wired the sum of Ksh.1,882,100 to his account, which money was utilised by the bank to offset the loan facility, leaving a balance of Ksh.2,617,900. In the result, the respondent sued the appellant vide a plaint amended on 25th February 2014, alleging that he had suffered loss and damage due the appellant’s unwillingness to compensate it. The loss was particularised as follows;a.The plaintiff [respondent] was earning an average of the sum of Ksh.25,000 which stopped on the 13th March 2011.b.The plaintiff [respondent] was servicing another car loan with the NIC Bank which they eventually settled through other sources as a result of the default payment caused by the damaged motor vehicle and a stop in the income generation thereto.c.The motor vehicle which would have been salvaged was sold through a publication in the daily nation newspaper by Kaplan & Stratton Advocates for Auto Sueco-Kenya Ltd under the heading ‘Disposal of Uncollected Goods’ due to non-payment of repair charges in the year 2016.d.After paying Ksh.1,882,100 to the respondent’s account in November 2012, the same was utilised by the bank to off-set the loan that the respondent was owing leaving a balance of Ksh.2,617,900, which has never been paid.e.The sum of Ksh.3,420,000 offered as ex-gratia has not been paid in full save for the Ksh.1,882,100 which settled the bank’s loan without the involvement of the respondent. 3.In the end the respondent prayed for judgment against the appellant for;a.Balance of Ksh.2,617,900b.Loss of business at a rate of Ksh.25,000x365x7 =63,875,000.c.Interest on both (a) and (b) since the date of filing suit.d.Costs of the suit.e.Any other relief this Honourable Court might deem fit to grant. 4.Vide a defence dated 25th April 2014, the appellant confirmed that the respondent had taken a comprehensive insurance cover with it for the subject motor vehicle. Further, Diamond Trust Bank had partially financed the respondent to purchase the vehicle. Contrary to the respondent’s claim, however, the appellant alleged that the motor vehicle had a mechanical breakdown and was abandoned along the river bed; that it rained heavily and the flood water found its way into the vehicle’s engine and other parts. The appellant claimed that the respondent did not cooperate with its investigators. It denied that the respondent incurred a cost of Ksh.210,000 to tow the said vehicle to the dealer of Volvo vehicles. The appellant averred that the insurance policy covered loss in the event of an accident and even though the respondent claimed the loss was caused by an accident, its investigators found that the loss was occasioned by mechanical breakdown. As such, the appellant asserted that it was well within its rights to repudiate liability as the loss disclosed was not covered by the policy. 5.It was pleaded that the appellant proposed to settle the claim at Ksh.3,420,000. The money that was wired to the respondent’s account was Ksh.1,882,100, net of the salvage value of Ksh.1,537,900. The appellant stated that thereafter the insurance cover was cancelled in the duly executed discharge voucher and therefore, according to them, the claim was settled. Moreover, the bulk of the claim related to loss of business, which aspect was excluded by the insurance policy under exceptions to section 1(i). The appellant added that standard form policies or contracts of insurance do not cover consequential loss unless parties specifically contract that such loss should be covered. In conclusion, it urged that the suit against it should be dismissed with costs. 6.The matter proceeded for trial before Mong’are, J. where the respondent called two witnesses to testify while the appellant called one witness. The respondent testified as PW1 and adopted his witness statement dated 7th February 2019, a bundle of documents of even date, and his further statement filed on 5th February 2020. In cross- examination, he claimed that he did not authorise the Diamond Trust Bank Agency to negotiate the insurance claim on his behalf. He also alleged that he was not notified about the sale of the salvage. The respondent defended his claim for loss of business contending that it was occasioned by the appellant’s delay in paying him. The second witness, Peter Muthiga Thiga (PW2) was the driver of the subject motor vehicle at the material time. He also adopted his written statement dated 7th February 2019. 