https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8414

Kemboi v Mbiti (Miscellaneous Application E180 of 2025) [2026] KEHC 8414 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 8414 (KLR) Republic of Kenya In the High Court at Eldoret Miscellaneous Application E180 of 2025 JRA Wananda, J May 22, 2026 Between Jackline Cherono Kemboi Applicant and Geoffrey Kisanya Mbiti Respondent Ruling 1.The Application the subject of this Ruling is the Notice of Motion dated 5/07/2025 filed through Messrs Kigen W. J & Co. Advocates, seeking orders as follows:i.[……….] spentii.[……….] spentiii.That there be stay of proceedings and stay of execution in Eldoret Chief Magistrate’s Court Civil Case No. E683 of 2022 (Geoffrey Kisanya Mbiti =vs= Jackline Cherono & Tony Kipchumba) pending the hearing and determination of Eldoret Chief Magistrate’s Court Civil Case No. E489 of 2025 (Jackline Cherono Kemboi = vs = Occidental Insurance Company Limited & Another).iv.Costs of this Application be in the cause. 2.The Application is supported by the Affidavit sworn by the Applicant, Jackline Cherono Kemboi, who deponed that the Respondent filed a suit, namely, Eldoret Chief Magistrate’s Court Civil Case No. E683 of 2022, against the Applicant over an accident that involved the Respondent and the Applicant’s motor vehicle registration number KDG 571K, in which suit the Respondent obtained Judgment against the Applicant for the sum of Kshs 306,750/- plus costs. She deponed that at the time of the accident, on 11/07/2022, her said motor vehicle was under a valid comprehensive insurance policy cover taken with Occidental Insurance Co. Ltd (insurer) and the insurer was, as such, duty bound to settle the Respondent’s claim but due to failure by the insurer to settle the Judgment/decree, the Respondent commenced the process of execution against the Applicant. She deponed that as a result, she filed a declaratory suit, namely, Eldoret Chief Magistrate’s Court Civil Case No. E489 of 2025, seeking orders compelling the insurer to settle the Judgment, which suit shall be rendered nugatory if execution proceeds. 3.In response, the Respondent, through Messrs G.K. Okara & Co. Advocates, filed the Replying Affidavit sworn on 25/10/2025 in which he basically deponed that pendency of a declaratory suit against an insurer does not operate as a stay of execution nor does it discharge the Judgment-debtor from his/her primary duty to satisfy a decree. He thus urged that the declaratory suit is a separate suit that cannot act as a shield to delay or frustrate execution of a valid decree, and that the law does not provide for stay of execution of a decree pending the hearing and determination of an entirely separate suit. 4.The Applicant, upon seeking and obtaining the Court’s leave, filed the Supplementary Affidavit which she swore on 15/11/2025, whose perusal however reveals that it was a wholly unnecessary request. I say so because all it does, apart from citing the provisions of Section 10(1) of the Motor Vehicles Insurance Third Party Risks) Act, is to repeat what was already been stated in the Supporting Affidavit. 5.The parties then filed written Submissions. The Applicant’s Submissions is dated 15/11/2025, while the Respondent’s is dated 13/01/2026. 6.I do not however find it necessary to recount the contents of the respective Submissions as, again, apart from citing authorities for and against, they are both basically restatements of the respective Affidavits filed by the parties. Determination 7.The issue that calls for determination in this matter is evidently, “whether an order should be issued in favour of the Applicant (insured) staying execution against her of the Judgment obtained by the Respondent against her, pending the hearing and determination of the Applicant’s separatory declaratory suit filed against the insurer”. 8.An insurer’s duty to settle a monetary decree obtained against its insured in a road accident suit involving an insured motor vehicle, is anchored on the provisions of Section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act, which stipulates as follows:“ 10.Duty of insurer to satisfy judgments against persons insured(1).If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of Section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.” 9.An insured is therefore, no doubt, wholly entitled to seek a declaration that its insurer is bound to settle a decree obtained against the insured if covered under the policy. However, generally, that statutory right of action cannot bar a holder of a valid Court decree from executing that decree directly against the insured. 10.In this case, although a copy of the Plaint said to have been filed in the declaratory suit has been exhibited, no Statement of Defence filed by Messrs Occidental Insurance Co. Ltd, the alleged insurer of the Applicant’s subject motor-vehicle, has been exhibited, nor has any evidence been produced to indicate that the insurer was served with Summons and/or entered appearance. In the circumstances, I cannot ascertain whether the insurer denies or disputes its alleged duty to settle the decree, and if it does, what grounds it advances, or whether the non-settlement is simply a case of delay due to bureaucracy or insolvency. The Applicant has not also given any hint. 11.However, assuming that the insurance cover alleged by the Applicant is valid and undisputed, then clearly, the Applicant may have a genuine cause to complain, since Section 10(1) above grants her a cause of action against the insurer. The Applicant, by exhibiting a copy of the Notice to Show Cause served upon her indicating an impending committal to civil jail should she not pay the decree, has demonstrated that execution against her is imminent. It is of course unfortunate that the Respondent, the holder of a lawful Judgment finds himself caught up in the tussle between the Applicant and the insurer yet he is not party to the insurance contract between those two. 12.The issue whether a decree-holder can be stayed from executing his lawful decree against a Judgment-debtor pending determination of a declaratory suit filed by the insured (Judgment-debtor) against his insurer has been handled by Kenyan Courts on numerous occasions. The Applicant relies on 3 Court decisions which she argues, support grant of such stay. 13.The first decision relied upon by the Applicant is Charles Makenzi Wambua v Africa Merchant Assurance Co. Ltd & another [2014] KEHC 891 (KLR), in which Aburili J remarked that:“To allow the third/interested parties execute decrees against the plaintiff in my view, in the glare of the provision of Section 10 (1) would be occasioning him unnecessary hardship and not to mention, would be to assist the defendant avoid a contract whose terms are expressly dictated by statute and therefore rendering the statute impotent. ...