(Being an appeal from the judgment and decree of Hon. C. C. Kipkorir - Principal Magistrate delivered in Kerugoya Magistrates Court Civil Case No. E035 of 2022 on 15/2/2023)
Background
1. This appeal arises from a suit by the appellant Patrick Ngatia Kariuki against the respondent Pacis Insurance Company Limited in the trial court in a plaint dated 12/4/2022. The appellant’s claim in the suit was for a declaration that the respondent was obliged and liable to satisfy the repair costs of KShs 176,500/= incurred by the appellant towards the repair of his motor vehicle registration number KCR 960 D which was damaged on 24/12/2019 by a gang of robbers as he was driving the same at Kibingo area and which was insured by the respondent through a comprehensive insurance policy number C/090/0070/132194/2019.
2. In a judgment dated 15/2/2023 the trial court dismissed the suit finding that the appellant had not proved his claim because he had not provided the insurance policy document, the basis of his contractual arrangement with the respondent.
Grounds of appeal
3. The appellant was aggrieved by the judgment and now appeals against that decision in his memorandum dated 14/3/2023 raising the following grounds:
a. the learned trial magistrate erred in law and in fact in failing to consider adequately or at all the totality of the evidence that was tendered and in so doing, she arrived at an erroneous finding.
b. the learned trial magistrate erred in law and in fact in manner that she shifted the burden of proof of breach of the insurance policy from the respondent to the appellant.
c. the learned trial magistrate erred in law and in fact in dismissing the appellant’s case on the basis that the insurance policy document was not made available whereas the respondent admitted that they had insured the appellant’s motor vehicle.
d. the learned trial magistrate erred in law and in fact in formulating issues that were not raised in the parties pleadings or evidence.
e. the learned trial magistrate erred in law and in fact in failing to consider the appellant’s submissions and in so doing she arrived at an erroneous decision.
4. The appellant thus prays that the appeal be allowed, the judgment of the trial court be set aside and this court proceeds to declare that the respondent was liable to satisfy the repair costs of KShs 176,500/= (although it is written as 176, 50/=) which I find to be a typographical error.
Submissions
5. The appeal was disposed of by way of written submissions which were filed by learned counsels for both parties.
6. The submissions by both parties are considered in the analysis following.
Duty of appellate court
7. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 where it was held as follows:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Case before the trial court
8. The case before the trial court from the pleadings and evidence before court was that the respondent was the insurer of the appellant’s motor vehicle registration number KCR 960D. It was the appellant’s case that he was driving the said vehicle on 24/12/2019 when he was accosted by a gang of robbers at Kibingo area. The robbers blocked his way and forced him to stop the vehicle. In the process to force the appellant out of the vehicle, the robbers extensively damaged the vehicle.
9. The appellant managed to escape from the scene unhurt and report the incident at Kerugoya police station. The incident was recorded in the police Occurrence Book whereupon he was issued with a police abstract.
10. The appellant subsequently had the damage repaired at his own cost of KShs 176,500/= and then sought reimbursement of the money from his insurer the respondent by completing the requisite claim forms.
11. The respondent commissioned investigations into the claim which were conducted by Alex Muteti DW 2, of Urban Loss Assurance (K) Ltd who returned a verdict that in fact the appellant was not driving nor was he in the vehicle at the material time but that the vehicle was being driven by one John Ngari. According to the DW 2, the said John Ngari was not an authorized driver of the vehicle and the appellant had provided false information in his claim form that he was the driver of the vehicle at the material time. The respondent averred that the appellant made a misrepresentation and failed to make full disclosure of material facts. That a contract of insurance is a contract of utmost good faith (uberrimae fidei) and the appellant was under obligation to be truthful and disclose all material facts of the circumstances surrounding the damage to his vehicle. In the circumstances the respondent was entitled to repudiate the contract and not honour its obligation to pay for the damage to the vehicle.
12. Consequently, the respondent declined to settle the claim thereby causing the appellant to file suit.
13. The appellant testified in the case as PW 1 and called one witness PW 2, PC Isaiah Mutwiri of Kerugoya police station who gave evidence that the incident was reported at the police station and the appellant issued with police abstract which showed that the appellant was the driver of the vehicle at the time of the incident.
14. The respondent gave evidence through its Legal Officer, DW 1, Anne Kinyua and the investigator, DW 2, Alex Muteti.
15. Upon considering the evidence and submissions of parties, the learned trial magistrate dismissed the suit finding that the appellant had not proved his claim because he had not provided the insurance policy document, the basis of his contractual arrangement with the respondent.