7Samuel Kariuki Kangethe (DW1), from the appellant’s motor claims department, testified on its behalf. He adopted his written statement dated 10th December 2019, his bundle of documents of 29th March 2019 and a further bundle of documents dated 10th December 2019. In cross- examination he confirmed that the appellant and the respondent had entered into an insurance contract. He stated that the vehicle in issue was subject to a loan and so all payments were made through the bank. 8.At the end of the trial, the learned Judge rendered her decision on 3rd July 2023, in which she entered judgment for the respondent against the appellant as follows;a.Ksh.2,617,900 being the balance of the sum insured.b.Loss of business of Ksh.6,625,000 being 22 per month for 12 months at the rate of Ksh.25,000 per day.c.Interest in (a) and (b) from the date of filing suit.d.Cost of the suit to the plaintiff. 9.The appellant was aggrieved by the judgment of the High Court and filed this appeal, on nine (9) grounds, which it later collapsed into four (4) issues as follows;i.Whether the superior court erred in fact and in law by awarding the respondent an award of loss of business whereas the insurance contract between the parties ousted any claim for consequential losses.ii.Whether the superior court erred in law and in fact by disregarding the pre-accident valuation as the basis for compensation.iii.Whether the superior court erred in law and in fact by ignoring the provisions of clause 11 of the contract which provided that the insured would be responsible for the 1st 10% of the insured estimates in respect of each and every event by awarding the respondent the full insured amount.iv.Whether the superior court erred in fact by failing to appreciate the fate of the salvage which the respondent had failed to collect from the garage that was undertaking the repairs. 10.When the appeal came up for hearing, learned counsel Mr. Rono Kibet appeared for the appellant while Mr. Alvin Mukonyi appeared for the respondent. Counsel had filed their respective written submissions and case digests which they briefly highlighted. 11.On whether the learned Judge erred by awarding the respondent an award of loss of business when the insurance contract ousted any claim for consequential losses, Mr. Kibet referred us to page 36 of the record, where the contract, under exceptions to the insurance terms, excluded consequential losses. He contended that while the trial court rightly stated the scope of consequential losses, it failed to apply the principles in its impugned judgment. The learned Judge was castigated for ignoring the terms of the contract that excluded consequential losses and holding that the appellant was liable for the loss of business for delaying to settle the claim. Relying on Madison Insurance Company Limited Vs. Solomon Kinara T/a Kisii Physiotherapy CliniC [2004] eKLR, Nyutu Agrovet Limited Vs. Airtel Networks Kenya Ltd [2024] KECA 523 (KLR) and Corporate Insurance Company Vs. Loise Wanjiru Wachira [1996] KECA 70 (KLR), counsel submitted that contracts of insurance do not cover consequential loss unless the parties specifically contract that such loss would be covered. 12.As to whether the learned Judge erred by disregarding the pre- accident valuation as the basis for compensation, counsel faulted the learned Judge for failing to adequately consider the principle of restitution in relation to the pre-accident valuation of the motor vehicle. He urged that while the vehicle was valued at Ksh.4,500,000 at the time of purchase, the settlement offered based on the pre-accident value, less salvage, was in line with the principle of restitution, which aims at putting the insured in the same financial position that he was in before the loss and not when he purchased the motor vehicle. Counsel referred to the testimony of DW1 who testified on behalf of the appellant and stated that the vehicle had not been valued prior to the issuance of the insurance policy and as such, the appellant depended on the value given by the insured. 13.Mr. Kibet submitted that in such a scenario, the insurance company assessors would undertake a pre-accident valuation of the motor vehicle before compensation, which is in accord with insurance law of restitution. To underscore that argument, he cited the High Court decision of PERMUGA AUTO SPARES & ANOTHER Vs. MARGARET KORIR TAGI [2015] eKLR. It was contended that the respondent’s prayer for tabulation based on the insured value was misconceived, bearing in mind that the vehicle was depreciating in value between the time of purchase and the date of the accident; the vehicle was 8 months old at the time of the accident. To support this submission, reference was made to the High Court decision in MBUGU DAVID & ANOTHER Vs. MARGARET NDINDA WAMWENGA [2016] eKLR, where in a claim for a damaged motorcycle, the court was of the view that where the motorcycle was about eight months old at the time of the accident, there was need to provide for depreciation of the asset. It was submitted that the respondent did not challenge the assessor’s report that placed the pre-accident value of the vehicle at Ksh.3,800,000 and, therefore, the learned Judge was wrong to rely on the insured amount rather than the pre-accident valuation. Mr. Kibet urged us to find and hold that the proper compensation amount was to be based on Ksh.3,800,000 and not Ksh.4,500,000. 