[2019] KEHC 12021 (KLR)
The court found that the application for stay of execution and proceedings was not anchored in the pleadings of the main suit, as no remedy was sought against the 2nd and 3rd respondents. The court further held that it lacked jurisdiction to grant a stay in a suit where judgment had already been delivered and no...
Source-derived case information.
- Citation
- [2019] KEHC 12021 (KLR)
- Parties
- Applicant: David Musili Muthui; Respondent: Directline Insurance Company Limited; Respondent: Taabu Vaati Joseph; Respondent: Zainabu Joseph
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 88 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution
- Outcome
- application dismissed with costs
- Judges
- BT Jaden
- Legal Topics
- Stay of Execution, Declaratory Orders, Jurisdiction of High Court, Insurer Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Musili Muthui
Applicant
Directline Insurance Company Limited
Respondent
Taabu Vaati Joseph
Respondent
Zainabu Joseph
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution
Legal Issues
- 1 Whether the High Court has jurisdiction to grant a stay of execution and proceedings in a suit where judgment has already been delivered and no appeal or review has been preferred.
- 2 Whether there is a cause of action disclosed against the 2nd and 3rd respondents in the application for stay of execution.
- 3 Whether the interlocutory orders sought can be granted against parties against whom no remedy is sought in the main suit.
Ratio Decidendi
The court found that the application for stay of execution and proceedings was not anchored in the pleadings of the main suit, as no remedy was sought against the 2nd and 3rd respondents. The court further held that it lacked jurisdiction to grant a stay in a suit where judgment had already been delivered and no appeal or review had been filed. The application was therefore without merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 29th April, 2019 is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 88 OF 2019
DAVID MUSILI MUTHUI....................................PLAINTIFF/APPLICANT
VERSUS
DIRECTLINE INSURANCE COMPANY LIMITED.......1ST RESPONDENT
TAABU VAATI JOSEPH.....................................................2ND RESPONDENT
ZAINABU JOSEPH.............................................................3RD RESPONDENT
RULING
1. The application dated 29th April, 2019 seeks orders that pending the hearing and determination of the suit herein there be stay of execution and proceedings in Milimani CMCC 2667 of 2014.
2. The application is premised on the grounds stated therein and the supporting affidavit sworn by the Applicant, David Musili Muthui. It is stated that judgment was delivered on 4th April, 2019 in CMCC No. 2667 of 2014, Taabu Joseph & another v David Musili Muthui . That David Musili Muthui who is the Applicant herein had been sued in the said case by the 2nd and 3rd Defendants herein who are the legal representatives of the late Joseph Mwangui Musee who died as a result of fatal injuries sustained on 10th November, 2011 while on board motor vehicle Registration No. KBF 844F which motor vehicle was insured by the 1st Defendant herein who is duty bound to settle the award of Ksh.615,514/= interest and costs in CMCC No. 2667/14. The Applicant is apprehensive that the 1st Defendant may decline to settle the aforestated decretal sum and as a consequence execution proceedings may be commenced against him.
3. The 1st Defendant, Directline Insurance Company Limited on 18th September, 2019 informed the court that they will not participate in the application.
4. The 1st and 2nd Defendants in opposition to the application filed the grounds of opposition dated 7th May, 2019 which are as follows:
“1. The Plaintiff’s application and suit herein do not disclose any cause of action against the 2nd and 3rd Defendants. The same should be struck out as against themselves.
2. This Honourable Court does not have the jurisdiction to stay execution and proceedings in a suit which has been concluded and judgment has been delivered and no Appeal or Review has been preferred. There are no provisions of law to sanction such a process.
3. That the 2nd and 3rd Defendant have no locus standi in a suit based on a contract between the Plaintiff and the 1st Defendant. The application and the suit should be struck out as against themselves.
4. That the Applicant’s application is incompetent, frivolous, vexatious and an abuse of court process.”
5. I have considered the application, the response to the same and the submissions filed.
6. The suit herein seeks declaratory orders that the 1st Defendant is liable to satisfy the judgment and decree in Milimani Commercial Courts CMCC 2667/14. The 1st Defendant is sued as the insurer of motor vehicle registration No. KBF 844F. In the case herein, no remedy has been sought against the 2nd and 3rd Defendants. The application for the interlocutory orders sought herein must be anchored in the pleadings in the main suit. There is therefore no basis upon which to grant the orders sought herein against the 2nd and 3rd Defendants.
7. If the Applicant herein has any issues with the judgment entered in favour of the 2nd and 3rd Defendants who were the Plaintiff’s in CMCC No. 2667/14, he ought to deal with them within the remedies available therein.
8. With the foregoing, this court’s conclusion is that the application has no merits. Consequently, the application is hereby dismissed with costs.
Dated, signed and delivered at Nairobi this 7th day of Nov., 2019
B.THURANIRA JADEN
JUDGE