[2019] KEHC 5395 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CIVIL CASE NO.2 OF 2018

HERITAGE INSURANCE CO. LTD. ......................................................PLAINTIFF/RESPONDENT

MOHAMED ALI NOOREIN ............................................................... DEFENDANT/RESPONDENT

AND

GLADYS KAYALO MMBO(suing as administratix of the estate of the lateOSCAR KASAMBA

MMBO -DECEASED) ..........................................PROPOSED INTERESTED PARTY/APPLICANT

RULING

[1]In the main suit, Heritage Insurance Company Limited(plaintiff), prays for declaratory orders to the effect that it is not liable to indemnify Mohamed Ali Noorein (defendant), in respect of any third party claim arising out of Oyugis PMCC Nos 9, 81, 82 and 83 of 2017 and Nos.192, 193, 194, 195 and 212 of 2016, between various plaintiffs and the defendant and also not liable to indemnify the defendant and/or pay or contribute to any claim in respect of any other third party claim arising out of motor vehicle Reg. No. KCE 761 L and KCB 686 B Toyota-Matatu and/or any suit that is to arise in future that is related and/or connected to the accident involving the two vehicles which occurred on 1st September 2016, at Seka along Homa Bay – Katito road occasioning fatal injuries to several people.

[2]It is alleged that the defendant was at the material time the registered owner of Motor Vehicle Reg. No. KCE 761 L Toyota Probox and was issued with a third party policy for the vehicle by the plaintiff for the period between 8th March 2016 to 21st December 2016. The plaintiff however, contends that it is not liable to indemnify the defendant and/or the passengers who were aboard the two said vehicles on the 1st September 2016, as the defendant breached the policy contract and is therefore liable to any claimant respecting the material accident and not the plaintiff which therefore instituted this suit on 11th April 2018, after obtaining necessary leave from the court on 21st March 2018.

The leave was accompanied by a condition that the proceedings in the aforementioned civil cases in Oyugis being cases Nos.9, 83 and 81 of 2017 and Nos.192, 193, 194 and 195 of 2016, be stayed for a period of ninety (90) days by which time this suit ought to have been filed and heard.

[3]This was followed by the plaintiff’s application dated 25th June 2018, to serve the defendant by substituted service in a daily newspaper of national circulation such as the Standard and Daily Nation Newspapers.

The application was however, withdrawn in court on 18th September 2018, and substituted for a fresh but similar application dated 17th September 2018, which was granted by the court on 23rd October 2018.

Thereafter, on the 14th February 2019, the present application dated 13th February 2019, was filed by an interested party pursuant to the provisions of Order 1 Rule 8 (3) of the Civil Procedure Rules as well as Sections 1A, 1B, 3, 3A and 63 (e) of the Civil Procedure Act (Cap 21 Laws of Kenya) and Article 50 of the Constitution.

The main orders sought by the Interested Party, Gladys Kayalo Mmbo suing as the administratrix of the estate of the late Oscar Kasamba Mmbo (deceased) are that she be granted leave to be enjoined as an interested party in these proceedings and leave to file her pleadings out of time. An order to set aside all ex-parte proceedings herein and any consequential orders is also sought.

[4]The application is based on the grounds contained in the appropriate chamber summons as fortified by the averments of the applicant in her supporting affidavit dated 13th February 2019.

The plaintiff opposes the application on the basis of its grounds of opposition dated 20th March 2019.

The hearing of the application was by way of written submissions. In that regard, the applicant’s submissions dated 28th May 2019 were filed on 3rd June 2019, by the firm of Isiaho Sawe & Co. Advocates while those of the plaintiff dated 20th June 2019 were filed on 21st June 2019.

[5]This court has given due consideration to the rival submissions and the grounds in support of the application and is of the view that the basic issue arising for determination is whether the applicant has provided and established sufficient legal and factual grounds for exercise of discretion in her favour.

Order 1 of the Civil Procedure Rules provides the legal basis for enjoinment of parties to a suit. In that regard Rule 10 (2) of the Orderis the applicable provision and provides that:-

“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit be added”.

[6]Grounds three (3) of the application indicates that the applicant is a beneficiary of a judgment entered against the said defendant and has since filed a declaratory suit against the plaintiff being Oyugis PMCC NO.78 of 2018 which is pending determination.

In ground eight (8), the applicant states that this suit was filed by the plaintiff to defeat the pending declaratory suit and hence compromising justice at the expense of innocent thoughts.

