Maghema & another v The Heritage Insurance Company Ltd (Civil Appeal E093 of 2023) [2026] KECA 1574 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an insurer can refuse to pay when a motorcycle insured for one use carries passengers instead.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent acted within the terms of the insurance policy in avoiding liability
Key legal issues
#Scope of second appellate jurisdiction under Section 72(1) of the Civil Procedure Act
The Court is confined to matters of law; grounds raised for the first time on second appeal cannot be considered absent exceptional circumstances.
Section 72(1) confines a second appeal to matters of law. The Court relied on a long line of authority (Leting, Muriithi, Kenya Breweries) that it must accept concurrent findings of fact unless no reasonable tribunal could have reached them or the decision is perverse. The appellants' grounds on scrutiny of the policy document and burden of proof were raised for the first time before this Court and, applying Alwi A Saggaf, Kenya Commercial Bank v Osebe and Kenya Hotels, could not be entertained save exceptionally.
Whether the insurer was entitled to avoid liability for the deceased pillion passenger
Yes. The policy excluded carriage of passengers for hire or reward, and the insured's use of the motorcycle outside the insured purposes entitled the insurer to avoid the risk.
The policy, taken out by the registered owner through Bemca Insurance Agencies, was valid at the date of the accident and covered third-party risks, but was subject to Clause MC001 excluding carriage of passengers for hire or reward. The deceased was described by the appellants themselves as a 'pillion passenger'. The insured failed to disclose that the motorcycle would be used to carry passengers, contrary to the doctrine of utmost good faith, and the insurer discharged its burden on a balance of probabilities.
Legal principles established
#- On a second appeal the Court of Appeal confines itself to matters of law only and will not disturb concurrent findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- A point of law raised for the first time on second appeal will not be entertained save in exceptional circumstances, and the discretion to admit a new point must be exercised sparingly.
- An insurer's duty to satisfy a judgment under Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act arises only where the liability is covered by the policy; liability for uses excluded by the policy need not be honoured.
- Insurance contracts are governed by the doctrine of utmost good faith, imposing on the insured a legal obligation to disclose all material facts affecting the risk insured against; failure to disclose such facts prejudices third-party claimants.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCCA No. 250 of 2019
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal on matters of law only)
Relief refused
#Setting aside the High Court judgment of 9th June 2022 and substituting an order allowing the appeal with costs
The Court held that the respondent sufficiently demonstrated entitlement to avoid liability under the policy exclusions, and the new grounds raised for the first time on second appeal could not be entertained
Costs
The appeal is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, we arrive at the inescapable conclusion that the appeal lacks merit and is hereby dismissed with costs to the respondent. It is so ordered.
This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
They are being raised for the first time before this Court, which Court cannot consider matters of law that are being raised before it for the first time unless in exceptional circumstances.
The duty of an insurer is to satisfy a judgement pursuant to Section 10(1) of the Act only if the liability is covered by the insurance policy.
The insured, Maclex Makori Magabi did not disclose to the respondent that one of the purposes of taking out the insurance cover on the motor cycle was to cover the carriage of passengers.
Issues in the judgment
#Internal inconsistency in the description of the policy: the pleading describes Policy No. MPIIMC0382/TPO issued 12th August 2011 running to 5th July 2012, while the Court's own analysis records a third-party policy taken out through Bemca Insurance Agencies running from 6th July 2011 to 5th July 2012; the judgment does not reconcile these.
Inconsistent gender references to the deceased, described as male ('Bonface Mwakio Kaluvu, the deceased') but later referred to as 'she'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maghema & another v The Heritage Insurance Company Ltd (Civil Appeal E093 of 2023) [2026] KECA 1574 (KLR)", Case Analysis (2026). Court of Appeal at Mombasa, appeal against the judgment in HCCA No. 250 of 2019 (arising from CMCC No. 816 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1574/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.