[2014] KEHC 2057 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 115 OF 2013

GEMINIA INSURANCE COMPANY LIMITED ………..…..………...PLAINTIFF

VERSUS

ROSE MUTHAISU KASIVA …………………………………. 1ST DEFENDANT

EZRA EVANS OLUOCH …………………..….…………….. 2ND DEFENDANT

DAUDI KAVOI JOEL ………………..……………………… 3RD DEFENDANT

PILESI MWITHI JOEL (Suing on behalf of

the Estate ofPIUS MATEI MUASA) …………………………4TH DEFENDANT

RULING

ON MOTION OF MOTION DATED 18TH JUNE 2014

The Notice of Motion under consideration (the Application) is filed by 3rd and 4th Defendants. Those Defendants seek the setting aside of the Order issued on 9th October 2013 which Order stayed the Mombasa CMCC No. 140 of 2013.

BACKGROUND

This suit was initially filed by Geminia Insurance Company Ltd, the Plaintiff, against two Defendants namely ROSE MUTHAISU KASIVA and EZRA EVANS OLUOCH.

The 1st Defendant is the registered owner of motor vehicle Registration No. KAP 762E. The Plaintiff is the Insurer of that vehicle. The 2nd Defendant was the driver of that vehicle on 7th November 2011. By this suit Plaintiff seeks declaration that it is entitled to avoid the Insurance contract over the said vehicle and a declaration that it is not legally obliged to honour claims or judgment in respect of the Insurance cover. Plaintiff also seeks stay of Mombasa CMCC No. 1430 of 2013 pending determination of this suit.

In Mombasa CMCC No. 1430 of 2013 the 3rd and 4th Defendants sued the 1st and 2nd Defendants for compensation in respect of the Estate of PIUS MATETI MUASA (Deceased) who died as a result of accident allegedly caused by 2nd Defendant as authorized driver of 1st Defendant.

The Plaintiff herein by Notice of Motion dated 4th October 2013 sought stay of Mombasa CMCC No. 1430 of 2013. That Notice of Motion was filed under Certificate of Urgency. It was heard ex parte on 9th October 2013 when the Court granted stay of CMCC No. 1430 of 2013 for 3 months, that is upto 20th November 2013. The Court on that day also ordered this suit be Fast Tracked. When that stay order was granted the 3rd and 4th Defendants were not yet parties in this case.

On 20th November 2013 the 1st and 2nd Defendants though served with application to stay CMCC No. 1430 of 2013 they did not attend Court nor did they oppose the application. The Court on that day extended stay of CMCC NO. 1430 of 2013 upto the last day of May 2014. This suit was ordered to be heard before end of May 2014.

The Court on 25th March 2014 granted leave to the joining of 3rd and 4th Defendants in this case. From that date onwards the 3rd and 4th Defendants participated in this case.

NOTICE OF MOTION DATED 18TH JUNE 2014

The application under consideration as stated before seeks to vacate the order of 9th October 2013 staying CMCC No. 1430 of 2013. The order for vacation is sought on the basis that the Order of that day was granted when the 3rd and 4th Defendants were not parties in this case. Evan Gichuki Thiaka, Advocate for 3rd and 4th Defendants swore the affidavit dated 18th June 2014 in support of the application. He deponed-

THAT the Plaintiff herein is not a party to MSA CMC No. 1430 of 2013 hence has no locus to obtain any Orders therein.

THAT the Plaintiff herein has not issued a Notice repudiating Policy No. CV/03/0342002/IMTPO.

THAT the Deceased on whose behalf MSA CMCC No. 1430 of 2013 is filed was not privy to the contractual obligations arising out of the cause of action between the Plaintiff herein and the 1st Defendant.

THAT the Plaintiff/Respondent herein seeks to gain undue advantage to escape liability by staying CMCC No. 1430 of 2013.

THAT the Appellant’s and the Estate of the Deceased are equally entitled to equal protection and benefit of the Law hence MSA CMCC No. 1430 of 2013 should also proceed expeditiously and judiciously to full conclusion without unnecessary delays.

THAT the Applicants are entitled to a fair hearing, hence they ought to be given a chance to be heard.

THAT staying MSA CMCC No. 1430 of 2013 has be greatly prejudicial the Applicants and the Estate of the Deceased.

Plaintiff in its replying affidavit sworn by Joseph Ogero on 7th July 2014 objected to the application. The deponent deponed in that affidavit-

“THAT the dispute between the Insurer (Plaintiff) and the First Defendant (Insured) directly impacts on the 3rd and 4th Defendant’s lower Court claim and in the unlikely event that stay orders are discharged the lower Court case will proceed and there will be execution which will expose the Plaintiff to the risk of loss and suffering.”

Further it was deponed that the Plaintiff had prepared and was ready to proceed with the prosecution of this suit.

ANALYSIS

The application was heard interpartes on 23rd July 2014. As a

consequence of its hearing the full hearing of this suit that had been set for that day could not proceed. It is therefore obvious that the filing of the application by the 3rd and 4th Defendants has delayed the conclusion of this suit and has therefore caused the prolonging of the stay of CMCC No. 1430 of 2013.

Learned Counsel for the 3rd and 4th Defendants as he argued the

application stated thus-

“We pray that the orders of stay be set aside and [the] matter do start afresh in the presence of 3rd and 4th Defendants, that is the Plaintiff’s application.”

It does therefore seem that 3rd and 4th Defendants seek to vacate the order of 9th October 2013 because it was granted in the absence of 3rd and 4th Defendants. However as stated before the Order of 9th October 2013 was granted exparte under Certificate of Urgency. By 14th May 2014 when the 3rd and 4th Defendants had already been joined as parties in this case the Court in the presence of Counsel for the 3rd and 4th Defendants granted a stay of CMCC No. 1430 of 2013 up to the last day of July 2014.

The Order of 9th October 2013 which granted stay upto to 20th

November 2013 expired on that date. It therefore follows having expired it would be in vain to set it aside or vacate it as sought by the Applicants. I therefore find that the prayer that is sought cannot be granted because they would be in vain. It is in vain because the Court cannot vacate an Order that has expired. It is for that reason that the application will be dismissed.

It is unfortunate the application interfered with the hearing of the

suit. Had the suit proceeded for hearing on 23rd July 2014 and a judgment issued the stay would have automatically vacated.

CONCLUSION

The Notice of Motion dated 18th June 2014 is dismissed but the costs

shall be in the cause. The Court orders that Mombasa CMCC No. 1430 of 2013 be and is hereby stayed for six (6) months from this date hereof.

DATED and DELIVERED at MOMBASA this 9TH day of OCTOBER, 2014.

MARY KASANGO

JUDGE