Recently, Kenyans have witnessed the infiltration and violent disruption of most civic and political gatherings by hired thugs, leaving a trail of injury and wanton destruction of property.
Trends in political rallies and meetings reveal a rise in “goon” culture. Hired persons are unleashed on gatherings to terrorise, disrupt meetings and cause mayhem. The aim is to intimidate citizens and consolidate and align political camps.
At the end of the stick, businessmen and property owners are left counting losses, most of which are not recoverable unless well-worded insurance covers are in place.
Courts have in the past interpreted insurance policies and clauses touching on insurable political risks. In many instances, property owners and policyholders have been left without compensation where the claims are not specifically covered.
Following the 2007 post-election protests, Ukwala Supermarket in Kisumu was attacked by mobs and looted. In a suit against Kenindia Insurance Company, the court was faced with the question whether the losses to Ukwala were covered and recoverable.
The insurer argued that the losses arose from civil commotion and terrorism which were exempted as per the policy taken by the supermarket.
While dismissing the insurer’s defence that the loss and damage suffered was attributable to civil war or civil commotion assuming the proportion of a popular uprising, the Court found that the loss was occasioned by sporadic activities of looters who were acting for personal gain and not for any organised cause or terrorism.
In another 2007 post-election related case, Phoenix of (E.A) Assurance Co. Ltd v Leonard Gichora Kiiru [2019], the court interpreted a clause on general exceptions on war, civil war, political war and terrorism in favour of the insured after his vehicle was damaged by fire during the riots. It was held that the post-election violence was in furtherance of political turmoil which was covered under the policy.
Courts have relied on definitions of terrorism and political risks that parties adopt in the insurance policies as separate from other definitions in legislation dealing with crime and political offences. Strict interpretations found in the Prevention of Terrorism Act are not always adopted in insurance claims following riots.
In Kenolkobil Limited & another v Chartis Kenya Insurance Company Limited [2015], the court held that the definition of riots and strike under the insurance policy did not match the violence that took place during the post-election violence.
Similarly, in ICEA Lion General Insurance Co Ltd v Husseini [2024], the insurance cover excluded riots and civil commotion. There was no extension for riot, strikes and civil commotion to entitle compensation for losses arising from a riot.
Some insurance companies offer insurance for political violence and terrorism but exclude malicious damage. This may raise concerns where damage caused by goons is considered malicious and therefore exempt from cover.
Other insurers offer a wider coverage defining terrorism and political violence to encompass physical loss and damage, business interruption costs, due to a terrorist act or acts of political violence such as riot, strike, civil commotion, revolution, war, civil war, rebellion, insurrection, sabotage, coups, malicious damage, and consequential looting.
The latter wording provides cushion against political violence to a wider range of risks as currently emerging from goon violence.
As the General Election approaches in August 2027, there will be heightened political campaigns and civic activities. Considering the acts of hooliganism by goons so far, property owners, likely to be exposed to such violence, should consider whether their property is covered for political risks. Policyholders should ensure that the policies extend the cover to political risks like riot, strikes and civil commotion.
The wording should be specific to extend the cover to riots involving assemblage of three or more persons in a public place taking concerted action in a turbulent and disorderly manner for a common purpose. The cover should also encompass a public uprising by many people who, acting together, cause harm to people or to property.
The rising cases of hired goons and political violence pose great economic losses to Kenyans affected along the way of such riots. Businesses and supply chains face the risk of interruption. Whereas insurance cannot protect against civil unrest, well-worded insurance policies can ensure that consequential losses from riots, strikes and civil commotion are mitigated and compensated.
Martin is Partner – DLA Piper Africa, Kenya (IKM Advocates), Tom, a trainee Advocate at the same firm.
