Procurement Management  ·  Level 6
Principles Of Commercial Law
Chapter 9: Apply law of insurance
📚 5 Topics
⚑ What you will be able to do

By the end of this chapter, you will be able to:

  • Identify different types of insurance contracts according to the Insurance Act 2020 of Kenya.
  • Analyze key insurance principles based on the Insurance Act 2020 of Kenya.
  • Form insurance contracts correctly following your organization's requirements.
  • Discharge insurance contracts accurately according to the specific terms agreed upon.

Mastering these skills will help you confidently handle insurance matters, ensuring clear agreements and protecting all parties involved in the trade.

Compiled by: Simon Ngugi

Insurance is a critical risk management tool in procurement management, providing financial protection against unforeseen losses that can disrupt supply chains and contractual obligations. Procurement professionals in Kenya must understand the legal framework underpinning insurance contracts to effectively manage risks related to goods, services, and project execution. This chapter focuses on the law of insurance, particularly the nature of insurance contracts and the essential elements that make these contracts valid and enforceable within the Kenyan commercial context.

9.1 Insurance contracts

Insurance contracts are unique legal agreements that transfer risk from one party to another, typically from the insured to the insurer. In procurement, these contracts safeguard against losses such as damage to goods, liability claims, or project delays, which can have significant financial implications. Understanding the structure and legal requirements of insurance contracts enables procurement managers to negotiate better terms and ensure compliance with Kenyan insurance laws.

9.1.1 Elements of insurance

The validity of an insurance contract depends on the presence of certain fundamental elements. These elements establish the contractual relationship between the insurer and the insured, ensuring that the agreement is legally binding and enforceable. Kenyan procurement professionals must grasp these elements to assess the adequacy and legality of insurance policies they engage with, whether for goods in transit, professional indemnity, or performance bonds.

Offer and Acceptance

Offer and acceptance form the foundation of any contract, including insurance agreements. The insurer makes an offer by proposing specific terms and coverage, while the insured accepts by agreeing to those terms, often by signing the policy document or paying the premium. In procurement, a firm like a county government office may request an insurance quote for goods, which the insurer offers, and upon acceptance, the contract is formed. This mutual consent must be clear and unequivocal to avoid disputes.

Insurable Interest

Insurable interest means the insured must have a legitimate interest in the subject matter of the insurance, such that loss or damage would cause them financial harm. This prevents gambling on unrelated risks. For example, a retail business insuring its stock demonstrates insurable interest because damage to the stock directly affects its financial position. Kenyan law requires this element to prevent moral hazard and ensure that insurance contracts serve genuine risk management purposes.

Utmost Good Faith (Uberrimae Fidei)

The principle of utmost good faith requires both parties to disclose all material facts relevant to the risk being insured. Full disclosure is essential because the insurer relies on this information to assess risk accurately and set premiums. For instance, a procurement manager at a hospital must disclose any previous claims history when obtaining insurance for medical equipment. Failure to disclose material facts can lead to contract avoidance or claim denial under Kenyan insurance law.

Consideration

Consideration refers to something of value exchanged between the parties, typically the payment of premiums by the insured in return for the insurer’s promise to indemnify losses. In procurement contracts, the payment schedule and amount must be clear and agreed upon. For example, a cooperative society purchasing insurance for its vehicles must pay the agreed premium to maintain coverage. Without consideration, the contract lacks validity and enforceability.

Legal Capacity and Legality of Object

Both parties must have legal capacity to enter into the insurance contract, meaning they are of sound mind, legal age, and not disqualified by law. Additionally, the contract’s purpose must be lawful. A procurement officer cannot insure goods for illegal activities, as such a contract would be void. Kenyan law enforces these requirements to uphold public policy and prevent exploitation or fraud.

Practice Questions

  1. Explain the importance of insurable interest in insurance contracts within the context of procurement management. (10 marks)
  2. Discuss how the principle of utmost good faith affects the relationship between an insurer and the insured in Kenya. (10 marks)
  3. Identify and explain five essential elements required for the formation of a valid insurance contract. (15 marks)
  4. Using examples, illustrate the role of consideration in insurance contracts relevant to procurement professionals. (10 marks)
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🔒9.2 Principles of insurance

Insurance is a critical risk management tool in procurement management, providing financial protection against uncertainties that may affect contracts, goods, or services. In Kenya, procurement professionals rely on insurance principles to safeguard public fun…

🔒9.3 Formation of insurance contract

The formation of an insurance contract is a fundamental aspect in procurement management, particularly for professionals responsible for securing adequate risk cover for their organizations. In Kenya, insurance contracts underpin the mitigation strategies for…

🔒9.4 Requirement for insurance contract

Insurance contracts are subject to specific legal requirements to ensure their validity and enforceability. For procurement professionals in Kenya, understanding these requirements is critical to securing appropriate insurance that complies with the Insurance…

🔒9.5 Discharge of insurance contract

In procurement management, understanding how an insurance contract is discharged is crucial for managing risks and liabilities associated with goods, services, and projects. Insurance contracts provide financial protection against unforeseen losses, but they a…

🔒10 Apply Law of Property

Property law governs ownership, use, and transfer of property rights, which are fundamental in procurement management for safeguarding assets, securing titles, and ensuring lawful transactions in Kenya. Procurement professionals must navigate property laws whe…

Chapter Summary

This chapter explored the nature and structure of insurance contracts, emphasizing the essential elements that constitute a valid insurance agreement. It examined the fundamental principles underpinning insurance, including utmost good faith, subrogation, indemnity, proximate cause, third party insurance, reinstatement, salvage, and the concepts of contribution and appointment. The process of forming an insurance contract was detailed, highlighting the necessary steps and considerations to ensure legality and enforceability. The chapter also outlined the specific requirements that an insurance contract must meet to be valid under commercial law. Finally, it addressed the various ways in which an insurance contract can be discharged, whether through performance, agreement, or other legal means, providing a comprehensive understanding of how insurance law operates in practice.

Self-Assessment

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A. Written Assessment

  1. Define an insurance contract and explain its relevance in procurement management. (4 marks)
  2. List and explain the five essential elements of an insurance contract. (10 marks)
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Chapter Examination Questions

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SECTION A (40 Marks) - Answer ALL Questions

  1. Define an insurance contract and explain its relevance in procurement management within Kenyan public institutions. (4 marks)
  2. Identify and explain the essential elements of an insurance contract. (4 marks)
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Am I competent?

At the start of this chapter we promised you would be able to:

  • Identify different types of insurance contracts according to the Insurance Act 2020 of Kenya.
  • Analyze key insurance principles based on the Insurance Act 2020 of Kenya.
  • Form insurance contracts correctly following your organization's requirements.
  • Discharge insurance contracts accurately according to the specific terms agreed upon.

Tick each one you can genuinely do.

So, are you there yet?

You're competent when you can confidently do 50% or more of what this chapter promised.

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