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Court of AppealPartially AllowedCivil Appeal No. 50 of 2013

Kenindia Assurance Co. Ltd v Monica Moraa [2016] KECA 687 (KLR)

Court of Appeal
4 March 2016
3,670 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal ruled that burglary insurance pays only proven losses, not automatically the full insured amount.

What this practically means

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Executive summary

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This Court of Appeal at Kisumu appeal concerned a burglary insurance claim. The respondent, Monica Moraa, sued Kenindia Assurance Co. Ltd after her insured premises on plot 274 Sare-Awendo were broken into on the night of 23rd/24th December 1997 and stock stolen. The High Court (Musinga, J.) found the burglary proved but no proof that the stolen goods were worth the pleaded Kshs. 12,450,000.00, yet entered judgment for the full insured amount of Kshs. 8,000,000.00, holding the insurer liable under the policy. The insurer appealed only against that award, contending the insured had to prove actual loss. The Court of Appeal held that the appeal was competent, the respondent's late objection to competence being barred by Rules 84 and 104(b) of the Court of Appeal Rules. On the merits, the court construed the policy: the insurer's obligation was to make good the loss 'to the extent of the intrinsic value of the property so lost', capped at the sum insured. Applying the principle of indemnity, and endorsing the reasoning in Madison Insurance Co Ltd v Solomon Kinara and the Supreme Court of India's decision in United India Insurance Company v Kantika Colour Lab, the court held that the insured must prove the extent of loss; liability for the full sum insured does not arise automatically on occurrence of the insured event. Re-evaluating the evidence as a first appellate court, it found no credible proof of the extent of the loss, the stock booklet (exhibit 9) being uncorroborated by bank statements. The appeal was allowed, the High Court judgment was set aside, and, because theft during the currency of the policy was established, each party was ordered to bear its own costs of the appeal and the proceedings below.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal was incompetent on account of the notice of appeal, the objection having been raised late
  2. 2.Whether, under the terms of the burglary insurance policy, the respondent was under a duty to prove the loss of the amount claimed
  3. 3.Whether the respondent proved loss of Kshs. 8,000,000.00 awarded by the trial court

Key legal issues

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01

Whether the insured must prove actual loss under a burglary insurance policy or whether liability to the sum insured arises automatically on occurrence of the insured risk

Holding

The insurer's liability is limited to the actual loss proved; the policy required payment of the loss 'to the extent of the intrinsic value of the property so lost' and the sum insured is a cap, not a guaranteed payment.

Reasoning

The court construed the policy terms and held that once a loss is established to have occurred, the insured must go further and establish its extent. The principle of indemnity forbids the insured profiting from a loss; the stipulated sum is the outer limit of liability, not a guaranteed payment. The trial court erred in holding the insurer liable for the full insured amount without proof of loss.

p. 4
02

Whether the respondent proved loss of Kshs. 8,000,000.00 on the evidence

Holding

No. The stock booklet (exhibit 9) was unsupported by independent evidence such as bank statements, and there was no credible evidence of the extent of the loss.

Reasoning

This being a first appeal, the court re-evaluated the evidence and drew its own conclusions. Although evidence showed large purchases and high turnover, it did not establish stock levels at the time of the burglary. Bank statements would have authenticated exhibit 9; their absence left no credible proof of the extent of loss.

p. 6
03

Timeliness of the objection to the competence of the appeal

Holding

The objection, raised for the first time at the hearing, could not be entertained without leave under Rule 104(b) of the Court of Appeal Rules.

Reasoning

Rule 84 requires objections to competence to be raised within thirty days of service of the notice of appeal or record of appeal, to prevent parties withholding a 'secret weapon'. The appellant had no opportunity to respond, so the court declined to dispose of the appeal on a ground not canvassed by both parties.

p. 3

Legal principles established

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  • Under a burglary/indemnity insurance policy, the insured must prove the actual loss sustained; the happening of the insured event does not, by itself, entitle the insured to the full sum insured.
  • An objection to the competence of an appeal must be raised at the earliest opportunity, within thirty days under Rule 84, and a respondent cannot raise it at the hearing without leave under Rule 104(b).

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the High Court dated 23rd September 2011 and delivered on 30th September 2011 in Kisii High Court Civil Case No. 43 of 1999 set aside
  3. 3.Each party to bear its own costs of the appeal and of the proceedings in the High Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
H.C.C.C No. 43 of 1999
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and the Court of Appeal Rules (appellate jurisdiction over High Court civil appeals)

Relief refused

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Respondent's invitation to have the appeal struck down as incompetent

The objection to competence was raised too late and without the leave of the Court, contrary to Rule 104(b)

p. 3

Payment of the Kshs. 8,000,000.00 award to the respondent

The respondent did not prove the actual loss sustained; liability under the policy does not arise automatically on the happening of the insured event

p. 6

Costs

Each party to bear its own costs of the appeal and of the proceedings in the High Court

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For those reasons, we allow the appeal and set aside the judgment of the High Court dated 23 rd September 2011 and delivered on 30th September 2011 in Kisii High Court Civil Case No.43 of 1999.
p. 6Final orders - appeal allowed and High Court judgment set aside
we think that those circumstances dictate that each party should bear its own costs of the appeal and of the proceedings in the High Court.
p. 6Costs order
the appellant’s liability to the respondent is limited to the actual loss that the respondent could in fact prove; that the happening of the burglary did not, in itself, entitle the respondent to the payment of the amount of Kshs. 8,000,000.00 stipulated in the schedule to the policy
p. 6Principle of indemnity in insurance contracts
Once the respondent established that she lost property that was insured in circumstances giving rise to a claim under the policy, (and it is not in issue that she did that), her obligation did not end there. She had to go a step further and establish the extent of such loss.
p. 4Burden of proving extent of loss on the insured

Issues in the judgment

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minor

Internal inconsistency in the date of the High Court judgment: the header states it was 'dated 23rd September, 2011' while the opening paragraph says it was 'delivered on 30th September 2011'; the same discrepancy appears in the final orders

minor

Apparent typographical omission in the pleaded loss figure in paragraph 31 ('Kshs. 12,') where Kshs. 12,450,000.00 is elsewhere stated

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenindia Assurance Co. Ltd v Monica Moraa [2016] KECA 687 (KLR)", Case Analysis (2016). Civil Appeal No. 50 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/687/eng@2016-03-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.