https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7280

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CIVIL SUIT NO. E024 OF 2024** **REHEMA KORIOMART INVESTMENT LIMITED** ............................ **PLAINTIFF** **VERSUS** **KENIDIA ASSURANCE COMPANY LIMITED** ................................**DEFENDANT** **KALSI PROPERTIES LIMITED …………….**.................................**THIRD PARTY** **Coram: Before Justice R. Nyakundi** **M/s Ochieng’ K. & Associates** **M/s Makambo Makabila & Co. Advocates.** **M/s Mburu Maina & Co. Advocates** **M/s Kariuki & Kayika Advocates** **JUDGMENT** 1. The Plaintiff instituted the instant suit vide its amended Plaint dated 27th November, 2024 in which it prayed for a judgment against the Defendant for: - 1. *The sum of Kshs. 50,000,000/=.* 2. *Kshs. 9,600,000/= being reimbursement of costs of demolition of the building and clearance of the rubbles.* 3. *Interest on (a) above at Court rates from the date of filing suit until payment in full.* 4. *The costs of the suit be provided for.* 2. The Plaintiff’s case is that it was at all material times the owner of a 5-storey building erected on property *L.R. No. Eldoret/Block 6/73 – Eldoret Municipality*, along Uganda Road in Eldoret Town comprising of shops, hotel and lodging popularly known as Mountain view. 3. The Defendant on its part is an insurance company with its head office in Nairobi but with branches across the country including Eldoret town. 4. It is the Plaintiff’s case that to protect its building damage or loss that may be caused by perils such as fire, water, storm, floods, earthquakes or impact by any road vehicle or animal, it took out fire and special perils Policy No. P/109/04/0440/2007/02/S00062 on 9.3.2023 from the Defendant upon which the Defendant agreed to indemnify the Plaintiff against losses and damages in respect of the insured risks up to a maximum of Kshs. 50,000,000/=. 5. The Plaintiff further averred that with respect to the damage or loss caused by impact by any road vehicle or animal impact, the insurance entailed indemnity against loss and damage to the Mountain View Building provided that the damage or loss was not caused by any vehicle or animal owned by the Plaintiff. Further that on or about 27th September, 2023, during the existence and subsistence and validity of the fire and special perils policy taken by the Plaintiff from the Defendant, Excavator working at a construction site adjacent to the Plaintiff’s property hit the Mountain View Building and caused the building to shake and develop cracks on the floor and the wall that eventually caused the building to tilt on one side. 6. The Plaintiff averred that it reported the incident to the police and notified the Defendant to allow the Defendant assess the damage. That Mountain view building was occupied by tenants and the cracks drew attention of the County Government Departments. Following an inspection by Whitestone Engineering Limited and on the directive of the County Government of Uasin Gishu, the building was condemned as structurally unsound and was demolished on grounds of public safety. 7. Further that in compliance with the directives by the County Government, the Plaintiff hired Dominion Developers who demolished the condemned building and carried away rubbles at a cost of Kshs. 9,600,000/=. The Plaintiff claims this cost from the Defendant. 8. The Plaintiff highlighted that the building in question had been constructed in 1970s and its value was Kshs. 50,000,000/= at the time it was damaged by the impact from the excavator working on the adjacent property that eventually led to its demolish on public safety grounds. The excavator that caused the damage on the Mountain view building was not owned by the Plaintiff and the loss suffered by the Plaintiff as pleaded were fully and expressly covered by the policy and the Plaintiff is eligible for indemnity from the Defendant having fully paid the premiums. 9. The Plaintiff averred that it notified the Defendant of the loss as pleaded and despite lodging a claim and providing supporting documents, the Defendant has refused to indemnify the Plaintiff for the loss and damage all totaling to Kshs. 50,000,000/=. 10. The Defendant filed an Amended Statement of Defence dated 12th February, 2025 in which it admitted the existence of the Policy but denied liability. The Defendant contended that the Policy only covered fire and special perils and that the loss sustained by the Plaintiff which the Defendant attributed to differential settlement caused by construction works on the adjacent plot, was not among the perils insured under the Policy. In the alternative, the Defendant pleaded that the demolition costs were not recoverable, that the proper measure of compensation was the reinstatement value of Kshs. 41,991,711.90. 11. The Defendant averred that there was no evidence of involvement of an excavator as alleged and as such the provisions of the policy invoked by the Plaintiff did not apply. That upon its assessment of the matter, the Defendant established that the facts did not disclose any material that could call the Defendant to compensate the Plaintiff and the Defendant therefore repudiated the claim. The Defendant also averred that the policy contract did not cover any costs of demolition and the Defendant therefore totally denied being liable to reimburse the Plaintiff for the alleged costs of demolition. The Defendant further averred that the Plaintiff’s cause of action only lies against the owner or operator of the alleged excavator (the third party herein). 12. The Defendant highlighted that if at all there was any liability arising from the alleged incident then the Defendant thus sought indemnity against the third party vide a third-party notice dated 12th February, 2024 under the principle of subrogation to recover the outlay. 13. By a Third-Party Notice dated 12th February, 2024, the Defendant joined Kalsi Properties Limited as the Third Party herein, seeking indemnity against any judgment that may be entered against it on the principles of subrogation. The Defendant averred that the damage to the Plaintiff's building if any was solely or substantially contributed to by the negligence or recklessness of the Third Party, its servants or agents in the conduct of construction works on the adjacent plot. 14. The Third Party filed its Defence to the Third-Party Notice dated 27th March, 2025 in which it denied that any excavator was on its site on the material date; denied any negligent or reckless conduct on its part; and pleaded that the construction works were undertaken professionally and exclusively within its premises by an independent contractor with due care and attention. The Third Party further pleaded that the doctrine of *res ipsa loquitur* and the principle of subrogation were inapplicable to the matter. **Evidence** 1. The suit was heard on diverse dates. The Plaintiff called four (4) witnesses, the Defendant called two (2) witnesses and the Third Party called four (4) witnesses. A summary of the evidence is set out below. **The Plaintiff’s evidence** 1. **PW1** – Moss Mukung, the Plaintiff's Property Manager since 2018, adopted his witness statement dated 8th October, 2024. He testified that he reported to work six days a week and that his daily routine included inspecting both the interior and external areas of the Mountain View Building. He stated that the building, though old, was well maintained, clean and had no visible cracks at all material times. He testified that in September, 2023, the structure on the adjacent property was demolished and excavators and trucks were deployed to the site to excavate the foundation of the new building. 2. PW1 testified that on the afternoon of 27th September, 2023, while at his third-floor office, he heard a loud bang followed by shaking of the building. A short while later, he heard a second bang, prompting him to go downstairs. On reaching the ground floor, he found a small group of people gathered on the side of the building looking at the wall. Upon enquiry, PW2 informed him that the excavator working on the adjacent property had lost control of its shovel and hit the Mountain View Building, causing cracks. PW1 inspected the area and saw cracks not only on the walls but also on the floors. He called his supervisor Mr. Brian Kiprono, who in turn reported the incident to the police and to the Defendant. Engineers were thereafter engaged who recommended demolition, and the County Government of Uasin Gishu issued a statutory notice for demolition on grounds of public safety. 3. **PW2** – Wycliffe Musinde Munyasia, a security guard at the Mountain View Building from June, 2022, adopted his witness statement dated 8th October, 2024. He testified that on 27th September, 2023 at around 4:00 p.m., while seated at the veranda where he registered visitors, one of the excavators working on the neighboring property hit the Mountain View Building while trying to turn. The impact was big and loud and drew the attention of nearby people. He moved closer to see the state of the wall when the excavator hit the wall a second time while trying to move away. He saw a crack on the wall at the point of impact. On cross-examination, PW2 stated that the two incidents happened about three minutes apart, and that the excavator remained on site for two days after the incident although he could not tell its colour or registration number. 4. **PW3** – Joseph Kariuki Kinyua, a bodaboda rider operating along Uganda Road within Eldoret Town, testified that on 27th September, 2023, while at his bodaboda stage about 20 metres away from the Mountain View Building, he witnessed an excavator's shovel hit the Plaintiff's building in two quick successions of less than one minute. He approached the building thereafter and observed cracks on the wall. On cross-examination, he maintained that from his distant and elevated position on his motor bike, he could clearly see the shovel of the excavator when it hit the building. 5. **PW4** – Moses Kiptoo Rono, a director of the Plaintiff, adopted his witness statement and testified that the Plaintiff was the registered owner of the property L.R. No. Eldoret Municipality Block 6/73, on which the Mountain View Building stood. He confirmed the renewal of the insurance Policy on 9th August, 2023 for an insured sum of Kshs. 50,000,000/=. He produced the structural assessment report by Whitestone Engineering Limited, the statutory notice by the County Government of Uasin Gishu, the Claim Form lodged with the Defendant on 4th October, 2023, the Defendant's repudiation letter dated 10th December, 2023, and the receipts for the demolition and clearance costs. **Defendant’s Evidence** 1. **DW1** – Daniel Kimani, an employee of the Defendant in the Marketing Department, adopted his witness statement dated 15th May, 2025. He acknowledged the existence of the Policy and that it was in force at the material time. He testified that on or about 4th October, 2023, the Plaintiff reported the incident and lodged a claim. Upon studying the Whitestone Engineering Limited report, DW1 noted that under the header "site visit and observations", the report stated that excavation for bases and column construction was done as well as demolition of a wall touching on Mountain View has caused instability leading to differential settlement. He concluded that the proximate cause of the loss was differential settlement caused by excavations near the insured's building. 2. DW1 testified that he checked the named perils under the Policy and concluded that the Defendant's liability did not attach since the loss did not arise from any of the named perils. On cross-examination, however, DW1 conceded that he had personally doubted that an excavator hit the building and agreed that an engineer's report attributing the cracks to differential settlement was more believable. He also confirmed that the Defendant had no expert report of its own or any report from the National Construction Authority on the cause of the collapse. 3. **DW2** – Evans Nganai, a loss adjuster by profession, testified that he visited the scene after the incident and adjusted the loss to Kshs. 24,000,000/= based on the age of the building. On cross-examination, he stated that he relied on the report by Whitestone Engineers; that he could not confirm whether the Third Party had removed support which then caused structural damage to the Plaintiff's building; and that he acknowledged the report's finding that the building was bending because of an extra load. **Third party’s evidence** 1. **TPW1** – Daya Singh Kalsi, the Third Party's director, adopted his witness statement and denied that any excavator working on the Third Party's premises lost control and hit the Plaintiff's building. He stated that the alleged excavator was imaginary, that no excavator was on the premises on the material date, and that the stage of construction had already passed the point at which an excavator would be required. 