14.Next, counsel submitted that pursuant to clause 11 of the contract, the insured was responsible for the first 10% of the insured’s estimate of the vehicle value stated in the policy subject to a minimum of Ksh.50,000. Accordingly, while tabulating the amount payable to the respondent, the appellant took into account the 10% and lessened Ksh.380,000 as the 10% of the pre-accident valuation, in effect reducing the amount payable to Ksh.3,420,000. It was thus urged that the trial court erred in failing to take into consideration the fact that the respondent was responsible for the first 10% of the amount payable as compensation. 15.The learned Judge was faulted for failing to appreciate the fate of the salvage which the respondent had allegedly failed to collect from the garage which undertook repairs. Counsel submitted that the respondent was paid the adjusted amounts less the salvage amount which was valued at Ksh.1,537,900. He stated that some time in the year 2016, notices were placed in the newspapers by the garage requiring the respondent to collect his vehicle within a period of 30 days but he ignored the two notices and hence the salvage was subsequently sold. The learned Judge was faulted for failing to take into consideration that submission and proceeding to award the respondent the sum of Ksh.2,617,900, which included the salvage cost. In conclusion, Mr. Kibet reiterated that the appellant paid the respondent Ksh.1,882,100 after deducting the 10% excess as per clause 11 of the Insurance policy, and the salvage value. He urged that the calculation was fair and in accordance with the terms of the Insurance Policy. He implored us to allow the appeal, set aside the impugned judgment and dismiss the respondent’s suit. Counsel also prayed for costs of this appeal and of the proceedings before the High Court. 16.In opposition to the appeal, Mr. Mukonyi contended that the respondent had a legitimate expectation that the appellant would pay the total sum insured of Ksh.4,500,000 but that did not happen. He argued that owing to the delay in payment, the respondent suffered enormous losses in his business which was previously making Ksh.25,000 per day. Counsel defended the learned Judge’s award of loss of business arguing that while doing so the learned Judge considered the delay occasioned by the appellant in settling the claim as well as its action of deciding to settle in an ex gratia arrangement with the Bank without involving the respondent. Counsel cited section 203 of the Insurance Act, Chapter 487 of the Laws of Kenya which provides that where a claimant has submitted all the relevant documents with respect to a claim arising out of a policy, the Insurer should admit or deny liability; determine the amount due; establish the identity of the claimant, and pay within 90 days of the date of reporting. Mr. Mukonyi decried the appellant’s negotiation with the Bank for payment of Ksh.1,882,100 as ex-gratia, without the involvement of the respondent and in breach of the doctrine of privity of contract. To emphasize the essence of the doctrine of privity of contract, the decision in Dunlop Pneumonic Tyre Vs. Selfridge And Co. Ltd [1915] AC 847, as cited by this Court in Aineah Likuyani Njirah Vs. Agha Khan Healh Services [2013] eKLR was relied on. Further, reference was made to this Court’s decision in Savings & Loan (k) Limited Vs. Kanyenje Karangaita Gakombe & Another [2015] eKLR. 17.It was submitted that the general rule under common law for recovery of damages following breach of contract is elucidated in the case of Hadley Vs. Baxendale (1854) 9 Exch 341 to the effect that recoverable damages are those either arising naturally or directly from the breach of contract or those within the contemplation of the parties at the time of contracting. Concerning the argument that the learned Judge disregarded the pre-accident valuation as the basis for compensation, counsel maintained that the Insurance Contract stipulated that the insured amount was Ksh.4,500,000. He contended that insurance companies do an assessment before giving out an insurance cover and therefore the respondent could not be blamed for the appellant’s failure to value the vehicle. Mr. Mukonyi asserted that the appellant could not use a pre-accident assessment report that was done hurriedly, one year after the accident occurred, to escape liability over its contractual obligations. He urged that restoring the respondent to his former position, in accordance with the principle of restitution, requires that he be compensated the total value of the vehicle. To counsel therefore, the learned Judge was right in awarding damages based on the sum insured. 