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ELRCDismissedCivil Suit arising from plaint dated 9th August 2023 (Nyeri ELRC Misc. Appl. No. E001 of 2023 referenced)

Arcon Works Limited v CIC General Insurance Limited; Waitiki (Interested Party) (Cause E042 of 2024) [2025] KEELRC 1885 (KLR)

Employment and Labour Relations Court of Kenya
26 June 2025
OMOnesmus N Makau
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to make an insurer pay a workplace injury claim because the employer reported the accident two years late, so the employer must pay it.

What this practically means

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Executive summary

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The claimant, an insured under a Work Injury Benefits Act (WIBA) policy, sued the respondent insurer seeking a declaration that the insurer was bound to settle a judgment and decree of Kshs.472,356.84 entered against it in Nyeri ELRC Misc. Appl. No. E001 of 2023 at the instance of an interested party injured at the claimant's NHC site in Nyeri on 17th October 2018, together with auctioneer fees, general damages, interest and costs. The respondent denied liability, contending the claimant breached clause 5 of the policy by failing to notify it of the accident in writing within 7 days. Both parties testified; the claimant's General Manager admitted written notice was given by email only in October 2020, two years after the accident, and that failure to notify constitutes breach. The court framed two issues: breach of the insurance contract and whether the reliefs were merited. Applying clause 2, which makes due observance of the policy terms a condition precedent to liability, the court held the claimant breached the contract and failed to prove on a balance of probability that the respondent was liable to settle the decree. The suit was dismissed in its entirety. In a notable exercise of discretion, the court declined to condemn the claimant to pay costs, considering it had paid premiums in full and must still settle the interested party's claim. Judgment was delivered via Teams video conferencing with the parties' consent, waiving compliance with Rule 28(3) of the ELRC Procedure Rules.

Questions the Court framed

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

  1. 1.Whether the claimant breached the contract of insurance.
  2. 2.Whether the reliefs sought are merited.

Key legal issues

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01

Whether the claimant breached clause 5 of the WIBA insurance policy by failing to notify the respondent of the accident within 7 days

Holding

Yes - the claimant breached the contract of insurance; written notification by email was only sent in October 2020, two years after the 17th October 2018 accident

Reasoning

Clauses 5 and 3 of the policy required immediate written notice, and in any event not later than 7 days, of any occurrence giving rise to a claim. Clause 2 made due observance of the policy terms a condition precedent to liability. CW1 admitted written notice came after the 7-day lapse and that failure to notify amounts to breach. The phone call alleged by CW1 was unproven and did not satisfy the written-notification requirement.

p. 3
02

Whether the reliefs sought (compelling the insurer to settle the ELRC decree, auctioneer fees, general damages, interest, costs) are merited

Holding

No - the suit was dismissed in its entirety

Reasoning

Having found breach of the condition precedent, the claimant failed to prove on a balance of probability that the respondent was liable under the policy to settle the decree. The court nonetheless declined to award costs against the claimant because it had paid premiums and must still settle the interested party's claim.

p. 4

Legal principles established

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  • Due observance and fulfilment of the terms of an insurance policy, including timely notification of accidents, is a condition precedent to the insurer's liability to make any payment
  • An insured who fails to notify the insurer of an accident within the contractual 7-day period breaches the contract of insurance and cannot enforce indemnity

Court orders

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  1. 1.The suit is dismissed for lack of merit
  2. 2.The claimant is not condemned to pay costs of the suit; each side bears its own

The bench

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

OM
majority

Wrote the judgment

Jurisdiction invoked
Original civil suit by plaint under the Work Injury Benefits Act insurance policy; judgment delivered per Rule 28(3) of the ELRC Procedure Rules

Relief refused

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Declaration that the respondent is bound to settle the judgment and decree of 23rd May 2023 and 3rd August 2023 in Nyeri ELRC Misc. Appl. No. E001 of 2023

Claimant breached clause 5 of the policy by failing to notify the insurer in writing within 7 days of the accident

p. 4

Auctioneer fees

Suit dismissed; liability under the policy not established

p. 4

General damages with interest

Suit dismissed; breach of the condition precedent defeated the claim

p. 3

Costs

No costs awarded against the claimant; considering that it paid premium and must still settle the interested party's claim, the court declined to condemn it to pay costs of the suit (each party effectively bearing its own costs).

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.

Consequently, I find and hold that the claimant breached the contract of insurance contained in the WIBA policy No. 017/113/1/004352/2018/03.
p. 4Breach of insurance contract - failure to notify
The due observance and fulfilment of the Terms of this Policy in so far as they relate to anything to be done or not to be done by the insured and the truth of the statements and answers in the proposal shall be a condition precedent to any liability of the Company to make any payment under this policy.
p. 3Condition precedent clause in insurance policy
In the end, I find no merits in the suit and dismiss it. However, I do not condemn the claimant to pay costs of the suit considering that it paid premium to the respondent and it will still now settle the claim by the Interested Party.
p. 4Final orders - dismissal and costs

Issues in the judgment

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minor

Judgment states the suit was filed in the High Court, but it was signed and delivered under the ELRC Procedure Rules, suggesting the Employment and Labour Relations Court as the forum

minor

Case number of this suit is not stated in the judgment; only the referenced Nyeri ELRC Misc. Application No. E001 of 2023 and Nyeri HCCC No. E010 of 2023 appear

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Arcon Works Limited v CIC General Insurance Limited; Waitiki (Interested Party) (Cause E042 of 2024) [2025] KEELRC 1885 (KLR)", Case Analysis (2025). Civil Suit arising from plaint dated 9th August 2023 (Nyeri ELRC Misc. Appl. No. E001 of 2023 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1885/eng@2025-06-26

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