2. **TPW2** – Alfred Ambani, a construction foreman with Balaji Constructors Limited (the Third Party's contractor), adopted his statement dated 15th May, 2025. He testified that there was no excavator on site on the material date and that excavations had been carried out by hand. On cross-examination, however, he conceded that there was heavy equipment on site for loading and carting away debris from the construction site. The witness did not produce his contract of employment, payslip or any documentation tying him to the site. 3. **TPW3** – Engineer Benjamin Mumia visited the scene after the incident on the invitation of the Third Party. His opinion (TP-EXBT 7) was that the probable cause of the cracks was differential settlement seen from bulging pillars, most likely due to the building carrying an extra load than its design. On cross-examination, he admitted that compression could occur instantly or progressively; that an impact could be at a point and could cause compression failure; that he prepared his report on the basis of photographs and videos taken by others; and that he relied on a googled general theoretical presentation on differential settlement. He produced no certificates evidencing his qualifications. 4. **TPW4** – Jacktone Kiprop, a physical planner and the County Director of Physical Planning, testified that he visited the scene and, based on a report by the county health authorities on the safety of the members of the public, advised the Plaintiff to demolish the building. He produced building plans which, according to him, showed that the Plaintiff's building had been approved for four floors but had been constructed with an additional floor. On cross-examination, he conceded that he did not have an inventory or documented chain of custody to demonstrate that he had obtained the documents from the official records held by the County Government, or that the documents produced represented the complete record of all documents held in respect of the Plaintiff's property. **Submissions** 1. At the close of the trial, parties were directed to file written submissions. The Plaintiff's submissions are dated 28th January, 2026; the Defendant's submissions are dated 27th February, 2026; and the Third Party's submissions are dated 11th February, 2026. I have carefully considered all the submissions and the authorities relied upon by Counsel. Their salient points are summarized below. **Plaintiff’s written submissions** 1. Counsel for the Plaintiff, Mr. Makambo distilled four issues for determination, namely: (i) whether the impact on the Mountain View Building was a peril insured under the Policy; (ii) whether the cracks on the Mountain View Building were caused by impact or by other factors; (iii) whether the Defendant is liable to compensate the Plaintiff; and (iv) if so, in what sum. 2. On the first issue, Counsel submitted that Clause J of the Policy exhibited by the Plaintiff and Clause G of the Renewal Schedule exhibited by the Defendant, under the heading "Impact Made by Any Road Vehicle or Animal" and "Impact" respectively, are substantively similar and cover loss or damage caused by impact by any road vehicle or animal not belonging to or under the control of the insured. It was submitted that the excavator which hit the Plaintiff's building did not belong to or operate under the control of the Plaintiff, and the impact therefore fell squarely within the insured perils. 3. On the second issue, Counsel submitted that the Plaintiff has consistently and uncontrovertibly asserted that the Mountain View Building was structurally sound and without cracks prior to 27th September, 2023. The Plaintiff's case was supported by three eyewitnesses PW1, PW2 and PW3 – who gave consistent direct evidence of the impact. By contrast, the Third Party's denial was undermined by TPW2's admission in cross-examination that heavy equipment was on site for loading and carting away debris, and by the Bills of Quantities exhibited which provided for excavation up to 3.1 metres deep, a depth that necessarily required the use of heavy machinery. Counsel relied on *Safarilink Aviation Limited v Trident Aviation Kenya Limited & Another [2015] eKLR* for the proposition that failure to rebut evidence tendered by one party leaves the Court with no option but to draw an inference that the facts as presented are true. 4. Counsel further submitted that the Defendant's and the Third Party's reliance on "differential settlement" caused by the alleged extra floor and pillar overloads is purely speculative. TPW3 (Engineer Mumia) admitted on cross-examination that he never visited the site, never examined the building and never prepared a substantive expert report – the document produced being only a "googled" general theoretical presentation. Even on his own evidence, an impact could cause compression failure. TPW4 (Mr. Kiprop) was unable to authenticate the building plans he produced or to provide a documented chain of custody. Counsel relied on *William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE 526* and *Re H and Others (Minors) [1996] AC 563* for the standard of proof on a balance of probabilities, and on *Ngiri v Africa Merchant Assurance Co. Ltd [2022] KEHC 21 (KLR)* and *Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR* for the proposition that he who alleges a specific defence bears the burden of proving it. 5. On the third issue, Counsel submitted that paragraphs 9A, 9B and 9C of the Defendant's Amended Defence amount to admissions of liability under the Policy save for the quantum payable, and invoked Order 13 Rule 2 of the Civil Procedure Rules and *Synergy Industrial Credit Limited v Oxyplus International Limited [2021] eKLR* for the principle that admissions in pleadings are conclusive and that the Court may proceed to give judgment thereon. Counsel further relied on *CIC General Insurance Co. Ltd v Charles G. Muriithi T/A Busy Angels Investment [2025] KEHC 9698 (KLR)* where the Court held that the insurer's duty to compensate genuine loss is mandatory, and on Section 156(1) of the Insurance Act, Cap. 487, for the proposition that an insurer who has received premiums has assumed the risk. 6. On the fourth issue (quantum), Counsel submitted that: (i) the insured sum of Kshs. 50,000,000/= was the agreed limit of indemnity under the Policy; (ii) the Defendant had only 49 days before the loss collected full premiums based on that sum and cannot now turn around to devalue the building to Kshs. 41,991,711.90 or Kshs. 24,145,235/=; (iii) the Defendant's purported "reinstatement value" of Kshs. 41,991,711.90 was based on a Bill of Quantities allegedly prepared by one Mr. Samora Machell of Hallmark Quantity Surveyors, but neither was the BQ exhibited nor was Mr. Machell called to substantiate the figure; and (iv) on the cost of demolition and removal of debris, the Plaintiff, although having receipts for Kshs. 9,600,000/= limited its prayer to 10% of the insured sum (Kshs. 5,000,000/=) less the 1% excess, in line with the Removal of Debris clause in the Policy Schedule. Counsel concluded by praying for judgment as prayed in the Amended Plaint. **Defendant’s written submissions** 1. Counsel for the Defendant, Mr. Ochieng, framed four issues for determination, namely: whether the alleged incident of 27th September, 2023 was an incident covered by the Policy; whether the Defendant is liable to compensate the Plaintiff and at how much; whether the Defendant is entitled to seek indemnity from the Third Party; and who is to pay the costs of the suit. 2. On the first issue, Counsel acknowledged the existence of the Policy and referred to Clause G of the Special Perils, on page 10 of the Defendant's trial bundle, which extends cover to "LOSS OR DAMAGE to the property described in the Schedule directly caused by impact with any of the said buildings insured under this policy and/or any walls, gates and fences around and pertaining thereto, by any road vehicle, or animal not belonging to or under the control of the insured or any occupier of the premises or their respective agent or employee." Counsel submitted that, at the time of reporting the incident to the Defendant on 29th September, 2023, the Plaintiff made no mention of any excavator. The excavator theory only being introduced at the time of filing suit and amounting to an afterthought intended to bring the claim within the parameters of the Policy. 3. Counsel submitted that the Whitestone Engineering Limited report (commissioned by the Plaintiff itself) attributed the cracks to differential settlement caused by excavation for bases and column construction and the demolition of a wall touching on Mountain View. The General Adjusters Kenya Limited report further found that the loss was due to removal or weakening of support following the actions of excavation by a third party leading to settlement. There is no expert report attributing the cracks to impact, and none of the Plaintiff's witnesses could give the registration number, make, model or even colour of the alleged excavator, nor were any photographs taken in this day and age of mobile technology. 4. Counsel relied on *Tamarind Restaurant Mombasa v Munga (Appeal E263 of 2024) [2026] KEELRC 197 (KLR)* and on *National Bank of Kenya Ltd v Pipeplastic Samkoit (K) Ltd & Another [2001] eKLR* for the proposition that a Court cannot rewrite a contract between parties, who are bound by the terms of their contract unless coercion, fraud or undue influence are pleaded and proved. It was submitted that the cause of the loss having been differential settlement resulting from demolitions and constructions, the Plaintiff is not entitled to compensation as the loss does not fall under any of the perils provided for in the Policy. 5. In the alternative, on the issue of quantum, Counsel submitted that the building was a five-storey building about 34 years old and could not therefore be valued at Kshs. 50,000,000/=, the Plaintiff having over-insured the building for purposes of making undue profit under the Policy. The Defendant urged the Court to adopt the adjusted cost of Kshs. 24,145,234/= after accounting for depreciation, and to further deduct the salvage value of the materials (debris, windows, doors and steel), which the Defendant submitted must have been used by the Plaintiff in reconstructing the new building. Counsel relied on *Kenindia Assurance Co. Ltd v Monica Moraa [2016] KECA 687 (KLR)*, *United India Insurance Co. v. Kantika Colour Lab and others, Civil Appeal No. 6337 of 2001* and *Permuga Auto Spares & Another v Margaret Korir Tagi, Civil Appeal No. 288 of 2010* for the principle of indemnity and the proposition that compensation, even upon a total loss, is the pre-loss value less salvage value, plus reasonable consequential expenses subject to proof. 6. On the third issue, Counsel submitted that, in the event the Court is inclined to find for the Plaintiff, the Defendant is entitled to indemnity from the Third Party under the principle of subrogation. Whether the cracks were caused by an impact or by differential settlement, both were the result of construction activities undertaken by the Third Party on the adjacent plot and the Third Party should therefore bear the burden of any compensation payable. 7. On costs, Counsel invoked Section 27 of the Civil Procedure Act and prayed that the Plaintiff's suit be dismissed with costs, or, in the alternative, that the Defendant be indemnified by the Third Party together with costs. **Third party’s submissions** 1. Counsel for the Third Party, Mr. Langat, identified four issues for determination, namely: whether the damage to the Plaintiff's building was occasioned by the Third Party's negligence or recklessness or that of its servants, agents and workers; whether the Defendant is entitled to indemnity from the Third Party on any amount claimed by the Plaintiff; whether the Plaintiff is entitled to the claim for Kshs. 9,600,000/= claimed in the suit; and who should bear the costs of the suit. 2. On the first issue, Counsel submitted that it is trite law that he who alleges must prove and that, the claim of impact having been denied in toto, the burden lay on the Plaintiff under Sections 107 and 109 of the Evidence Act to prove the alleged impact. Counsel relied on *Hellen Wangari Wangechi v Carumera Muthini Gathua [2015] eKLR*, and on *Ahmed Mohammed Noor v Abdi Aziz Osman [2019] eKLR*, for the proposition that the legal burden of proof rests on the claimant throughout the trial. It was submitted that the Plaintiff's four witnesses gave conflicting versions as to the events of 27th September, 2023, none being able to identify the registration, make or model of the alleged excavator or to agree on the point of impact, on the time between the two alleged impacts (PW2 stated three minutes; PW3 stated less than a minute; PW1 stated ten minutes), or on whether the excavator was on the site after 7.00 p.m. The contradictions, it was submitted, undermined the consistency test for credible testimony. 