Ndoria v Xplico Insurance Co. Ltd (Civil Appeal 35 of 2019) [2022] KEHC 11281 (KLR) (Civ) (4 August 2022) (Judgment)
Neutral citation:
[2022] KEHC 11281 (KLR)
Republic of Kenya
Civil Appeal 35 of 2019
CW Meoli, J
August 4, 2022
Between
Wilson Wanjohi Ndoria
Appellant
and
Xplico Insurance Co. Ltd
Respondent
(Being an appeal from the judgment of E. A Nyaloti (Mrs.) (CM) delivered on 15th January 2019 in Nairobi Milimani CMCC No. 576 of 2015)
Judgment
1.This appeal emanates from the judgment delivered on January 15, 2019in Nairobi Milimani CMCC No. 576 of 2015. The suit was commenced by way of a plaint filed on February 10, 2015by Wilson Wanjohi Ndoria the plaintiff in the lower court (hereafter the appellant) against Xplico Insurance Company Ltd, the defendant in the lower court (hereafter the Respondent). The claim was for compensation in respect of the insured motor vehicle registration number KBX 904M which the Appellant alleged to have purchased at Kshs. 1,700,000/- on December 24, 2013, and immediately comprehensively insured it for the said value, with the respondent under policy no. 070/09/006/13/12/010/Comp having paid the requisite premium.
2.The appellant further averred that the December 25, 2013he was carjacked while waiting at his gate at Tasia Estate at about 3.30am and that the robbers beat him up and abandoned him by the Nairobi National Park, and that was admitted at Nairobi Hospital for about seven days. That he reported the incident to the police and was issued with a police abstract and also reported to therespondent, forwarding to them all the requisite documents including a claim form. He averred that the Respondent made several but unfulfilled promises to settle the claim.
3.The respondent filed a statement of defence denying the key averments in the plaint and pleaded breach of contract on the part of the appellant. The suit thereafter proceeded to a full hearing during which the appellant adduced evidence. The trial court found that the appellant had not proved his case against the Respondent and proceeded to dismiss the suit with costs.
4.Aggrieved with the outcome, the appellant preferred this appeal specifically challenging the trial court’s finding, based on the following grounds:-
5.The appeal was canvassed by way of written submissions. Concerning whether the appellant had proved the alleged loss of the vehicle in a robbery, counsel for the Appellant submitted that a police abstract being summary of the occurrence book was produced as an exhibit, without objection by the respondent, corroborating evidence of loss of the appellant’s motor vehicle in the robbery incident. He therefore faulted the trial court for holding that a police officer ought to have been called as a witness to produce the occurrence book extract and pointing out that the Respondent did not call any evidence to controvert the appellant’s evidence on the occurrence of the robbery. Counsel contended that the appellant had proved that his vehicle was insured by therespondent through the production of the log book, certificate of insurance and receipt for the payment of an insurance cover issued by the respondent.
6.Counsel asserted that the question of fitting the appellant’s motor vehicle with a tracking device was not an issue canvassed before the court by the respective parties and that the trial court erred in basing its decision thereon. Counsel asserted that production of a valuation report by a motor valuer was not the only means of proving the value of the appellants motor vehicle, and that the appellant had tendered uncontroverted evidence in the form of a sale agreement which confirmed that he purchased the vehicle at Kshs. 1,700,000/. That therespondent used the said value to determine the premiums payable by theappellant. The court was urged to allow the appeal with costs.
7.The respondent naturally defended the trial court’s findings. Counsel began by anchoring his submissions on the dicta in Selle & another v Associated Motor Boat Co. Ltd & another (1968) E.A 123 concerning the principles to be observed by an appellate court on a first appeal. While placing reliance on the decisions in High Court Civil Case No. 656 of 2002 Francis Njoroge Njonjo v Irene Muroki Kariuki & 7 others, Fredrick Odongo Otieno v Al-Husnain Motors Limited [2020] eKLR and Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR counsel argued that the trial did not err in discounting the police abstract as proof of the robbery in the absence of accompanying evidence concerning the police findings in investigations on the robbery. Counsel stated that the police abstract merely confirms that indeed a report was made by the appellant that he had been robbed of his motor vehicle.