Analysis
16. I have considered the grounds of appeal, the submissions by learned counsels for the parties and reviewed and reexamined the case before the trial court including the pleadings, the evidence and the judgment. The issue for determination is whether or not the learned trial magistrate was correct in her finding that the appellant had not proved his case and thus dismissing it.
17. The evidence before the trial court was that the respondent was the insurer of the appellant’s motor vehicle and that the vehicle was damaged in an incident of robbery on the night of 24/12/2019. It was also not in contention that the incident had been reported to the police and the appellant had repaired the damage at his own cost.
18. Learned counsel for the appellant submits that the appellant discharged the burden of proof by establishing that his vehicle was damaged while he was driving it, he had comprehensively insured it with the respondent and that the respondent was liable to pay for the damage.
19. Learned counsel for the respondent submits that the appellant had failed to discharge the burden of proof in the trial court. That he was not able to demonstrate the respondent acted maliciously by refusing to pay the special damages of KShs 176,500/= and that there were no particulars of malice against the respondent. I have not seen any claim by the appellant against the respondent based on malice though. The appellant’s claim in the plaint was that the respondent had failed to refund the repair costs of KShs 176,500/=.
20. Both learned counsels cited and quoted the provisions on who bears the burden of proof in a case as provided under sections 107 and 109 of the Evidence Act (Cap. 80) Laws of Kenya.
21. The learned trial magistrate properly directed herself on the issue of the legal burden of proof of the claim falling upon the appellant but failed to direct herself correctly on the evidential burden of proof that was cast on the respondent as will be demonstrated shortly. She relied on the case of Rentco East Africa Limited v Dominic Mutua Ngonzi [2021] KEHC 1079 (KLR) in which Odunga, J. (as he then was) extensively discussed sections 107, 108, 109 and 112 of the Evidence Act (Cap. 80) Laws of Kenya on the legal burden of proof and the evidential burden of proof. In that case, the case of Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015] KEHC 8440 (KLR) was cited in which these provisions of the law were explained thus:
“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:
107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
Furthermore, the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act as follows:
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
22. This court is well aware that it should not lightly defer with the findings of the trial court where the same are based on an assessment of the facts before it. I am guided by the case of Makube v Nyamiro [1983] KLR 403, where the court stated that;
“… a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”
23. And in Kiruga v Kiruga & Another [1988] eKLR the court reiterated the principles above. Apaloo JA stating thus at pp 22:
“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. In the oft-cited case of Peters vs. Sunday Post [1958] EA 424, this Court accepted the principle laid down by the House of Lords in Watt vs. Thomas [1947] 1 All ER 582”.
24. In the case of Watt v Thomas referred to above the principles to be applied by an appellate court when required to review a trial court’s findings of fact are discernible from the opinions of their Lordships as below. In general terms, Viscount Simon said:
“… an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached on that evidence should stand, but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide, but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.”
25. On his part, Lord Thankerton expressing his opinion in cases where the appellate court is disposed to differ from the trial court’s findings had this to say at page 587:
“I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus:
I. Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion.
II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.
III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court…
It may be well to quote the passage from the opinion of Lord Shaw in Clarke v. Edinburgh & District Tramways Co., (15) (1919 S.C. (H.L.), 35, 37] which was quoted with approval by Lord Sankey, L.C., in Powell v. Streatham Manor Nursing Home (1) ([1935] A. C. 250). Lord Shaw said:
In my opinion, the duty of an appellate court in those circumstances is for each judge to put it to himself, as I now do in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.”
26. I am well guided by the principles enunciated in the cases above. The issue is whether or not the learned trial magistrate was correct in her determination of the fact that the failure to produce the policy of insurance for the vehicle in court meant that the appellant had failed to prove his case.
27. It is true that indeed, the policy of insurance was not produced in evidence by either the appellant or the respondent. However, there was no dispute that at the time of the accident, the vehicle was properly comprehensively insured by the respondent meaning there was a valid policy of insurance in force. The same was not contested.
28. Learned counsel for the appellant submits that the dispute between the appellant and the respondent was whether the appellant was the one driving the motor vehicle at the time of the accident as per the appellant's evidence or whether it was being driven by John Ngari as per the respondent’s evidence. He submits further that the respondent’s witness testified that even if the motor vehicle was being driven by a third party at the time of the incident, that was not a basis to repudiate the claim.