3. Counsel further submitted that even on the Plaintiff's own case, the alleged "excavator" is not a "road vehicle" within the meaning of Clause G of the Policy. Relying on Black's Law Dictionary (11th Edition, p. 1868), Section 2 of the Traffic Act, Cap. 403 and Section 2 of the Public Roads and Roads of Access Act, Cap. 399, Counsel submitted that a "road vehicle" is a conveyance used on a road; whereas an excavator is a piece of construction plant deployed on a construction site, not used on a road, and therefore does not fall within the insured peril. The Third Party also relied on TPW3's opinion that the probable cause of the cracks was differential settlement from the bulging pillars due to the Plaintiff's building carrying an extra load than its design, and on TPW4's evidence that the Plaintiff had constructed an extra floor in excess of the approved plans. 4. On the second issue, Counsel submitted that since the Plaintiff has not proved any negligence or impact by the Third Party, the Defendant's claim for indemnity, premised entirely on the same allegations, must collapse. The Defendant having repudiated the claim and itself not being convinced that the Third Party damaged the Plaintiff's building, it cannot now turn around to call upon the Third Party to bear the loss. 5. On the third issue, Counsel submitted that the cause of action arising from an insurance policy whose limits are clearly expressed, the Plaintiff is not entitled to seek compensation beyond the limits of the contract. The claim for Kshs. 9,600,000/= as demolition costs, it was submitted, is misplaced and ought to be struck out. In any event, the Plaintiff did not prove the alleged demolition costs to the required standard by way of admissible receipts. 6. In conclusion, Counsel submitted that neither the Plaintiff nor the Defendant proved any negligence or liability on the part of the Third Party, and urged the Court to dismiss the Plaintiff's allegations against the Third Party and to also dismiss the Defendant's Third-Party claim with costs. **Analysis and determination** 1. I have carefully considered the pleadings, the evidence, both oral and documentary the rival submissions of Counsel and the authorities cited. I now proceed to determine the issues that arise. 2. This insurance contract dispute like others entered into by the parties commonly referred to as the insurer and the insured are underpinned under the doctrine of Uberrima Fides (utmost good faith) and must be interpreted strictly as therein written. Courts cannot rewrite contracts or grant equitable relief if it contradicts the explicit terms mutually agreed upon by the parties. The following guiding principles are of fundamental importance when it comes to interpretation of insurance contracts: * **Principle of Utmost Good Faith:** Both the insurer and the insured must disclose all material facts. Non-disclosure gives the insurer the right to repudiate the policy. * **Plain and Literal Construction:** The policy must be read as a whole. The Court will interpret the words in their natural and ordinary sense unless a special meaning is evident from the context. * **Strict Interpretation of Exclusion Clauses:** Clauses that exclude liability must be construed strictly against the insurer, meaning any ambiguity should favor the insured. * **Rule of Contra Proferentem:** If a standard-form policy contains an ambiguity or is capable of two meanings, the interpretation that works against the drafter (the insurance company) is preferred. * **Intention and Risk Coverage:** The Court evaluates the purpose of entering into the contract and considers the specific risks the parties intended to cover. ***Whether the impact on the Mountain View Building was a peril insured under the Policy*** 1. It is common ground that, at the material time, the Plaintiff held a valid fire and Special Perils Insurance Policy No. P/109/04/0440/2007/02/S00062 issued by the Defendant, that the Policy had been renewed on 9th August, 2023, that the insured sum was Kshs. 50,000,000/= and that the Policy was in force on 27th September, 2023. The only question is whether the peril giving rise to the loss is one of those insured under the Policy. 2. The Policy document exhibited by the Plaintiff contains Clause J under the heading "IMPACT MADE BY ANY ROAD VEHICLE OR ANIMAL". The Renewal Schedule exhibited by the Defendant, which represents the operative document at the time of the loss contains Clause G under the heading "Special Perils" sub-clause (g) "Impact", which extends cover to: *LOSS OR DAMAGE to the property described in the Schedule directly caused by impact with any of the said buildings insured under this policy and/or any walls, gates and fences around and pertaining thereto, by any road vehicle, or animal not belonging to or under the control of the insured or any occupier of the premises or their respective agent or employee."* 1. The Third Party has invited the Court to find that an excavator is not a "road vehicle" within the meaning of Clause G, relying on Section 2 of the Traffic Act and Section 2 of the Public Roads and Roads of Access Act, and on the Black's Law Dictionary definition of a "vehicle". With respect, I am unable to agree with this construction. First, the Policy itself does not define the term "road vehicle". Second, the dictionary definition cited by Counsel itself defines a vehicle broadly as "*any conveyance used in transporting passengers or things by land, water or air*". Third, and most importantly, an excavator is a self-propelled mechanical conveyance capable of moving on public roads. Indeed, excavators routinely travel between construction sites on public highways under their own power. Fourth, in the construction of insurance policies, ambiguity, if any, is resolved against the drafter (*contra proferentem*). 2. The Latin maxim *verba chartarum fortius accipiuntur contra proferentem* is the source of the phrase *"Contra Proferentem,"* which states that in case of any uncertainty as to the meaning of a written contract, the party who proposed it will have the words interpreted against them. The basis of this rule falls under the principle that a person who is responsible for any vagueness in his own expressions and thoughts does not have the right to persuade the other to agree with him on the contract on the idea that the words used by him would mean one thing, however, he expects from the Court adoption of an interpretation with a different meaning and advantageous for him. (*See Beatson, J., & Burrows, A. (2020). Anson’s law of contract (31st ed.). Oxford University Press*). 3. The Defendant, having drafted the Policy and having failed to define the term "road vehicle" narrowly, cannot now invite the Court to read into the clause a restriction that excludes construction plant deployed adjacent to the insured premises. 4. The Court of appeal in **National Bank of Kenya Ltd v. Pipe Plastic Samkolit (K) Ltd & Anor (2002) EA 503**, stated as follows: “A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract, unless coercion, fraud or undue influence are pleaded and proved. There was not the remotest suggestion of coercion, fraud or undue influence in regard to the terms of the charge.” 1. From the comparative law jurisdiction with whom we share a common law heritage the Courts had to delve to this issue as demonstrated by the decisions herein: * ***General Assurance Society Ltd. v. Chandmull Jain (1966)***: Affirmed that the duty of the Court is to interpret the words of an insurance contract as expressed by the parties, and the contract must be read as a whole to determine the mutual rights and liabilities. * ***Manmohan Nanda v. United India Insurance Co. Ltd. (2022)***: The Supreme Court reiterated that repudiation of a claim cannot be arbitrary. The contract must be interpreted considering the realities of modern medical practices, reinforcing the protection of the insured against vague exclusions. * ***Jacob Punnen & Anr. v. United India Insurance Co. Ltd. (2021)***: Emphasized that insurance policies must be construed in their entirety, and the fundamental reason for entering into the contract (and the risks sought to be covered) must dictate the interpretation. * ***Peacock Plywood (P) Ltd. v. Oriental Insurance Co. Ltd. (2021)***: Clarified that a marine insurance policy does not automatically terminate simply because of an unforeseen event like a stranded ship, and evaluated the terms exclusively based on the risks intended to be covered. 1. In the legal and regulatory provisions of the Insurance Act of Kenya. It is to be understood that it lays down the very foundation of the contract of the insurance and the risk to be covered under the policy will be a material fact. For an easy reference to the definition of proposal form along with the explanation the context is as follows: *"Proposal Form" means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk, and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted. Explanation: "Material" for the purpose of these regulations shall mean and include all important, essential and relevant information in the context of underwriting the risk to be covered by the insurer.”* 1. Just as the insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of the policy that is going to be issued to him and must strictly conform to the statements in the proposal form or prospectus, or those made through his agents. Thus, the principle of utmost good faith imposes meaningful reciprocal duties owed by the insured to the insurer and vice versa. This inherent duty of disclosure was a common law duty of good faith originally founded in equity but has later been statutorily recognised as noted above. It is also open to the parties entering into a contract to extend the duty or restrict it by the terms of the contract. 2. The duty of the insured to observe utmost good faith is enforced by requiring him to respond to a proposal form which is so framed to seek all relevant information to be incorporated in the policy and to make it the basis of a contract. The contractual duty so imposed is that any suppression or falsity in the statements in the proposal form would result in a breach of duty of good faith and would render the policy voidable and consequently repudiate it at the instance of the insurer. 3. In relation to the duty of disclosure on the insured, any fact which would influence the judgment of a prudent insurer and not a particular insurer is a material fact. The test is, whether, the circumstances in question would influence the prudent insurer and not whether it might influence him vide Reynolds vs. Phoenix Assurance Co. Ltd., (1978) 2 Lloyd’s Rep. 440. Hence, the test is to be of a prudent insurer while issuing a policy of insurance. 4. The basic test hinges on whether the mind of a prudent insurer would be affected, either in deciding whether to take the risk at all or in fixing the premium, by knowledge of a particular fact if it had been disclosed. Therefore, the fact must be one affecting the risk. If it has no bearing on the risk it need not be disclosed and if it would do no more than cause insurers to make inquiries delaying issue of the insurance, it is not material if the result of the inquiries would have no effect on a prudent insurer. *(See the principles in the case of Mahakali Sujatha vs The Branch Manager, Future Generali India Life Insurance Company Limited & Another Civil Appeal No. 3821 of 2024).* 5. There is one further consideration. The peril insured against in Clause G is impact by a moving mechanical object outside the insured's control. That is the substance of the risk. An excavator on a neighboring construction site, which strikes the insured premises while its operator is maneuvering, is precisely the kind of event the clause was drawn to cover. The Defendant's construction would mean that the same loss, caused by the same impact, would be covered if the offending vehicle were a lorry but not if it were an excavator. I can see no commercial logic for such a distinction, and none has been suggested. 6. For these reasons, I hold that impact by an excavator on the Mountain View Building, if proved on the evidence, falls within Clause G of the Renewal Schedule and the corresponding Clause J of the Policy document. ***Whether the cracks on the Mountain View Building were caused by impact from the* excavator *or by other factors*** 1. The Plaintiff's case is that the cracks were caused by an excavator working on the adjacent property, which lost control of its shovel and hit the Mountain View Building twice in quick succession on the afternoon of 27th September, 2023. The Defendant and the Third Party deny that any excavator was on site at the material time, and contend that the cracks were caused by differential settlement of the foundation soil, occasioned by either the excavation works carried out by the Third Party on the adjacent property, or the alleged extra weight occasioned by an unauthorized additional floor on the Plaintiff's building. 