8.Counsel submitted that in an insurance claim, indemnity is about insured value, and the failure by the appellant to produce a copy of the proposal form to ascertain the pre- theft value or the value of the insurable interest, if any, was fatal on his part and that it was not enough to assert that the motor vehicle had been insured at a cost of Kshs 1,700,000/-. It was argued that the burden of proof on a balance of probabilities under section 107, 109 and 112 of the Evidence Act lay with the appellant in this instance. Citing Lion of Kenya Insurance Company Limited v Edwin Kibuba Kihonge [2018] eKLR and UAP Insurance Company Limited v Canadian Baptist International [2019] eKLR counsel submitted that the appellant was not the registered owner of the subject motor vehicle at the time of alleged theft; that no connection had been shown between the appellant, the registered owner and the vendor thereof and hence the appellant had not demonstrated that he had an insurable interest in the motor vehicle.
9.Counsel submitted that the Appellant’s omission to produce the proposal form for the vehicle’s insurance cover meant that his alleged insurable interest was not proved; and moreover that , the insurance cover that was obtained from Respondent through material non-disclosure of vital information in breach of the principle of utmost goof faith. Lastly, counsel relied on the decisions in Habib Zurich Finance (K) Limited v Muthoga & another [2002] 1 EA 81 and Total (K) Limited formally Caltex Oil (K) Limited v Janevams Limited [2015] eKLR to argue that the appellant’s suit comprised a liquidated claim that ought to be specifically proved. The court was urged to dismiss the appeal.
10.This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle –vs- Associated Motor Boat Co. [1968] EA 123 in the following terms: -
11.An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See Ephantus Mwangi & another vs Duncan Mwangi Wambugu [1982 – 1988] IKAR 278).
12.The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. In the court’s view, the appeal turns on the single question whether the Appellant had proved his case to the required standard. Pertinent to the determination of issue are the pleadings, which form the basis of the parties’ respective cases before the trial court. A review thereof is useful before delving into evidentiary matters.
13.In the now famous case of Wareham t/a A.F. Wareham & 2 others Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that: -
14.Theappellant by his plaint averred at paragraphs 3,4,5,6 and 7 that:
15.The respondent filed a statement of defence denying the averments and particulars pleaded in the plaint and in addition pleaded that the appellant was in breach of contract by stating at paragraphs 8, 9 and 10 that:
16.The appellant contended that by virtue of the comprehensive cover issued by the respondent pursuant to the Policy No. 070/09/006/13/12/010/Comp he was entitled to compensation for the loss of his vehicle as a result of the carjacking incident on December 25, 2013. The respondent on its part refuted the averment and asserted that the appellant did not have an insurable interest and or was in breach of the policy, if any. During the hearing of the suit the appellant testifying as PW 1 adopted his witness statement as his evidence in chief and produced several documentary exhibits. He asserted that the value of his lost motor vehicle was Kshs. 1,700,000/- which sum he claimed as compensation.
17.The respondent did not call any witness in support of its case and or averments in its statement of defence. In its judgment the trial court stated inter alia that :
18.The applicable law as to the burden of proof is found insection 107, 108 and 109 of the Evidence Act. The duty of proving averments contained in the plaint lay squarely on the Appellant. In Karugi & another v Kabiya & 3 others [1987] KLR 347 the Court of Appeal stated that:
19.The appellant’s grievance was based on a contract of insurance being Policy No. 070/09/006/13/12/010/Comp, and that the respondent had failed to fulfill its end of the bargain in that regard. The appellant’s contention was that the respondent was obligated to indemnify him for loss of his motor vehicle KBX 904M lost in the carjacking incident. The Court of Appeal in Kenindia Assurance Co. Ltd v Monica Moraa [2016] eKLR describing the nature of a policy of insurance cited with approval the decision of the Supreme Court of India in United India Insurance Company vs. Kantika Colour Lab and others Civil Appeal No. 6337 of 2001 where that court stated as follows:-
20.This court agrees with the finding of the trial court that the appellant’s evidence was neither challenged nor controverted at the trial. However, for the Appellant’s cause to succeed on a balance of probabilities the Appellant ought to have demonstrated the existence of a contract of insurance, accruing rights thereunder and in reference to accruing rights, proof of actual loss of motor vehicle KBX 904M. Thus, the policy of insurance, is the document creating the legal relationship between the respective parties and upon which the claim of breach of contract or indemnity is founded. The policy document sets out rights and obligations of the respective parties.