29. Learned counsel for the respondent on his part submits that the respondent has a right to avoid the insurance policy due to non-disclosure of material facts. He submits further that the respondent cannot be compelled to satisfy the repair costs done in utmost secrecy following a breach of good faith occasioned by a misrepresentation of material facts on the insured driver and the circumstances surrounding the incident.
30. Learned counsel for the respondent has in his aid cited the cases of Kenya Orient Insurance Limited v Kelvin Macharia Karanja [2017] KEHC 5202 (KLR) and the Indian case of United India Insurance Co. Ltd vs M.K.J. Corporation 1996 (6) SCC 428 on the fundamental principal of insurance law that utmost good faith must be observed by the contracting parties.
31. It is apparent from the evidence on record that the issue that caused the respondent to allege repudiation of the contract of insurance was that the appellant provided wrong information in the claim form, while claiming for compensation, that he was the driver of the vehicle at the time of the incident. It was upon this that the DW 2 speculated that the alleged driver John Ngari may not have been authorized to drive the vehicle. But the issue was not even that the person was not authorized. It was the information in the claim form that the appellant was the one driving yet according to the investigations by DW 2, John Ngari was the one driving and the appellant was not even in the vehicle at the time.
32. The appellant gave evidence that he was the one driving the vehicle at the time of the incident and was supported by the entry in the police abstract.
33. The person who alleged that the vehicle was not being driven by the appellant was DW 2, the investigator. He gave extensive testimony on how he arrived at his conclusion stating how he had called the appellant’s and John Ngari’s wives, that he had obtained phone logs from a mobile phone service provider to show that the driver and the appellant had spoken on phone at the time of the incident an indication that they were not together in the vehicle and that the OB entry at the police station showed that the driver was John Ngari.
34. However, all these remained allegations that were not supported by any tangible evidence. The OB entry was not produced in court as evidence. What was provided to court was a scanned portion of the alleged OB entry that was then embedded in the investigation report. The same was not legible and in any case would not be admissible as such without the original or certified copy being produced by the maker or a person authorized from Kerugoya police station. Even then, the scanned copy embedded in the report was not put to PW 2 when he appeared and testified to confirm whether it was an authentic copy of the OB entry or not. The trial court observed that what was contained in the investigator’s report was illegible. I have looked at it and indeed it is illegible. Learned counsel for the respondent promised to provide a legible copy annexed to his submissions but that was not done. The alleged call logs showing communication between the appellant and John Ngari at the time of the incident were also not produced in evidence. Similarly, what is contained in the investigator’s report, a scanned image embedded in the report is of no evidential value. The allegation that the respective wives of the appellant and John Ngari had informed the investigator that the vehicle was being driven by John Ngari alone without the appellant in the vehicle at the time of the incident is hearsay and inadmissible.
35. The evidence on record on who was driving the vehicle remained that of the appellant as supported by the entry in the police abstract that was produced in court and not contested by the respondent. That was the information provided in the claim form submitted by the appellant to the respondent.
36. The position in law is that under section 107 of the Evidence Act (Cap. 80) Laws of Kenya, the legal burden of proof was upon the appellant to prove his case on a balance of probability as held in the case of Manyinsa v Lavington Security Limited [2023] KECA 1376 (KLR). However, under section 109 of the Evidence Act, the evidential burden of proof to demonstrate misrepresentation of a material fact by the appellant was upon the respondent.
37. The respondent tried to put up a fairly persuasive case of how the appellant misrepresented a material fact entitling it to repudiate the contract but that was not backed up by concrete evidence. All that the investigator said was hearsay and therefore worthless. It could not dislodge the evidence by the appellant. Consequently, I find that there was no evidence to prove misrepresentation of a material fact by the appellant as to who was driving the vehicle at the time of the incident. There was no breach of the principle of utmost good faith by the appellant in claiming compensation.
38. The evidential burden to prove that the appellant had provided the wrong information in the claim form and therefore breached the contract of insurance through misrepresentation of a material fact and therefore that the respondent was entitled to repudiate the contract was upon the respondent. That evidential burden was not discharged.
39. I find that the learned trial magistrate misapprehended the evidence by finding that the policy of insurance not having been produced, the appellant had not proved his case on a balance of probability.
40. Consequently, I find that the appeal has merit and the same is allowed. The trial court’s judgment is set aside and substituted with a judgment allowing the appellant’s claim with costs both in the lower court and in this court.
41. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Teams this 25th day of June 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Lumumba (Ms.) holding brief Mwangi for the Appellant.
Muriuki for the Respondent.
Job: Court Assistant.
ANDAYI W. F.