2. The burden of proving impact by an excavator lay on the Plaintiff. The standard is on a balance of probabilities. The question is whether, taking the evidence as a whole, it is more probable than not that the cracks were caused by impact from the excavator. 3. The Plaintiff called eyewitnesses – PW1, PW2 and PW3 whose evidence I have carefully considered. PW2, the security guard, gave direct evidence of seeing the excavator's shovel strike the wall of the building twice. PW3, an independent bodaboda rider with no apparent interest in the suit, corroborated PW2's evidence from a vantage point about 20 metres away. PW1, the Property Manager, did not himself see the impact but arrived at the scene immediately thereafter, was told of the impact by PW2, and personally inspected the resulting cracks. The three witnesses were consistent on the central fact, that an excavator hit the building and were unshaken on cross-examination on this fundamental point of evidence. 4. The Third Party has pointed to certain discrepancies in the Plaintiff's evidence: the time between the two impacts variously described as three minutes, ten minutes or less than a minute, the precise point of impact, the color and registration number of the excavator, and the time at which the excavator left the site. I have considered these discrepancies. It is settled that minor discrepancies in witnesses' accounts of such a sudden event are common and do not necessarily destroy the credibility of the witnesses. The discrepancies pointed out do not, in my view, go to the central question of whether the excavator did in fact strike the building. None of the witnesses said anything different about what they saw. They all said an excavator struck the building. The credibility of three independent witnesses on the central fact is not diminished by their inability to recall, weeks or months later, the precise registration plate or color of a piece of construction equipment they had no occasion to scrutinize. 5. By contrast, the rebuttal evidence offered by the Defendant and the Third Party is, with respect, conspicuously weak. The Defendant did not, at any time, send an officer to inspect the site. DW1, who took the decision to repudiate the claim, candidly conceded under cross-examination that he had doubted from the outset whether an excavator had been involved. DW2, the loss adjuster, did not himself form any view on the cause of the loss, but proceeded to adjust the loss on the basis of the Whitestone report. As to the Third Party, TPW1 (the director) was not present on the site on the material date and his denial is one of bare assertion. TPW2 (Alfred Ambani) although described as the foreman/site supervisor produced no contract of employment, no identification card from the contractor and no other documentation tying him to the site, and is not registered with the National Construction Authority as a site supervisor. More damagingly, TPW2 conceded in cross-examination that there was heavy equipment on site for loading and carrying away debris, a concession at odds with the categorical denial in the Third Party's pleadings that any heavy machinery whatsoever was deployed. Further, the Bills of Quantities annexed to the Third Party's own construction contract with Balaji Construction Company Limited provided for excavation up to a depth of 3.1 metres, a depth that, as a matter of common sense and ordinary construction practice, plainly requires the deployment of mechanical excavators or similar heavy machinery. 6. In the present case, once the Plaintiff correlated evidence from the witnesses to prove existence or non-existence of the facts in issue as provided under Section 107(1), 108, 109 & 112 of the Evidence Act the burden shifted and rests on the insurer, the 1st Defendant to establish materiality of the facts suppressed on the incident of excavation by a positively identified machinery which was on site next to the building subject matter of the policy now under interpretation by this Court. It now remained the duty of the first Defendant to show that the insured had knowledge about such suppression so that the repudiation of the claim could be justified by the insurer. In the present case the onus was on the insurer to show that the insured the Plaintiff to this dispute had fraudulently given false information as to the occurrence of the incident and the said information was related to a material fact which does bring the claim into the perspective of the maxim of uberrimae fidei which doctrine governs insurance contract. 7. In the interpretation of the insurance policy the duty of an insured have been explicitly dealt with by learned Author *MacGillivray on Insurance Law (12th Edn, Sweet & Maxwell, London, 2012 at p 477).* *“... the assured must disclose to the insurer all facts material to an insurer's appraisal of the risk which are known or deemed to be known by the assured but neither known nor deemed to be known by the insurer. Breach of this duty by the assured entitles the insurer to avoid the contract of insurance so long as he can show that the non-disclosure induced the making of the contract on the relevant terms.”* 1. In addition, insurance is a contract of speculation. In the entire scope of negotiating the contract of insurance as between the Plaintiff and the 1st Defendant there is no evidence to suggest that during the period under review the underwriter in recommending for the policy to be issued to the Plaintiff there was some non-disclosure of material facts which mislead the underwriter into a belief that the circumstances of the risk did not exist. The duty of the insured the Plaintiff to this case was to observe utmost good faith requiring to respond to a proposal form which is framed in a such a way by the insurer, the 1st Respondent to seek all relevant information to be incorporated in the policy so as to make it the basis of the contract. 2. My reading in and reading out of the impugned policy, the circumstances of this particular case are that the subject matter of the insurance policy is not an ordinary risk but is exceptionally liable to be affected by the peril which I refer to as the peril insured against which I refer to as physical hazard of any moving motor vehicle within the locus in quo of the building. That therefore leaves the Court to look at the materiality of particular facts on how the building came to be placed at a risk calling in for the 1st Defendant, the insurer to come through for the insured for the loss and damage suffered. 3. The Courts have entered into the realm of insurance law on how insurance policies are to be interpreted and construed. These cases generally establish that the insurance contracts are governed by established rules of construction, interpreting the clear, natural meaning of words while strictly construing ambiguous clauses against the insurer. Sita Steel Rolling Mills Ltd v Jubilee Insurance Co. Limited [2007] eKLR**:** A crucial decision on the interpretation of material non-disclosure. The Court established that the onus is strictly on the insurer to prove that the undisclosed fact was material to the risk being insured 4. The basic rules observed in making a proposal for insurance contract have been discussed at various forums by scholars, jurists and learned authors interested in perfecting the privity of contract between the insured and the insurer. Once such text which puts it in context is the *Halsbury’s Laws of England 4th Edition Vol. 25* on insurance par 375: Thus; 5. *A fair and reasonable construction must be put upon the language of the question which is asked, and the answer given will be similarly construed. This involves close attention to the language used in either case, as the question may be so framed that an unqualified answer amounts to an assertion by the proposer that he has knowledge of the facts and that the knowledge is being imparted. However, provided these canons are observed, accuracy in all matters of substance will suffice and misstatements or omissions in trifling and insubstantial respects will be ignored.* 6. *Carelessness is no excuse, unless the error is so obvious that no one could be regarded as misled. If the proposer puts ‘no’ when he means ‘yes’ it will not avail him to say it was a slip of the pen; the answer is plainly the reverse of the truth.* 7. *An answer which is literally accurate, so far as it extends, will not suffice if it is misleading by reason of what is not stated. It may be quite accurate for the proposer to state that he has made a claim previously on an insurance company, but the answer is untrue if in fact he has made more than one.* 8. *Where the space for an answer is left blank, leaving the question un-answered, the reasonable inference may be that there is nothing to enter as an answer. If in fact there is something to enter as an answer, the insurers are misled in that their reasonable inference is belied. It will then be a matter of construction whether this is a mere non-disclosure, the proposer having made no positive statement at all, or whether in substance he is to be regarded as having asserted that there is in fact nothing to state.* 9. *Where an answer is unsatisfactory, as being on the face of it incomplete or inconsistent the insurers may, as reasonable men, be regarded as put on inquiry, so that if they issue a policy without any further enquiry they are assumed to have waived any further information. However, having regard to the inference mentioned in head (4) above, the mere leaving of a blank space will not normally be regarded as sufficient to put the insurers on inquiry.* 10. *A proposer may find it convenient to bracket together two or more questions and give a composite answer. There is no objection to his doing so, provided the insurers are given adequate and accurate information on all points covered by the questions.* 11. *Any answer given, however accurate and honest at the time it was written down, must be corrected if, up to the time of acceptance of the proposal, any event or circumstance supervenes to make it inaccurate or misleading.* 12. This policy document under consideration was voluntarily entered into between the insured (the Plaintiff to this claim) and the insurer herein the 1st Defendant for compensation touching on a specific risk. There is no dispute that the parties were no competent to contract for a lawful purpose and consideration. The object was lawful to insure the risk which might occur in the future and the terms are unambiguous as premised in the policy of insurance contract. The enforceability of a contract of insurance is triggered by occurrence of a contingency taking place. The nature of the contingency in such contracts include the following characteristics: 13. *Contracts that depend on a specific event happening.* 14. *Contracts that depend on a specific event not happening.* 15. *Contracts that depend on the future actions of a living person.* 16. *Contracts that depend on a specified event happening within a defined timeframe.* 17. *Contracts that depend on a specified event not happening within a defined timeframe.* 18. *Agreements that are contingent on an event that is impossible to occur.* 19. This occurrence of the risk duly insured by the 1st Defendant was duly investigated by the Claims Department following an instruction note issued to one Patrick Owino who later prepared a report referenced as CSL/KAC/432/10/2024 whose contents incorporates the following sub-heads: Background information on the matter, information from the insured, interviews conducted and documents reviewed, Whitestone Engineering Ltd Report, County Government of Uasin Gishu, particulars of the damages to the insured building, parcel number and ownership of the plot whose construction caused damages to the insured building, investigation analysis and conclusions. 20. For purposes of this litigation history and the proceedings held before this Court it is worthy to capture the summary of the investigation report found in pg 8 of the report and corresponding pg 44 of the trial bundle whose content include inter alia in clause 7 & 8 as follows: ***INVESTIGATION ANALYSIS*** *7.1.1. From the facts and evidence explored in the course of our investigations, it is clear that the insured had a five-story building on parcel of land, LR No. Eldoret Block 6/73, which was insured with you, under Fire and Special Perils policy number P/109/04/0440/2007/02/500062 in the year 2023, running from 9/08/2023 to 08/08/2024.* *7.1.2. That the said building, though had been constructed several years back, was of sound structural integrity and was stable till 27th September 2023, when construction operations at the adjacent plot caused damages to the building.