21.The appellant did not produce the policy document at the trial. Section 2 of the Insurance Act describes ‘Policy’ as:-
22.Section 7 of the Insurance (Motor Vehicles Third Party Risks) Act describes a ‘Certificate of Insurance’ as:
23.The certificate of insurance derives its existence and force from the policy of insurance and in the absence of the latter, no binding legal relationship can be asserted. All that the Appellant produced at the trial was a receipt from Xplico Insurance Co. Ltd (P.Exh. 2) and Certificate of Insurance (P. Exh. 3) as proof of the contract of insurance between the respective parties. However, none of these documents contains the contract terms, the respective rights, and obligations of the parties, and more importantly, the Respondent’s obligations towards the Appellant as sought to be enforced by the suit. Thus, it was impossible to tell what accruing rights the appellant was entitled to under the alleged policy of insurance concerning the alleged loss of his motor vehicle. On a balance of probabilities, there was no proof that the respondent was under an obligation to compensate the Appellant for the loss of his vehicle and that there was breach of the contract terms by the respondent. The appellant’s failure to produce the policy of insurance was fatal to his case, and it is not available to him to blame the respondent for this lapse as he could have but did not serve a notice to produce upon the respondent, in that regard.
24.Secondly, the appellant failed to demonstrate that he had, and the value of any insurable interest in the alleged lost vehicle at the time he took out the alleged insurance policy. The logbook in respect of the vehicle shows that the vehicle was registered in the appellant’s name on 17.01.2014, nearly a month since the policy of insurance was paid for. The appellant did produce an agreement of sale between the appellant and a company known as Alpha Automobile Ltd dated 24.12.2013 purporting the sale of the vehicle to the Appellant for the sum of Shs.1,700,000/-. However, neither a witness from the said company nor the alleged owner of the vehicle (one Dabaso Bonaya Adano) were called to testify on the transaction. Neither did the Appellant tender evidence of the payment of the consideration in the agreement for the purchase of the vehicle. These matters were averred in the plaint and disputed in the respondent’s defence statement, and it was upon the Appellant to prove his averments, notwithstanding the respondent’s decision not to call any evidence at the trial.
25.In addition, the appellant’s claims that he lost the vehicle to robbers on the night of the date when he took out the insurance policy were disputed and required firm proof. The mere tendering of a police abstract, (and not a copy of the Occurrence Book entry), and his own oral evidence did not suffice. The court agrees with the trial court that the evidence of the officer who investigated the case or other appropriate police witness or other witness after the fact of the alleged robbery, such as the person who allegedly rescued the Appellant at his alleged place of abandonment by the robbers would have corroborated the appellant’s account. The fact that the appellant was treated at the Nairobi Hospital in the period after the alleged robbery does not by itself prove the occurrence of such robbery and loss of the vehicle.
26.Thus, in the court’s view, the trial court cannot be faulted for finding as it did, that the appellant had failed to prove his case on all fronts. The appellant did not discharge the burden of proof and his suit was properly dismissed. Consequently, the appeal is without merit and is equally dismissed with costs to the respondent.
DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 4TH DAY OF AUGUST 2022.C.MEOLIJUDGE In the presence of:For the Appellant: Mr. MuindeFor the Respondent: Ms. Winrose h/b for Mr. KinyanjuiC/A: Carol