JUDGE
Background
1. This appeal arises from a suit by the appellant Patrick Ngatia Kariuki against the respondent Pacis Insurance Company Limited in the trial court in a plaint dated 12/4/2022. The appellant’s claim in the suit was for a declaration that the respondent was obliged and liable to satisfy the repair costs of KShs 176,500/= incurred by the appellant towards the repair of his motor vehicle registration number KCR 960 D which was damaged on 24/12/2019 by a gang of robbers as he was driving the same at Kibingo area and which was insured by the respondent through a comprehensive insurance policy number C/090/0070/132194/2019.
2. In a judgment dated 15/2/2023 the trial court dismissed the suit finding that the appellant had not proved his claim because he had not provided the insurance policy document, the basis of his contractual arrangement with the respondent.
Grounds of appeal
3. The appellant was aggrieved by the judgment and now appeals against that decision in his memorandum dated 14/3/2023 raising the following grounds:
a. the learned trial magistrate erred in law and in fact in failing to consider adequately or at all the totality of the evidence that was tendered and in so doing, she arrived at an erroneous finding.
b. the learned trial magistrate erred in law and in fact in manner that she shifted the burden of proof of breach of the insurance policy from the respondent to the appellant.
c. the learned trial magistrate erred in law and in fact in dismissing the appellant’s case on the basis that the insurance policy document was not made available whereas the respondent admitted that they had insured the appellant’s motor vehicle.
d. the learned trial magistrate erred in law and in fact in formulating issues that were not raised in the parties pleadings or evidence.
e. the learned trial magistrate erred in law and in fact in failing to consider the appellant’s submissions and in so doing she arrived at an erroneous decision.
4. The appellant thus prays that the appeal be allowed, the judgment of the trial court be set aside and this court proceeds to declare that the respondent was liable to satisfy the repair costs of KShs 176,500/= (although it is written as 176, 50/=) which I find to be a typographical error.
Submissions
5. The appeal was disposed of by way of written submissions which were filed by learned counsels for both parties.
6. The submissions by both parties are considered in the analysis following.
Duty of appellate court
7. This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A 123 where it was held as follows:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Case before the trial court
8. The case before the trial court from the pleadings and evidence before court was that the respondent was the insurer of the appellant’s motor vehicle registration number KCR 960D. It was the appellant’s case that he was driving the said vehicle on 24/12/2019 when he was accosted by a gang of robbers at Kibingo area. The robbers blocked his way and forced him to stop the vehicle. In the process to force the appellant out of the vehicle, the robbers extensively damaged the vehicle.
9. The appellant managed to escape from the scene unhurt and report the incident at Kerugoya police station. The incident was recorded in the police Occurrence Book whereupon he was issued with a police abstract.
10. The appellant subsequently had the damage repaired at his own cost of KShs 176,500/= and then sought reimbursement of the money from his insurer the respondent by completing the requisite claim forms.
11. The respondent commissioned investigations into the claim which were conducted by Alex Muteti DW 2, of Urban Loss Assurance (K) Ltd who returned a verdict that in fact the appellant was not driving nor was he in the vehicle at the material time but that the vehicle was being driven by one John Ngari. According to the DW 2, the said John Ngari was not an authorized driver of the vehicle and the appellant had provided false information in his claim form that he was the driver of the vehicle at the material time. The respondent averred that the appellant made a misrepresentation and failed to make full disclosure of material facts. That a contract of insurance is a contract of utmost good faith (uberrimae fidei) and the appellant was under obligation to be truthful and disclose all material facts of the circumstances surrounding the damage to his vehicle. In the circumstances the respondent was entitled to repudiate the contract and not honour its obligation to pay for the damage to the vehicle.
12. Consequently, the respondent declined to settle the claim thereby causing the appellant to file suit.
13. The appellant testified in the case as PW 1 and called one witness PW 2, PC Isaiah Mutwiri of Kerugoya police station who gave evidence that the incident was reported at the police station and the appellant issued with police abstract which showed that the appellant was the driver of the vehicle at the time of the incident.
14. The respondent gave evidence through its Legal Officer, DW 1, Anne Kinyua and the investigator, DW 2, Alex Muteti.
15. Upon considering the evidence and submissions of parties, the learned trial magistrate dismissed the suit finding that the appellant had not proved his claim because he had not provided the insurance policy document, the basis of his contractual arrangement with the respondent.
Analysis
16. I have considered the grounds of appeal, the submissions by learned counsels for the parties and reviewed and reexamined the case before the trial court including the pleadings, the evidence and the judgment. The issue for determination is whether or not the learned trial magistrate was correct in her finding that the appellant had not proved his case and thus dismissing it.