* *7.1.3. That the adjacent building to the insured's property, was destroyed sometime in September 2023, to pave way for construction of another modern building on the same plot, which started immediately.* *7.1.4. That the said construction was going on well, till on 27/09/2023, when an impact was felt against the wall of the insured building, on the side of the construction.* *7.1.5. That the impact which, reportedly, resulted from the shovel of an excavator and also the excavation destabilized the building and caused a shift that resulted to cracks on various parts of the building.* *7.1.6. That the insured reported the incident to various authorities concerned and the building was subjected to inspection of its structural integrity.* *7.1.7. That the report confirmed that the building's stability had been compromised and the building was in danger of imminent collapse, due to the effects from the construction activities at the adjacent plot.* *7.1.8. That the building was thus condemned and ordered for demolition after tenants were evacuated within twelve hours.* *7.1.9. That the building was subsequently, demolished and the insured reported the loss to you and filled a claim form to that effect.* *7.1.10. That the insured later engaged advocates in pursuit of the matter, after you declined to admit liability, vide your letter dated 10thDecember 2023.7.1.11. According to the insured's director, the owners of the said plot are of Indian origin but they were not cooperative hence he did not get to know them or to get the LR number of the said plot.* ***8.0. POLICY LIABILITY*** *8.1. At the time of the incident that caused defects on the insured building, which led to its eventual demolition, the subject matter was insured with you, under Fire and Special Perils policy number P/109/04/0440/2007/02/500062. The insured was therefore, duly indemnified against fire and special perils as specified in the policy document.* *8.2. Investigations revealed that the damages to the insured building, were caused by impact against the insured building, from an excavator that was being used at the construction site on the adjacent plot to the insured building, coupled with general tremor from the excavation and other relevant construction activities on the said plot.* *8.3. The said circumstances, fall within the perils covered under the abovementioned policy, which was in force at the time of the incident.* *8.4. We therefore opine that the policy is engaged in this matter.* ***9.0. CONCLUSION*** *In light of the facts established in the course of our investigations, it is evident that the incident occurred as was reported. The damages arose as a result of impact, vibrations and tremor from the vehicles and machinery used in the construction undertaken at the adjacent plot. Though the insured did not obtain details of the machinery used at the site, their impact and effects were confirmed as per the expert report dated28/09/2023, from Whitestone Engineering Ltd, upon conducting the in investigations on the structural integrity of the building after an impact was felt on 27/09/2023. The insured attributed the defects to the impact reportedly, felt on 27/10/2023, from an excavator shovel on site but we opine the effect could have emanated from tremor due to the general excavation process at the site, way back before the stated date and was just aggravated by the said impact. Whereas the insured claimed not to know details of the owner or the LR Number of the said plot, whose construction caused damages to the insured building and resulted to its eventual demolition, we established that the same is owned by a Mr. Kalsi and the new building on the said plot is christened; Kalsi Properties Ltd. We opine that the owner of the said plot is liable for the loss on your insured property hence he should be pursued for compensation, individually or jointly with his contractors.* 1. In our Kenyan legal system expert evidence is governed primarily by Section 45 - 51 of the Evidence Act. It is well settled in our jurisdiction that expert opinions are advisory in which the Court must then correlate the findings of the expert with the rest of the evidence to draw an inference on the matter in question with regard to the facts to be proven by the parties. The principles which guide the Courts in giving weight or implication of the evidence to prove existence or non-existence of facts in issue include the following: * **Not Conclusive:** An expert’s opinion supplements other evidence; it does not replace the Court's role. Courts generally treat expert testimony as advisory and weigh it against lay witness accounts and circumstantial evidence. * **The "Why" Matters:** The weight of expert evidence depends heavily on the reasoning, methodology, and data provided to support the conclusion. Bald assertions or conclusions without a explained basis are frequently dismissed by the Court. * **Impartiality is Mandatory:** An expert witness owes a duty to the Court to be impartial. The moment an expert acts as an advocate for a specific party, the evidential weight of their testimony is significantly reduced. * **Qualifications:** The expert must demonstrate specific specialized knowledge, skills, or training in the particular field in question. Unqualified or self-styled experts will have their evidence disregarded or deemed inadmissible. * **Cross-Examination:** Expert testimony carries little to no weight if it has not been tested through cross-examination by the opposing party to ascertain its validity and reliability. 1. *In estimating the weight, if any, to be attached to a statement rendered admissible by Section 35 of this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts. For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the manner in which uncorroborated evidence is to be treated, a statement rendered admissible by section 35 of this Act shall not be treated as corroboration of evidence given by the maker of the statement.* 2. The role of expert evidence is to assist the Court in understanding complex or technical matters but the ultimate weight given to it depends on the expert’s independence, the factual basis of the opinion and its alignment with other evidence. Therefore, the opinion of an expert in a trial is only as strong as the facts and data upon which it is founded. The Court however draws its credibility and reliability when tested in cross examination. (see the principles in the cases: *Gitau v Gitau & Another (Civil Appeal 1 of 2020) [2025] KECA 1988, The Ikarian Reefer [1993] FSR 563 (English High Court) & Folkes v Chadd (1782) 3 Doug KB 157.* 3. As a general principle I am of the view that single experts should be used wherever the case is concerned with a substantially established area of knowledge and where it is not necessary for the Court to direct the sample a range of other opinions. The Court in *British Airways PLC v Spencer [2015] EWHC 2477* (Ch): Par. 68 the Court held that: *“When considering the relevance and admissibility of an expert’s opinion, the party wanting to adduce the expert evidence must meet the requirements of a three-stage test. First, is the expert evidence reasonably necessary to resolve the issue? Secondly, if not, would the evidence assist the Court? Thirdly, is the evidence (considered on an issue-by-issue basis) reasonably required to resolve the proceedings?* 1. As a trial Judge in this matter on grasping the fundamental elements of the evidence by Patrick Owino, his evidence and opinion is concretized and relatable to the testimonies who testified on behalf of the Plaintiff’s case. This expert evidence backed explicitly by the evidence collected on the ground from various sources is admissible under the provisions of Section 48-51 as construed with Section 107(1), 108 & 109 of the Evidence Act. It is settled law that expert testimony is admissible if it merely supports an inference of conclusion that the Defendant did not have the requisite *mens rea* so long as the expert does not draw the ultimate inference or conclusion for the Judge. What this means I conclude that where the expert gave evidence based upon the study and experience of similarities and in principle expressing his conclusion at the significance of his findings I am of the view that indeed that evidence is admissible within the parameters of the Evidence Act. It appears that the insurer has not been ready and willing to perform its part of the contract and whether it is still ready and willing to perform its part as mentioned in the report and the Plaintiff’s evidence is a matter that must be decided by this Court. I therefore find the evidence by the Investigating Officer cogent, convincing and reliable on the material facts from the issuance of the policy document until when the risk insured occurred at Mountain View Building which subsequently occasioned loss and damage. The burden of proof is fixed at the beginning of the trial by the state of pleadings and it is settled as a question of law. Facts in issue under the Evidence Act is defined as to include any fact from which either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceedings necessary follows, adduced and proved in evidence. 2. Thus, in this case the Plaintiff pleaded to prove and win its case simply by establishing the pleaded case based on the policy of insurance applied for and issued by the 1st Defendant. There are many issues which came up during the trial as between the Defendant and the third party revolving around the issue of excavation of the nearby property and the breach of duty which might have been occasioned by the driver who was controlling and managing that process leading to the excavator shovel accidentally or otherwise to occasion some damage to the pillars of the Plaintiff’s buildings. 3. The trial Court took in evidence of TPW3 (Engineer Benjamin Mumia), upon whose evidence the differential settlement theory principally rests, did not visit the site, did not personally examine the Plaintiff's building, did not test the foundation soil and did not produce any certificates evidencing his professional qualifications. The document produced as his "Differential Settlement Expert Analysis" was, on his own admission, prepared on the basis of photographs and videos taken by others, and the technical content of the document was, again on his own admission, a general theoretical presentation sourced from the internet. Further, TPW3 conceded on cross-examination that an impact can be at a point and can cause compression failure, a concession that is fully consistent with the Plaintiff's case and that all but disposes of the differential settlement theory as the sole cause of the cracks. 4. The theory that the Plaintiff's building collapsed because it carried an additional unauthorized floor is also unsustainable on the evidence. TPW4 (Mr. Jacktone Kiprop) did not produce a documented chain of custody for the building plans he tendered, conceded that records were under the custody of a registrar of records within the County Government framework and was unable to authenticate that the documents he produced represented the complete records held in respect of the Plaintiff's property. Even on the assumption that the building had an additional floor, no witness expert or otherwise satisfactorily explained how a building that had been in use for more than 34 years bearing that load would suddenly, on a single afternoon, develop cracks on the walls, the floors and the pillars. The temporal coincidence, the cracks developing immediately upon the alleged impact, contemporaneously with the loud bangs heard not only by PW1 and PW2 but also by tenants of the building is, on a balance of probabilities, far more consistent with impact than with gradual differential settlement attributable to design defect or extra load. 5. I am also persuaded by the unrebutted evidence of PW1 that the Mountain View Building had no cracks at all prior to 27th September, 2023. PW1 had inspected the building frequently for years in the discharge of his duties as Property Manager. There was no challenge to the credibility of his evidence on this point, and no contrary evidence was tendered. 