Whereas, no dispute arises with regard to the applicant being a beneficiary of a judgment passed against the defendant in the lower court at Oyugis, it is clearly noticeable from a copy of the judgment exhibited herein by the applicant that the plaintiff was not a party to that suit even though it may have been the insurer of the ill-fated vehicle as indicated in ground 10 of the application. It is without doubt that the applicant’s victory in the lower court ignited the declaratory suit against the plaintiff (i.e. SPMCC No.78 of 2018 at Oyugis) in terms of Section 10 (2) of the Insurance (Motor-Vehicle Third Party Risk) Act Cap 405 Laws of Kenya) which imposes a duty upon an insurer to satisfy judgments against persons insured.

[7]The declaratory suit against the plaintiff and another was filed on 25th July 2018 (see annexture marked “GKM 9” of the supporting affidavit) while this present declaratory suit by the plaintiff against the defendant was filed herein on 11th April 2018. There is therefore no discernable truth in the allegation by the applicant that this suit was filed by the plaintiff to defeat the pending declaratory suit against itself by the applicant and hence, compromise justice.

Indeed, the applicant concedes in her ground five (5) of the application that she is not privy to the contractual arrangement between the plaintiff and the defendant. She does not demonstrate how she will suffer an injustice if this suit proceeds in her absence as a party. Her grounds for the application merely show that she is apprehensive that should this suit succeed against the defendant she may as well fail to enjoy the fruits of her judgment in the lower court. This apprehension is not sufficient ground for her being enjoined as an interested party in this suit and more so, considering that she would have the right to pursue the defendant personally for the damages awarded to her as the administratrix of her late son’s estate.

[8]In the Concord Insurance Co. Ltd (under statutory management case (see 2015 e KLR), it was stated that:-

“After all, the concept of interested party is not open ended; it is circumscribed in law, depends on the nature and circumstances of each case ….”

An apprehension such as the one demonstrated herein by the applicant is not one of those factors which can be relied upon by this court in exercising discretion in favour of the applicant. The guiding factor in deciding whether to enjoin a party in a suit is well set out in Order 1 Rule 10 (2) Civil Procedure Rulesto wit, whether the presence of a party is necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit.

[9]In Meme –vs- Republic (2004) 1 EA 124, the Court observed that a party could be enjoined in a matter for the reasons that:-

(i) Joinder of a person because his presence will result in the complete settlement of all the questions involved in the proceedings.

(ii) Joinder to provide protection for the rights of a party who would otherwise be adversely affected in law.

(iii) Joinder to prevent a likely course of proliferated litigation.

In Communications Commission of Kenya & others –vs- Royal Media

services Limited & Others Petition No.14 of 2014 (2014) e KLR, the Supreme Court held that:-

“In determining whether the applicant should be admitted into

these proceedings as an interested party we are guided by this court’s decision in theMumo Matemu casewhere the court (at paragraphs 14 and 18) held:-

[An] interested party is one who has a stake in the proceedings, though he or she was not party to the cause “abinitio”. He or she is one who will be affected by the decision of the court when it is made either way. Such a person feels that his or her interest will not be well articulated unless he himself or she herself appears in the proceedings, and champions his or her case”.

[10]If these guidelines are applied in this case, it would follow that the grounds in support of this application do not meet the legal threshold for enjoining the applicant in this suit.

Given that the issues arising herein are essentially based on a contract of insurance in which she is not privy to and that the issues she may wish addressed herein may or ought to be addressed in her declaratory suit against the plaintiff, it is quite clear her presence in this matter would not be necessary for the court to effectually and completely adjudicate upon and settle all questions involved.

Even if the plaintiff has applied for summary judgment against the defendant and the same is granted, it would still be necessary and obligatory for it to legally and factually establish its case against the defendant. In the circumstances, it would not be proper to enjoin the applicant in this matter as doing so will effectively be confirming upon her the duty to defend the suit on behalf of an indolent defendant.

The applicant’s constitutional right to be heard would well be preserved and protected at the hearing of her declaratory suit against the plaintiff and if hearing was completed, she would have no basis to allege a violation of her rights under Article 50 of the Constitution.

[11]For all the foregoing reasons, this court finds that the applicant has failed to establish sufficient grounds for grant of the orders sought.

The application is therefore dismissed with costs to the plaintiff.

J.R. KARANJAH

JUDGE

04. 07. 2019

[Read and signed this 4thday of July, 2019]