17. The evidence before the trial court was that the respondent was the insurer of the appellant’s motor vehicle and that the vehicle was damaged in an incident of robbery on the night of 24/12/2019. It was also not in contention that the incident had been reported to the police and the appellant had repaired the damage at his own cost.
18. Learned counsel for the appellant submits that the appellant discharged the burden of proof by establishing that his vehicle was damaged while he was driving it, he had comprehensively insured it with the respondent and that the respondent was liable to pay for the damage.
19. Learned counsel for the respondent submits that the appellant had failed to discharge the burden of proof in the trial court. That he was not able to demonstrate the respondent acted maliciously by refusing to pay the special damages of KShs 176,500/= and that there were no particulars of malice against the respondent. I have not seen any claim by the appellant against the respondent based on malice though. The appellant’s claim in the plaint was that the respondent had failed to refund the repair costs of KShs 176,500/=.
20. Both learned counsels cited and quoted the provisions on who bears the burden of proof in a case as provided under sections 107 and 109 of the Evidence Act (Cap. 80) Laws of Kenya.
21. The learned trial magistrate properly directed herself on the issue of the legal burden of proof of the claim falling upon the appellant but failed to direct herself correctly on the evidential burden of proof that was cast on the respondent as will be demonstrated shortly. She relied on the case of Rentco East Africa Limited v Dominic Mutua Ngonzi [2021] KEHC 1079 (KLR) in which Odunga, J. (as he then was) extensively discussed sections 107, 108, 109 and 112 of the Evidence Act (Cap. 80) Laws of Kenya on the legal burden of proof and the evidential burden of proof. In that case, the case of Evans Otieno Nyakwana v Cleophas Bwana Ongaro [2015] KEHC 8440 (KLR) was cited in which these provisions of the law were explained thus:
“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:
107(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
Furthermore, the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in sections 109 and 112 of the Act as follows:
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
22. This court is well aware that it should not lightly defer with the findings of the trial court where the same are based on an assessment of the facts before it. I am guided by the case of Makube v Nyamiro [1983] KLR 403, where the court stated that;
“… a Court of Appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”
23. And in Kiruga v Kiruga & Another [1988] eKLR the court reiterated the principles above. Apaloo JA stating thus at pp 22:
“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. In the oft-cited case of Peters vs. Sunday Post [1958] EA 424, this Court accepted the principle laid down by the House of Lords in Watt vs. Thomas [1947] 1 All ER 582”.
24. In the case of Watt v Thomas referred to above the principles to be applied by an appellate court when required to review a trial court’s findings of fact are discernible from the opinions of their Lordships as below. In general terms, Viscount Simon said:
“… an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached on that evidence should stand, but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide, but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.”
25. On his part, Lord Thankerton expressing his opinion in cases where the appellate court is disposed to differ from the trial court’s findings had this to say at page 587:
“I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus:
I. Where a question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion.
II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.
III. The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court…
It may be well to quote the passage from the opinion of Lord Shaw in Clarke v. Edinburgh & District Tramways Co., (15) (1919 S.C. (H.L.), 35, 37] which was quoted with approval by Lord Sankey, L.C., in Powell v. Streatham Manor Nursing Home (1) ([1935] A. C. 250). Lord Shaw said:
In my opinion, the duty of an appellate court in those circumstances is for each judge to put it to himself, as I now do in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.”
26. I am well guided by the principles enunciated in the cases above. The issue is whether or not the learned trial magistrate was correct in her determination of the fact that the failure to produce the policy of insurance for the vehicle in court meant that the appellant had failed to prove his case.
27. It is true that indeed, the policy of insurance was not produced in evidence by either the appellant or the respondent. However, there was no dispute that at the time of the accident, the vehicle was properly comprehensively insured by the respondent meaning there was a valid policy of insurance in force. The same was not contested.
28. Learned counsel for the appellant submits that the dispute between the appellant and the respondent was whether the appellant was the one driving the motor vehicle at the time of the accident as per the appellant's evidence or whether it was being driven by John Ngari as per the respondent’s evidence. He submits further that the respondent’s witness testified that even if the motor vehicle was being driven by a third party at the time of the incident, that was not a basis to repudiate the claim.
29. Learned counsel for the respondent on his part submits that the respondent has a right to avoid the insurance policy due to non-disclosure of material facts. He submits further that the respondent cannot be compelled to satisfy the repair costs done in utmost secrecy following a breach of good faith occasioned by a misrepresentation of material facts on the insured driver and the circumstances surrounding the incident.