6. Taking the evidence in its totality, and applying the balance-of-probabilities standard, I find that the Plaintiff has discharged its burden of proof. The cracks on the Mountain View Building that led to its condemnation and demolition were caused by impact from an excavator working on the adjacent property of the Third Party on the afternoon of 27th September, 2023. ***Whether the Defendant is liable to compensate the Plaintiff, and if so, in what sum*** 1. Going by the legal framework governing insurance contracts in Kenya, an insured bears the burden of proving that a loss event is covered by the policy, after which the burden shifts to the insurance company to prove that the claim falls under a specific exclusion clause clearly defined in the policy. The key principles of liability include the following: * **Third-Party Statutory Liability:** Under the *Insurance (Motor Vehicles Third Party Risks) Act (Cap 405)*, an insurer cannot rely on policy violations by the insured to avoid compensating innocent third parties. * **Fundamental Breach:** If the insured flouts specific policy conditions (e.g., a "limitation of use" clause) and this breach is the direct cause of the loss, the Court will likely declare the insurer not liable. * **Burden of Proof:** The insured must prove that a valid policy was in place and that the loss actually occurred; conversely, the insurer bears the burden to prove material non-disclosure, fraud, or policy exclusions 1. Having found that the peril of impact falls within Clause G of the Renewal Schedule, and that the cracks were caused by such impact, the Defendant is liable to indemnify the Plaintiff under the Policy. The repudiation cannot stand. 2. The legal position is settled. Section 156(1) of the Insurance Act provides that no insurer shall assume a risk in Kenya unless and until the premium is received. The premium having been received in this case, and actually paid on renewal only 49 days before the loss, the Defendant assumed the risk. Once the risk is assumed and the insured peril materializes, the insurer must pay. The Court said as much in *CIC General Insurance Co. Ltd v Charles G. Muriithi T/A Busy Angels Investment [2025] KEHC 9698 (KLR),* where it was stated that: *“……….the Appellant’s duty to compensate genuine loss is mandatory hence it has an obligation to ensure that it has a plan B in the event that the insured does not follow its advisory. Section 156 (1) of the Insurance Act, Cap 487 Laws of Kenya provides that; ‘No insurer shall assume a risk in Kenya in respect of insurance business unless and until the premium payable thereon is received by the insurer.’ In our case, there is evidence of premium payment with the consequence that the Appellant had assumed the risk.”* 1. The duty is not discharged by adopting a strained reading of the policy wording. I would add that an insurer who alleges that a loss falls within an exception to the cover bears the burden of proving that allegation. The Defendant has not discharged that burden. 2. I turn to the measure of indemnity. The Plaintiff claims the insured sum of Kshs. 50,000,000/= as compensation for the loss of the building. The Defendant contends for either the reinstatement value of Kshs. 41,991,711.90 pleaded in its Amended Defence, or the depreciated value of Kshs. 24,145,234/= advanced through DW2. I am called upon to determine the measure of indemnity on the evidence before me. 3. The burden of proving the measure of the loss is not borne by the insured alone. Where the insurer disputes the figure advanced by the insured and contends for a lower figure, the insurer must place before the Court evidence sufficient to support its alternative figure. An insurer cannot reduce its liability by mere assertion. 4. In these circumstances I take the following approach. The insured sum of Kshs. 50,000,000/= is the agreed maximum and was the sum on which the Defendant collected premiums on renewal in August 2023. The Defendant's own pleading admits a loss of not less than Kshs. 41,991,711.90, that being the figure at which it puts the cost of reinstatement. There is no evidence on the record supporting a figure below the Defendant's pleaded figure or above the insured sum. In the absence of better evidence from the insurer, who bore the burden of advancing it, I take the insured sum as the indicator of the value of the building at the time of the loss, subject to the deduction required by the principle of indemnity. 5. The Defendant has pleaded, and is entitled to, a deduction for salvage value. The materials of the demolished building, debris, doors, windows and steel, had some residual value, and the principle of indemnity requires that this value be brought into account. The Defendant did not quantify the salvage value in evidence, but I am satisfied that a deduction of Kshs. 1,000,000/= represents a reasonable allowance on a broad assessment, having regard to the age and condition of the materials. I therefore award the Plaintiff the sum of Kshs. 49,000,000/= as compensation for the loss of the building. 6. Turning to the cost of demolition and removal of debris, both the Policy document and the Renewal Schedule contain a Removal of Debris clause extending cover to costs necessarily incurred by the insured in removing debris from, dismantling, demolishing, and shoring up the damaged portions of the insured property. The limit, as revised in the Policy Schedule, is 10% of the insured sum, subject to a 1% excess. The Plaintiff is entitled to recover under this head subject to the policy limit and the excess. I award the Plaintiff the sum of Kshs. 4,800,000/= under this head, that figure being within the policy ceiling. 7. The total sum payable by the Defendant to the Plaintiff is therefore Kshs. 53,800,000/=, made up of Kshs. 49,000,000/= for the loss of the building and Kshs. 4,800,000/= for the cost of demolition and removal of debris. ***Whether the Defendant is entitled to indemnity from the Third Party*** 1. The findings I have made above dispose of the Plaintiff's claim against the Defendant. The Plaintiff is to be indemnified by the Defendant under the Policy. Whether the Defendant is in turn entitled to recover from the Third Party is a separate question, governed by different principles, and answered on different evidence. The Plaintiff's right to indemnity does not depend on the answer. 2. The Defendant's claim against the Third Party is brought under the principle of subrogation. Once the insurer has indemnified the insured against a loss, the insurer is entitled to stand in the shoes of the insured and to enforce, for its own benefit, any right of action the insured had against any third party in respect of that loss. The doctrine prevents the insured from recovering twice and ensures that the ultimate loss falls on the wrongdoer rather than on the insurer who has merely underwritten the risk. 3. The doctrine of subrogation was discussed in **Kibe & 2 others vs. Martin (Civil Appeal E182 of 2021) (2024) KEHC 129961 (KLR)** where the Court held: “***For the doctrine of subrogation to be invoked properly, there are conditions precedent. First, there must be in existence a contract of insurance, risk must have crystallized and there must be actual payments made in order to indemnify the insured.”*** 1. What are the elements to be fulfilled for the doctrine of subrogation to apply? The principles were set out *in Kenya Power & Lighting Company v Julius Wambale & Another (2019) eKLR* where the Court stated as follows; *“The parameters within which the principle of subrogation applies are now well settled. The doctrine applies where there is a contract of insurance and, following crystallization of the risk insured, the insurer had compensated its insured for financial loss occasioned thereby usually by a third party.* *Under this doctrine, the insurer is in law entitled to step into the shoes of the insured and enjoy all the rights, privileges and remedies accruing to the insured including the right to seek indemnity from a third party. The action must however be instituted in the name of the insured with his consent and must relate to the subject of the contract of insurance.”* 1. In law, to subrogate means to ‘put in place of another, with regard to a legal right or a claim’. In other words, one party is substituted for another in respect of an insurance claim, and consequently ‘transfers’ or ‘donates’ their right or entitlement to compensation to the substituting party. In addition the Court of Appeal in *Nkuene Dairy Farmers Co-operative Society Ltd & James Kimathi v Ngacha Ndeiya (2010) eKLR* where the Court stated as follows; *“In our view special damages in a material damage claim need not be shown to have actually been incurred. The claimant is only required to show the extent of the damage and what it would cost to restore the damaged item to as near as possible the condition it was in before the damage complained of.”* 1. In the instant proceedings the Defendant sought leave of the Court to join the Third Party who apparently were the owners of the building which was under excavation by an independent contractor. In that context and text the Defendant was moved with the Court under the doctrine of subrogation as explained by the Court in the case of *Egypt Air Corporation v Suffish International Food Processors (U) Ltd and another (1999)* in which the Court stated as follows: *“The whole basis of subrogation doctrine is founded on a binding and operative contract of indemnity and it derives its life from the original contract of indemnity; and gains its operative force from payment under the contract. The essence of the matter is that subrogation springs not from payment only but from actual payment conjointly with the fact that it is made pursuant to the basic and original contract of indemnity. If there is no contract of indemnity, then there is no juristic scope for the operation of the principle of subrogation.”* 1. The following conditions must be met when an insurer sets to institute recovery under the doctrine of subrogation: 2. There must be an existing contact of insurance between the insurance provider and its insured; 3. The risk which forms basis of the insurance contract must have occurred; 4. The insurer need not have indemnified the insured, although failure to do so may motivate the insured to withhold the consent required in instituting the suit in their name; 5. The suit must be instituted in the insured’s name, except where consent to seek recovery has been expressly given by the insured. 6. In reviewing the evidence before me the Third Party was and is the owner of the property which is adjacent with that of the Plaintiff as mapped out by the survey of Kenya and subsequently registration by the Land Registrar. The owner of the property who is the third party was in need of restructuring of the property in question which necessitated for its demolition. It was towards this end, evidence tells us that a contractor was engaged by the name Balaji who moved in on site with all the necessary machinery to undertake the works of excavation as agreed by the third party. Therefore, in my view, the link on the chain of events can only place the third party at the scene of excavation if the actual works were undertaken by his employees, machinery, agents or servants underpinned in the breadth and width of the works expected to be commenced and accomplished within that agreed scope. What is see emerging from the evidence adduced before this Court is the doctrine of independent contractors which generally absolves the principles of vicarious liability for a contractor’s torts. However, I also bear in mind that in insurance and liability law, apportionment is heavily governed by specific policy inclusions principle of proximate cause and legal subrogation. What comes out very strongly is that under common law an employer or principal is generally not held vicariously liable for the negligence or torts of an independent contractor. This is because the principal lacks control over how the independent contractor performs their work following the compliance with the procedure outlined by the procurement entity. This doctrine is clearly articulated in the following cases: *Board of Governors St. Mary's School v. Boli Festus Andrew Sio [2020] eKLR: The Kenyan Court of Appeal reinforced that an employer is not vicariously liable for the negligence of an independent contractor (in this case, an independent transport service) unless the employer was personally negligent in selecting the contractor or failed to provide a safe system.* *Leighton Contractors Pty Ltd v Fox (2009) 258 ALR 673: The High Court of Australia ruled that a principal contractor does not automatically owe a common law duty to ensure an independent subcontractor's work system is safe, provided the subcontractor is an expert in their field.* 1. In the surrounding circumstances of this case the independent contractor identified as Balaji who was in control of the construction site owed a duty of care by each party within and in the near side of the site to ensure their safety during the execution of the scope of excavation. It is also clear that the construction site in view of the works undertaken would pose a danger and safety concerns to the surrounding buildings. There is no evidence from the independent contractor that he had taken certain obligations to ensure reasonable level of safety for those involved in executing the works particularly those handling the excavator etc. The need for induction training is now a recognized part of the major construction works nuanced by the Health and Safety Regulatory Framework. By the independent contractor failing to adduce evidence that he had taken steps to ensure that the driver of the excavator and other workers on site had undertaken relevant occupational health and safety induction training before being engaged in the excavation works which posed a danger to the Mountain View Building. 