18.Concerning the proposition that the learned Judge ignored provisions of clause 11 of the contract, which provided that the insured would be responsible for 10% of the insured estimates in respect of each and every event, counsel accused the appellant of introducing new issues in the appeal. He urged that at no point in the pleadings did the appellant raise the issue and neither was it brought to the attention of the respondent. In counsel’s view, the issue was an afterthought intended to diminish the respondent’s claim. Regarding the fate of the salvage, counsel laid out the salvage procedure as stipulated under the Insurance Contract as follows;“In the event of the motor vehicle being declared a Total Loss the Company will indemnify the insured and be entitled to take possession of the salvage. In any case, the Insured shall not abandon any damaged motor vehicle to the company except at the company’s discretion and consent that the damaged motor vehicle may be surrendered as salvage prior to the settlement of the claim.” 19.It was submitted that the respondent was never informed of the letter dated 14th November 2012, found at page 200 of the record, by which the appellant informed the Bank that it had made an RTGS transfer of Ksh.1,882,100 to its account in full and final settlement of the claim, less Ksh.1,537,900 for the salvage. Moreover, he was never informed about collection of the salvage motor vehicle. In conclusion, counsel affirmed the award of Ksh.2,617,900, that was made by the learned Judge and beseeched us to dismiss the appeal with costs. 20.We inquired from Mr. Mukonyi whether the Insurance Act stipulates what happens where the Insurer does not settle the insurance claim within 90 days. In response, he acquiesced that the Act was silent in that respect. 21.In a brief reply to Mr. Mukonyi’s submissions, Mr. Kibet contended that the prayer for consequential losses was an attempt by the respondent to rewrite the contract since the contract was clear that it did not cover such losses. He urged that if there was a delay in settling the claim, as alleged, then the respondent ought to have filed a suit or reported to the Insurance Regulatory Authority upon which he would have been awarded interest. 22.As the first appellate court we have an obligation to re-consider and re-evaluate the evidence and come up with independent conclusions, see SElle -vs- Associated Motor Boat Co. [1968] EA 123 and Abok James Odera T/a A. J. Odera & Associates -vs- John Patrick Machira T/a Machira & Co. Advocates [2013] eKLR. 23.From the arguments made before us, the substantive issues that emerge for our consideration are twofold; whether the respondent was entitled to compensation for loss of business and what quantum of compensation the appellant was liable for. 24.The appellant contests the award granted to the respondent for loss of business arguing that the Insurance Contract between them ousted any claim for consequential losses. A review of the relevant section of the Contract, found at page 36 of the record, indeed exonerates the appellant from being liable for consequential losses. It stipulates as follows;“Exceptions to Section 1The Company shall not be liable to pay for-i.Consequential loss;ii.Depreciation wear and tear mechanical or electrical breakdown failures or breakages;iii.Damage caused by overloading or strain;iv.Damage caused by explosion of any boiler forming part or attached to or on the Motor Vehicle;v.Damage to tyres unless the Motor Vehicle is damages at the same time.” 25.The respondent however argues that in awarding him compensation for loss of business, the learned Judge took into account the delay occasioned by the appellant in settling the claim as well as its action of deciding to settle in an ex gratia arrangement with the Bank without involving him. In considering the question of compensation for loss of business, the learned Judge observed as follows;“ 20.I note that the Defendant had initially declined to settle the claim when it was reported by the Plaintiff but only agreed to do so once the Bank’s agency, Diamond Trust Insurance Agencies intervened in order to protect the Banks rights under the insurance contract. The Plaintiff testified that this vehicle was used for business and that for every day that the Defendant delayed in settling the claim, the Plaintiff was incapacitated and lost an opportunity to replace the same or find another source of income. I am persuaded that this loss was occasioned by the Defendant’ actions and that the Plaintiff is entitled to compensation.” 