30. Learned counsel for the respondent has in his aid cited the cases of Kenya Orient Insurance Limited v Kelvin Macharia Karanja [2017] KEHC 5202 (KLR) and the Indian case of United India Insurance Co. Ltd vs M.K.J. Corporation 1996 (6) SCC 428 on the fundamental principal of insurance law that utmost good faith must be observed by the contracting parties.
31. It is apparent from the evidence on record that the issue that caused the respondent to allege repudiation of the contract of insurance was that the appellant provided wrong information in the claim form, while claiming for compensation, that he was the driver of the vehicle at the time of the incident. It was upon this that the DW 2 speculated that the alleged driver John Ngari may not have been authorized to drive the vehicle. But the issue was not even that the person was not authorized. It was the information in the claim form that the appellant was the one driving yet according to the investigations by DW 2, John Ngari was the one driving and the appellant was not even in the vehicle at the time.
32. The appellant gave evidence that he was the one driving the vehicle at the time of the incident and was supported by the entry in the police abstract.
33. The person who alleged that the vehicle was not being driven by the appellant was DW 2, the investigator. He gave extensive testimony on how he arrived at his conclusion stating how he had called the appellant’s and John Ngari’s wives, that he had obtained phone logs from a mobile phone service provider to show that the driver and the appellant had spoken on phone at the time of the incident an indication that they were not together in the vehicle and that the OB entry at the police station showed that the driver was John Ngari.
34. However, all these remained allegations that were not supported by any tangible evidence. The OB entry was not produced in court as evidence. What was provided to court was a scanned portion of the alleged OB entry that was then embedded in the investigation report. The same was not legible and in any case would not be admissible as such without the original or certified copy being produced by the maker or a person authorized from Kerugoya police station. Even then, the scanned copy embedded in the report was not put to PW 2 when he appeared and testified to confirm whether it was an authentic copy of the OB entry or not. The trial court observed that what was contained in the investigator’s report was illegible. I have looked at it and indeed it is illegible. Learned counsel for the respondent promised to provide a legible copy annexed to his submissions but that was not done. The alleged call logs showing communication between the appellant and John Ngari at the time of the incident were also not produced in evidence. Similarly, what is contained in the investigator’s report, a scanned image embedded in the report is of no evidential value. The allegation that the respective wives of the appellant and John Ngari had informed the investigator that the vehicle was being driven by John Ngari alone without the appellant in the vehicle at the time of the incident is hearsay and inadmissible.
35. The evidence on record on who was driving the vehicle remained that of the appellant as supported by the entry in the police abstract that was produced in court and not contested by the respondent. That was the information provided in the claim form submitted by the appellant to the respondent.
36. The position in law is that under section 107 of the Evidence Act (Cap. 80) Laws of Kenya, the legal burden of proof was upon the appellant to prove his case on a balance of probability as held in the case of Manyinsa v Lavington Security Limited [2023] KECA 1376 (KLR). However, under section 109 of the Evidence Act, the evidential burden of proof to demonstrate misrepresentation of a material fact by the appellant was upon the respondent.
37. The respondent tried to put up a fairly persuasive case of how the appellant misrepresented a material fact entitling it to repudiate the contract but that was not backed up by concrete evidence. All that the investigator said was hearsay and therefore worthless. It could not dislodge the evidence by the appellant. Consequently, I find that there was no evidence to prove misrepresentation of a material fact by the appellant as to who was driving the vehicle at the time of the incident. There was no breach of the principle of utmost good faith by the appellant in claiming compensation.
38. The evidential burden to prove that the appellant had provided the wrong information in the claim form and therefore breached the contract of insurance through misrepresentation of a material fact and therefore that the respondent was entitled to repudiate the contract was upon the respondent. That evidential burden was not discharged.
39. I find that the learned trial magistrate misapprehended the evidence by finding that the policy of insurance not having been produced, the appellant had not proved his case on a balance of probability.
40. Consequently, I find that the appeal has merit and the same is allowed. The trial court’s judgment is set aside and substituted with a judgment allowing the appellant’s claim with costs both in the lower court and in this court.
41. Orders accordingly.
Dated, Signed and Delivered on the virtual platform Teams this 25th day of June 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Lumumba (Ms.) holding brief Mwangi for the Appellant.
Muriuki for the Respondent.
Job: Court Assistant.
ANDAYI W. F.
JUDGE