2. I think in my view, the facts of this case are in consonant with the dicta in of Lord Esther M. R. in *Heaven v Pender, 1883, 11 Q.B.D 503* in which the Court remarked that *the proposition which this cases suggest and which is therefore to be deduced from them is that wherever one person is by circumstances placed in a such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances would cause danger of injury to the person or the property of the other a duty arises to use ordinary care and skill to avoid such danger.* 3. In the circumstances of this case, the arguments of Counsel for the Plaintiff was that the Defendant had failed to compensate for the risk insured subsequent to the loss and damage occasioned to the Mountain View Building. That there was negligence on the part of the independent contractor in the performance of contract with the owners of the land and it followed that as a matter of law there was a driver, employee or servant who was in control and management of the subject excavator which sustained damage to the pillars of the building in question which damage is traceable to the negligence by the driver, agent, servant, employee of the contractor on site. At present, I contend myself by pointing out that in the general conception of negligence it was the independent contractor on site who hold a duty of care to ensure that other systems and spaces around that excavation site were not exposed to danger. The rule in *Donoghue v Stevenson [1932] UKHL 100* that; *“you are to love your neighbor”, becomes in law, “you must not injure your neighbor”.* And for this case I pose the question, who was the independent contractor’s neighbor? Simply put, the surrounding buildings owned and occupied under Article 40 of the Constitution becomes the direct neighbors whom a duty of care ought to be extended in the event certain construction works have been commissioned. Therefore, one must take reasonable care to avoid acts or omissions which are reasonably foreseeable that they will likely injure the neighbors as it happened in the instant case. The court in *Leavre v Gould 1983, I Q.B 497* at pg 297 says that*, “under certain circumstances one man may owe a duty to another even though there is no contract between them. If one man is near to another or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other* *or may injure his property”.* 1. I think in my view having examined, scrutinized, internalized and appreciated admissibility and truthfulness of the evidence from both sides I take the view that this principle sufficiently outlines the truth of proximity is not to be confined to mere physical proximity but that canon be used as I think it was intended to extend to such clause and direct relations that the act complained of directly affects a person whom the person alleged to be bound to take care would know that any such acts of omission will directly affect him or her by his or her careless acts. That this is the sense in which nearness or proximity applies to the facts of this case. 2. This is what the Courts from the common law jurisdiction continue to emphatically emphasize as can be seen in the case of *Dominion Natural Gas Co. Ltd v Collins & Perkins 1909 A.C 640* in which the Court remarked as follows: *That there maybe however in the case of anyone performing operations of setting up and installing a machine a relationship of duty sets in. What that duty is will vary according to the subject matter of the things involved. It has however, again and again been held that in the case of articles or chattels, vessel like in our case excavators dangerous in themselves such as loaded firearms, poisons, explosives and other things ejusdem generis there is a particular duty to take precaution imposed upon those who send forth or install such articles where it is necessarily the case that other parties will come within their proximity (emphasis is mine).* 1. The cause of action in this matter may be opened against the independent contractor and after he had done everything to the satisfaction of the third party and after all matters between them had been adjusted and all accounts settled on the footing of the contract there is a ripened duty of care which was independently held between the independent contractor and the Plaintiff in this suit. 2. I am of the view from the material evidence before me that where a physical damage is occasioned to a mall or building adjoining a building site during pre-excavation and driving the operations in excavating that site by a contractor or sub-contractor it will be rightly to say that the negligent acts of omission which occasion the economic laws suffered by the Plaintiff arising out of the consequential breach of duty in the system employed damages are recoverable from that sub-contractor or contractor. Essentially, the loss was directly linked to the physical damage to the adjoining building. The economic laws cannot be said to be recoverable by the person who contracted the independent contractor to undertake certain works under the contract. The economic loss suffered by the Plaintiff does flow directly from the damage caused during excavation of the near site. I think in my opinion, flowing from the case law in the entire spectrum of this dispute. 3. I cannot forego to mention the essential legal concept and principles which form the backbone of legal reasoning in negligence cases in determining the exercise of discretion whether a duty of care exists or whether it has been breached: * **Duty of Care:** A legal obligation imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. * **Negligence:** Failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. * **Proximity:** The closeness or directness of the relationship between the defendant's actions and the plaintiff's injury, which is essential for establishing a duty of care. * **Neighbor Principle:** Introduced in this case, it defines who must be considered when determining duty of care – essentially, those who are closely and directly affected by one's actions. 1. The right of action the Defendant seeks to enforce is one in tort, founded on the negligent operation of the excavator on the adjacent construction site. For the Defendant to succeed it must establish two things: first, that the operator of the excavator was negligent and that the negligence caused the impact; and second, that the Third Party is not legally answerable for the sins of negligence committed by the independent contractor. The first is, on the findings I have already made, not seriously in issue that the employees, machinery and other operations of excavation was never under the control and direction of the Third Party. The shovel of an excavator that strikes a neighboring building twice in close succession while maneuvering was being operated negligently but not by the servant, employee or servant of the Third Party. The issue of knowledge, skills and competence of the operator of the excavator and its controls commonly known as the shovels were not skills imparted by the Third Party so that vicarious liability can be invoked for purposes of making findings on liability. The doctrine of *res ipsa loquitur* would in any event apply for an inference that the offending machine being under the management of Balaji as an independent contractor occasioning the accident cannot be said to be a breach of duty of care by the Third Party to hold him liable for loss and damage. 2. The complex question is the second one: whether the Third Party is legally answerable for the negligence of the excavator operator. The Third Party's answer is that the construction works were carried out by Balaji Constructors Limited as an independent contractor, that Balaji was engaged professionally and competently, and that the Third Party as occupier did not control the manner of the works. 3. The Third Party in this case was the landowner. It engaged Balaji to demolish a structure on its plot, to excavate to a depth of 3.1 metres for foundations, and to carry out construction works immediately adjacent to the Plaintiff's occupied five-storey building on the boundary. Excavation of that depth, using heavy machinery, against the boundary of a neighboring building, is precisely the kind of operation from which injurious consequences to the neighbor must be expected to arise unless careful means are taken to prevent them. Generally, the contract of excavation sets out the covenants and obligations to be fulfilled as between independent contractor and the Third Party as the owner of the property or with one who has a beneficial interest in the property. Those terms are voluntarily entered and agreed between the two parties with privity of contract to be performed with completeness. The consequences of damage of the near side building would be described as too remote based on the test of reasonable foreseeability by the Third Party. The Third Party could only be held liable for the type of damage that a reasonable person could have foreseen as a direct and probable result of the negligent acts of omission committed by the independent contractor. There is a presumption in law that the independent contractor is a legal entity or person professionally qualified to undertake such works of excavation and that duty of care rests with legal entity or person involved in executing the contract. If the harm caused was a direct, foreseeable consequence of their failure to exercise reasonable care and professional skill, liability in my view ought to be placed at their doorstep. 4. What the law do envisage in the characteristics of the facts alluded to by the Plaintiff and the Defendant and the notice served upon the Third Party who was obviously liable for the acts of omission which led to the damage of the pillars of the building owned by the Plaintiff. Liability in this kind of cases is personal. However, in certain circumstances a person or a legal entity duly recognized in law may assume responsibility for talks or wrongful acts committed by another person. Hence an employer may be held responsible for the torts of his or her employee. This brings forth the interpretation of the doctrine of vicarious liability in a master-servant relationship. In the nature of this kind of claims a servant is a person employed under a contract of service and acts on the orders of his or her master. The terms of the contract of service is drawn by the master who then controls the manner in which the employee, servant is to execute his or her work. This is contradistinguished on the other hand when one speaks of independent contractor. 5. This dimensional definition constitutes one key characteristic an independent contract is employed under a contract for services and himself or herself determines the manner in which the work is to be performed or done. One other clear distinction is stipulated in the law is that an independent contractor therefore does not act on the orders of his or her employer and is therefore his and her own master with regard to the execution of the work he or she has been contracted to do by the owner of the property or any other such services executable under the clause of an independent contractor. This distinction is fundamental due to the nature of the dispute before this Court. The Third Party had contracted Balaji to undertake excavation of a site neighboring the building owned by the Plaintiff. Essentially, the differentia maximum between a servant and a contractor is important because an employer is liable for the wrongful acts of his or her employees only if the latter is servant or employee. Undoubtedly, in law he or she is not liable where the employee is an independent contractor. Therefore, in the course of performing his or her duty either personally or through a legally recognized entity an independent contractor is personally liable for his or her own wrongful acts in the course of executing the contract as agreed with the person who is to make payments for the services rendered under the contract. 6. It goes without saying that the Third Party was an employer of the independent contractor. There is no evidence that the Third Party was in strict control over the method used by the contractor during excavation works. *(See the principles in Rylands v Fletcher [1866]).