KENYA NATIONAL ASSURANCE CO LTD V. KIMANI & ANOTHER

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM:NYARANGI, PLATT and APALOO JJA)

CIVIL APPEAL NO 42 OF 1984

KENYA NATIONAL ASSURANCE CO LTD........APPELLANT

VERSUS

KIMANI and ANOTHER..............................RESPONDENTS

(Appeal from the decision of the High Court at Nairobi, Sachdeva J)

JUDGMENT

Nyarangi JA This appeal is from the order of the High Court judge (Sachdeva J as he then was) raises questions of importance in insurance matters. The judge held that the appellant company had waived their right to repudiate liability by retaining the excess, that retention of the excess after discovery of a breach of the policy by the respondent insurers constituted an intention to affirm the policy and the insured were entitled to rely on the representation arising from the retention of the excess.

The chronology is as follows:

A policy of a motor vehicle registration mark KNN 511 was issued by the appellant company. The policy provided inter alia that the appellant as insurer would indemnify the responden…