26.The learned Judge’s finding notwithstanding, during the hearing the respondent’s counsel agreed that while section 203 of the Insurance Act requires an Insurer to settle a claim within 90 days of the date of reporting the claim, there are no prescribed repercussions for failure to do so. It would seem then that the learned Judge’s reliance on delay in settling the claim, as a basis for awarding the respondent compensation for loss of business, was unwarranted. Moreover, as succinctly stated by this Court in Madison Insurance Company Ltd Vs. Solomon Kinara T/a Kisii Physiotherapy CliniC (Supra), a claim for consequential loss cannot succeed where it has not been agreed upon in the contract of insurance. The Court, while referring to the expression ‘Consequential Loss Insurance’ as defined in MacGilvary and Parkington on Insurance Law, 8th Edition under the heading ‘Insurance against Pecuniary Loss’ at pg 961, stated thus;“ 14.[…]‘1. Consequential Loss Insurance:2140: Loss of Profits: Many businesses wish to insure against the possibility of a fire or other catastrophe giving rise to a loss of profits or additional expense during the period after the occurrence of the peril insured against. It is accepted law that an ordinary insurance policy against, for example, fire does not cover loss of profits and it has even been held that a loss ofmarket caused by delay arising from a peril insured against is not covered by a standard form policy. Any type of consequential loss can be insured, but loss of profits or additional expenditure are the most usual subjects of insurance and for this reason the insurance discussed in this chapter is often referred to as loss of profits insurance. …It follows that loss of profits and other forms of consequential loss must be described in the policy and insured as such. The purpose of the insurance is to put the insured into the position he would be in if the profits had been earned. …’ 15.One thing is clear from this text; ordinary or standard form policies or contracts of insurance do not cover consequential loss unless the parties specifically contract that such loss would be covered… 16.The policy of insurance between the appellant and respondent was an ordinary or standard form contract and as such there was nothing to import into that policy the element of consequential loss. The respondent’s claim was that the loss was occasioned by the appellant’s wrongful repudiation or refusal to pay for the loss of the items the policy covered, but we do not think this takes the matter any further. The parties could have covered such an eventuality in their policy of insurance and in the absence of such a provision, the respondent was not entitled to claim consequential loss of profits.” 27.In Nyutu Agrovet Limited Vs. Airtel Networks Kenya Ltd (supra), the Court held as follows;“ 50.Even if we were to be persuaded that the damages for tort and breach of contract were foreseeable, and therefore an indirect consequence of the alleged breach, hence recoverable, there is yet a major obstacle to their recovery. The parties in their wisdom clearly excluded liability for damages for consequential loss under clause 13.7.1. The court looks at the contractual text to determine whether a claim arises out of the agreement, and if so, whether it is recoverable under the contract. In the circumstances of this case, we find and hold that damages for consequential loss were not contemplated and were expressly excluded in clause 13.7.1.” 28.Accordingly, parties having excluded liability for consequential losses under the Insurance contract, it is our finding and we so hold, that it was not open to the learned Judge to award the respondent damages for loss of business. 29.Further, it is the appellant’s contention that according to the Insurance Law principle of restitution, the learned Judge should have used the pre-accident valuation value of the vehicle, which was assessed at Ksh.3,800,000, to compensate the respondent, and not the value of the vehicle at the time of purchase. In addition, the settlement that was offered to the respondent, less the salvage, was in line with the principle, which aims at putting the insured in the same financial position that he was in before the loss, and not when he purchased the motor vehicle. The respondent, however, protested that line of submission arguing that he had a legitimate expectation that the appellant would pay him the total sum insured of Ksh.4,500,000. Moreover, restoring him to his former position, in accordance with the principle of restitution, meant that he ought to have been compensated the total value of the vehicle. We agree with the submissions