* The decision by Lord Denning in the case of *Amrod v Crosville Motor Services Ltd [1963] All ER* contextually settles a doctrine manifested as principal and agent which may have played out in creating a relationship as between the Third Party and the independent contractor. As can be seen shortly in the following extract there are very clear distinctions in these two legal scenarios, thus; *"The owner [of a car] is ... liable the driver is his agent, that is to say, the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes ... The law puts a special responsibility on the owner of a vehicle who allows it out on the road in the charge of someone else no matter whether it is his servant, his friend, or anyone else. If it is being used wholly or partly on the owner's business or for the owner's purposes, then the owner is liable for any negligence on the part of the driver:"* 1. The independent contractor in this matter owed a duty of care to the Plaintiff in the course of excavation to ensure that the excavator shovels are properly manipulated without inflicting damage to the neighboring building owned by the Plaintiff. What comes out strongly from the evidence by the Plaintiff fits in the elements of negligence which is an omission traceable to the driver of the independent contractor*. This omission in law is something that a reasonable man guided upon consideration which ordinarily regulates the conduct of human affairs will do or doing something which a prudent and reasonable man would not do. It means lack of proper care and attention, careless behavior or conduct, a state of mind which is opposed to intention and the breach of a duty and care imposed by common law and statute resulting in damage to the complainant.* *(See Kabo Air Ltd v Mohammed (2014) LPELR-23614 (CA)*. 2. It is the failure by the independent contractor’s servant, driver or employee to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation undertaking the very same works of excavation and being intentional that in those circumstances the adjoining buildings should not be damaged. In my view that failure by the employees of the independent contractor fell below the legal standard established to protect others against unreasonable risk of harm. 3. In the case at bar the independent contractor was the one capable of devising a safe and suitable system of work and further instruct the employees managing and controlling the excavator what to do and supply any implements required for the performance of the ongoing works at the excavation site. It was the independent contractor tasked in law to take care of the entire site to see that the system is complied with and account for the fact that the workmen are always careless for their or safety leave alone the neighbors or adjoining buildings like it happened in this case. This was essentially a breach of duty of care and it is not transferable to the Third Party. 4. It is trite that an independent contractor is a self-employed individual who provides services to a client under contract within the terms negotiated and agreed upon by both parties. Thereafter an independent contractor initiates execution of the works, operating under his or her own business, dictates how the work is to be completed, provides their own tools and are paid per project or hour depending on the terms of the contract agreed upon. 5. In the context of contractual duties and obligations, I opine that the Court heavily relies on recovery for losses that are direct for damages that naturally arise or were within the reasonable contemplation of the parties of the contract. 6. From the above observation, it follows that if indeed Balaji who was contracted by the Third Party to undertake the works of excavation it follows that a professional contractor should command the corpus of knowledge which forms part of professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligence members of his profession including new discoveries and developments in his field of construction which more often calls for excavation of sites to be constructed by the owners of the property. 7. There is no evidence in this suit that the Defendant is seeking to avoid the policy based on material non-disclosure by the Plaintiff. This was a proceeding sometimes being driven outside the four corners of the insurance policy entered between the Plaintiff and the Defendant governed by the policy’s explicit terms by and the risks insured and the likely cause of it. There was even evidence adduced about the additional floor from the representatives of the County Government but it failed totally to explain whether any inspection of the building had been done by the relevant offices, committee or board prior to this accident on excavation to confirm that that additional floor had posed a danger and the current incident was just a trigger to collapse the pillars of the building. There were no standard procedures laid before this Court duly developed by the County Government on inspection and compliance with the building code of the County and at what time did they observe an extra floor on the main international highway and did nothing about it until the occurrence of this damage. 8. This Court takes notice that the Republic of Kenya elsewhere in other cities for a long time there has been no specific standard containing National Construction Authority Act came into being in 2011 whereas the National Building Code was developed in 2024 setting standards on *external/internal layouts of buildings, building elements, building materials and construction, internal and external service system of a building, structural design, safety and special considerations in interiors and exteriors of buildings, quality and wellness in constructed buildings and inspection and demolition of buildings*. 9. The developers went about their investment to build multi-storeyed buildings without observing the building code which later collapsed on the face of the very offices mandated to ensure that each developed building meets the strict standards outlined in National Building Code. However, this is an orbiter to the substratum of the insurance contract between the Plaintiff and the Defendant. The privity of this contract remains binding as voluntarily agreed upon by the Plaintiff and the Defendant and cannot be repudiated by either party if any of the covenants agreed upon have been breached as underpinned in the law. 10. The Court takes judicial notice that there have been flaws on administrative procedures and inadequate enforcement strategies which has faced the construction industry and to bridge the gap the National Construction Authority was established and in 2024 a National Building Code was put in place. The witness who came before this court from the County Government adduced evidence that the Plaintiff put up an additional floor without compliance with the County Building Code. Unfortunately, that code was never shared with the Court or the standard procedures of practice for every developer to comply with in the design, structure and subsequent development of the property. It must be accepted that this is an old building which has been in existence for decades and it is located within the International Highway, Malaba road and no County Government Officials could have hidden their heads in the sand as the Plaintiff put up a multi-storey building to the 5th floor without attention of the enforcement Officers from the City, Town or Municipal Planners. The witness before this Court from the County Government gave no cogent or credible evidence as to which calendar year this issue came to the attention of the office and directorate tasked with the responsibility of securing the integrity of every building within the municipality of City of Eldoret and what steps were undertaken to ensure the Plaintiff’s Mountain View Building complies with the building code as per the law established. It goes without saying that if the building was not interfered with by the excavator carrying out excavation works which soon thereafter became a subject of demolition the so called impugned 5th floor would still be in existence. In my considered view, the witness failed to tell the Court whether the period under review he was the one tasked by the County Government or as the case may be to assess and effect commercial buildings compliance within the Building Code of Kenya under the National Construction Authority or any other such body properly constituted by the Legislature of Kenya. That evidence in my view carried less weight on the scales to rebut and contradict the Plaintiff’s case. 11. It is my considered view that the insurer, the Defendant is liable to indemnify the insured being the Plaintiff strictly within the terms of the policy as negotiated and agreed upon that the clause on risk constituted movement of any motor vehicle or motor vessel and its impact occasions negative consequences to the integrity, structural and other concrete fittings during the lifetime of the policy. The Defendant insurer in rejecting the claim or repudiating it as the evidence shows seems to be placing reliance on mechanical or purely technical grounds. The insured Plaintiff's evidence demonstrates that during the period under review at the lifecycle of the policy he took all reasonable steps to safeguard the building insured from loss or damage and maintained it until the excavation of a nearby property which set in and two major pillars as shown by the photographic impressions were tampered with by the excavator shovel as a consequence of which the structural integrity of the building was at risk. It is on record and in evidence that the building was soon thereafter demolished for the safety and protection of the right to life under Article 26 of the Constitution for any occupants and users of the said building. 12. The Court has outlined several foundational tenets of this suit within the scope of the insurance contract entered into between the Plaintiff and the Defendant. The framers of our Constitution in Articles 10, 27,47,48 and 50 embodies expressions of principles of governance and national values, equality before the law and equal protection of the law, fair administrative action, access to justice and right to a fair hearing. The principles for natural justice embody the right of every person to represent his or her interest to the Court of justice and pronouncing a judgment which adversely affects interest of the party to the proceedings who was not given a chance to represent his or its case is unacceptable under the principles of natural justice. So the question I ask myself is whether at the time the proceedings were closed and this Court retired to consider the issues the independent contractor was given sufficient and proper opportunity to point out on how or his company went about executing the contract entered with the Third Party subsequently resulting in the Plaintiff’s building. This suit as pleaded by the Plaintiff against the Defendant for a declaration to be issued that the terms of the policy be honored by the Defendant constitutes essentially the main claim. The Defendant thereafter issued Third Party notice shifting the burden under the doctrine of subrogation but as I have analyzed above any such shifting of the burden on proof or non-proof of the breach of duty of care during the excavation works falls squarely within the independent contractor hired by the Third Party to undertake the contract with completeness without involvement of the Third Party himself or itself. It is for these reasons based on the general principles of fair trial rights I am unable to make any declarations on the entire process against the independent contractor. 13. For those reasons, sewing the legal threads of evidence together, I am satisfied that the Plaintiff insured has discharged the burden of proof on a balance of probabilities within the guidelines principles under Section 107(1), 108, 109, 112 as read with Section 48-51 of the Evidence Act to enter judgment as against the Defendant as a consequence of which the following orders shall abide: 1. *That the Defendant insurer shall be liable to indemnify the Plaintiff insured within the policy covenants referenced P/109/04/0440/2007/02/S00062 the sum of Kshs. 49,000,000/= as compensation for the loss of the Mountain View Building sitting on Plot No. Eldoret Municipality Block 6/73.* 2. *That the Defendant insurer shall pay the Plaintiff insured a further sum of Kshs. 4,800,000/= under the Removal of Debris clause of the Policy.* 3. *That the Third-Party is not vicariously liable for the breach of duty of care by the independent contractor herein positively identified as Balaji with whom there was a contract of execution of independent excavation works on the adjoining site to the subject matter of this suit being Mountain View Building.* 4. *That the independent contractor’s task involved a non-delegable duty from the Third Party and by the doctrine of control test liability to indemnify the Defendant Insurer is in the realm of remoteness.* 5. *That Interest shall accrue on the sums in (a) and (b) at Court rates from the date of this judgment until payment in full.* 6. *That the Defendant insurer shall pay the Plaintiff insured the costs of the suit.* 14. Orders accordingly. **DATED AND SIGNED AT ELDORET THIS 26TH DAY OF MAY, 2026** ………………………………… **R. NYAKUNDI** **JUDGE**