[2004] KEHC 1229 (KLR)
The court found that the applicant had an arguable case against the Commissioner of Insurance and had complied with the law by obtaining third party insurance. However, the court declined to grant a stay of execution of the decree, reasoning that such an order would be unfair to the decree holders, who are entitled...
Source-derived case information.
- Citation
- [2004] KEHC 1229 (KLR)
- Parties
- Applicant: Ann Muchira; Respondent: The Commissioner of Insurance; Defendant: United Insurance Company Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1674 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Application partly allowed; stay of execution refused.
- Judges
- AI Tullu
- Legal Topics
- Third Party Insurance, Stay of Execution, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Muchira
Applicant
The Commissioner of Insurance
Respondent
United Insurance Company Ltd.
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to interlocutory relief against the Commissioner of Insurance.
- 2 Whether the United Insurance Company Ltd. should be enjoined as an interested party.
- 3 Whether a stay of execution of the decree in HCCC No. 562 of 1998 should be granted.
Ratio Decidendi
The court found that the applicant had an arguable case against the Commissioner of Insurance and had complied with the law by obtaining third party insurance. However, the court declined to grant a stay of execution of the decree, reasoning that such an order would be unfair to the decree holders, who are entitled to the fruits of their judgments. The court also noted the notorious inability of United Insurance Company Ltd. to pay claims and enjoined it as an interested party. The application for stay was declined, but prayers 1 and 2 were granted, allowing the main application to proceed and requiring service on United Insurance Company Ltd.
Court Disposition
Application partly allowed; stay of execution refused.
Orders
- Prayers 1 and 2 of the application are granted.
- Costs shall be in the main application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. APPL. NO. 1674 2004
ANN MUCHIRA…………………………………..…………APPLICANT
VERSUS
THE COMMISSIONER OF INSURANCE …………….RESPONDENT
RULING
I have considered this matter at length. I am very persuaded at this stage that the Applicant has an arguable case against the Commissioner of Insurance. The Applicant is an innocent party who has complied with the Law that required her to take out a Third party insurance cover. She duly paid her insurance premiums and the same received by a licensed insurance company. After the accident took place, the insurance company took up the Defence of the claims and out of 7 has settled 5. The Applicant is now faced with execution of a decree of almost Shs. 500,000/= which is not a mean sum for any ordinary Kenyan.
However, the decree holder in these matters are also victims. They have Judgments in their favour and they have to enjoy the fruit of Judgment after suffering injuries and/or loss and damage. This is a very sad situation for both the applicant and the Decree-holders.
The United Insurance Company Ltd. is a notorious company in this court and the court takes judicial notice that the company is unable to pay its claims. Is the Commissioner of Insurance responsible? This question must go for determination in this court.
I do hereby grant prayers 1 and 2. Costs shall be in the Main application. The Application shall be filed within the next 21 days. The United Insurance company Ltd. Is hereby enjoined as an interested party and must be served.
With much regret, I am unable to grant stay of the execution of the Decree in HCCC No.562 of 1998. I think that it would be wrong for this court to do so after the events in one matter in which a stay was granted.
Such an Order would be onerous and unfair to the Decree-holder who has nothing to do with the Commissioner’s problems or that of United Insurance. This suit is against our Insurance Industry and system. It is board to come to a head very soon with calumnious consequences for our economy. It will be inevitable as long as we have unstable Insurance companies in the market.
As a result I do hereby decline to grant prayer 3.
Dated and delivered at Nairobi this 7th day of December, 2004.
MOHAMMED K. IBRAHIM
JUDGE