of the appellant, as supported by the High Court in PERMUGA AUTO SPARES & ANOTHER Vs. MARGARET KORIR TAGI (supra), that once a vehicle has been written off, the most rational compensation would be the pre-accident value which is expected to put the owner to as near as possible to the state he would have been if the accident and loss had not happened. In that decision, the court reasoned thus, and we agree;“It is the courts view that once a vehicle has been written off, the only compensation is the per-accident value, less salvage value as assessed and other reasonable consequential expenses that are subject to prove. There would ordinarily be assessment charges, towing charges, excess but not loss of user. The payment of the pre-accident value is made to bring the owner to as near as possible to the state he would have been if not for the accident and loss. In the court's view, to award damages for loss of user as well as the pre-accident value and other consequential losses would be to award double compensation.” 30.We are further persuaded by the sentiments of the same court in MBUGU DAVID & ANOTHER Vs. MARGARET NDINDA WAMWENGA (supra) of which we approve, to the extent that the pre-accident report is vital in determining the actual value of loss suffered and ultimately the amount that the Insurer is liable for under an insurance policy. In that matter the court stated thus;“Applying these principles to the case, we are not told of the value of the motorcycle as at the time of the accident. The extent of the damage and value of each item was not availed at the trial court by an assessor. The motorcycle was about eight months old since date of purchase. There was need to provide for depreciation of asset. The respondent had a duty to prove all these at the trial court before discretion could be exercised in her favour. What the respondent did was to throw the receipt on purchase price at the court and demanded to be compensated for the loss.[…]It is true the respondent pleaded specific claim of Ksh.75,000/= as value of loss of the damaged motorcycle. Besides particularizing the value, she had a duty to give an assessor’s report on pre-accident value and value of salvage for the court to come up with actual loss suffered. The evidence in this respect fell short of the threshold to prove material damage.” 31.The appellant disputes the Ksh.2,617,900 award that was granted to the respondent as the balance of the sum insured, submitting that the respondent was entitled to the Ksh.1,882,100, being the balance remaining after deducting from the Ksh.3,800,000 pre-accident value of the vehicle, the 10% excess as per clause 11 of the Insurance Policy and the salvage value of Ksh.1,537,900. Clause 11 of the Insurance Policy at page 165 of the record states;“MEMO: 11 Excess – Own Damage Claims ClauseIt is hereby understood and agreed that notwithstanding anything to the contrary contained in section1 of this Policy the Insured in respect of each and every event shall be responsible for the first 10% of the Insured’s estimate of vehicle value stated in the Policy schedule Minimum Kshs.50,000/=.” 32.The respondent does not contest the import of the provision. He, however, charges that the issue was never raised in the appellant’s pleadings nor brought to his attention. We think, the respondent having been a party to the subject Insurance Contract, it behooved him to be informed of each of the clauses therein and their significance. Further, it was the respondent’s assertion that he was never informed by the appellant to collect the motor vehicle salvage from the garage that repaired it. We were however referred to two (2) newspaper notices at pages 125 and 126 of the record, dated July 2016, where the law of firm Kaplan & Stratton Advocates, acting for Auto-Sueco Kenya Ltd, notified the respondent to collect the motor vehicle from the garage premises. We further take note and concur with the learned Judge’s observation that, upon the respondent learning about the payment that was made to him through the bank, in settlement of the claim, he ought to have mitigated his loss by finding out the fate of the salvage vehicle, but he did not. 33.For the foregoing reasons, this appeal is meritorious and we allow it. We set aside the impugned judgment and decree and substitute therefor an order that the respondent was entitled to the Ksh.1,882,100, being the balance of the sum insured, with interest from the date of filing suit. We make no order as to costs. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY, 2026O. KIAGE……………….……………… JUDGE OF APPEALJAMILA MOHAMMED…………………………… JUDGE OF APPEALNYAMWEYA……………..……………….JUDGE OF APPEALI certify that this is a true copy of the original.Signed DEPUTY REGISTRAR