……………………………………………………………………………………………………………… The interested parties being persons covered under Section 4 (1) of the Act-Cap 405 Laws of Kenya, the liability of the defendant is preserved as against them and they could as well, sue the defendant by way of a declaratory suit to recover the sums due as per the decrees in their favor.However, the plaintiff has opted to carry that burden on their behalf. If the suit herein is determined in favor of the plaintiff, then the interested parties stand to benefit directly. They need not file any other declaratory suit against the defendant. For that reason therefore, time and resources, will also be saved for the interested parties. Therefore, no prejudice will be caused to them.The upshot of all this is that I am persuaded that the plaintiff has satisfied the condition for granting stay of execution of all judgments and decrees against the plaintiff arising from the accident …………….. pending hearing and determination of this suit.” 14.The second decision cited by the Applicant is by G.V. Odunga J (as he then was), made in the case of Njeru Patrick v Invesco Assurance Company Limited; Granton Ukonde Mulala (Interested Party) [2021] KEHC 2311 (KLR), in which he held that:“ 25.……., the Applicant seeks stay of execution of the decree in the primary suit pending the determination of this suit. However, whereas an insured may well be entitled to seek a declaration that its insurer is entitled to settle the claims covered under the insurance policy, that statutory right of action does not bar a person who is injured from executing the decree issued in his favour against the insured directly. 26.However, one cannot close his eyes to the fact that the Applicant is in effect seeking that the Defendants pays the Interested Party the sum due to the Interested Party from the Applicant. Unless some measure of protection is given to the Applicant, his suit as presently framed may well be an academic exercise. To that limited extent I agree with the reasoning in the case of Charles Makenzi Wambua vs. Africa Merchant Assurance Co. Ltd & Another [2014] eKLR ……………………………………………………………………………………………………… 28.It is my view that in these circumstances, justice would be done to all the parties if there was a stay of proceedings for a short period to enable the Applicant prosecute his case. Accordingly, I hereby grant an order staying execution in Kithimani PMCC No. 317 of 2016 pending the determination of this suit on condition that the Plaintiff/Applicant secures a bank guarantee or any other form of security, movable or immovable, for the said decretal sum as security for the due performance of the decree or order as may be ultimately be binding on him within 30 days of this order. In default the stay will automatically lapse.” 15.The third case invoked by the Applicant is again by G.V. Odunga (as he then was), made in the case of Ndonye v Invesco Assurance Co. Ltd [2022] KEHC 416 (KLR), in which he ordered as follows:“ 32.It is my view that in these circumstances, justice would be done to all the parties if there was a stay of proceedings for a short period to enable the Applicant prosecute his case. Accordingly, I hereby grant an order staying execution of the suits set out in the Motion pending the determination of this suit on condition that the Plaintiff/Applicant prosecutes his case within 60 days from the date of this ruling. In default the stay will automatically lapse.” 16.I am also aware of the decision of H. Omondi, J (as she then was) made in the case of Apollo Ogunda vs. Africa Merchant Assurance Co. Ltd & 4 Others, in which she held as follows:“The tragedy and prejudice is that, were this suit against the Respondents to succeed, and were this Court to find that the Respondent has no basis for repudiating the contract, then I don’t think the Applicant would even have a way of recovering the property which will already have been sold to satisfy the judgment on CMCC No. 666 of 2011.” 17.Another decision with a similar finding is by O. Sewe J made in the case of Transeast Limited v Trident Insurance Company Limited; Michael Mutunga & John Katuta Mustisya (suing for and on behalf of the estate of Rosemary Nziza Mutisya - Deceased) (Interested Party) [2021] KEHC 1685 (KLR), in which she found as follows:“(17)………, the plaintiff has demonstrated that an attachment has been proclaimed over its property and that the same is on the verge of being sold in execution of the lower court’s decree. I am therefore satisfied that the plaintiff has shown that it stands to suffer irreparably should the attached property be sold in execution. I accordingly agree with the position taken by Hon. Omondi, J. (as she then was) in Apollo Ogunda vs. Africa Merchant Assurance Co. Ltd & 4 Others (supra) …..…………………………………………………………………………………(18)Thus upon balancing the interests of the plaintiff, the defendant and the interested party, I am convinced that no inconvenience or prejudice will be visited on either the defendant or the interested party for which costs and interest would not be adequate recompense. On the other hand, the plaintiff risks suffering immense prejudice should the attached property be sold in execution in respect of a peril for which it took out an insurance cover with the defendant. ……………………………. 18.There are however also numerous other decisions in which the Courts have made or reached contrary findings to the above. For instance, H.M. Nyaga J, in the case Kimani v Monarch Insurance Company Limited; Muigai (Interested Party) [2024] KEHC 8362 (KLR), while disagreeing with the position taken in the above cases, held that.“ 29.I wish to reiterate this as my position. In doing so I do respectfully disagree with my sister and brother judges who have held views to the contrary. 30.Let’s look at a similar scenario. Once a judgment in a primary suit is entered against defendant, the Plaintiff, on his own, has the right to file a declaratory suit against the Insured company. He cannot, in that suit, seek to join the Insured who he had sued in the primary suit. The issues between the Plaintiff and the Interested Party were determined in the primary suit and cannot be canvassed again. By the same analogy, I find that the Interested Party has no business in the suit between an Insurer and Insured. 31.Looking at the Plaint, there is no prayer sought against the interested party. ..... 32.Courts must be wary of suits of this nature which have become a common occurrence. It is very likely that an insurer and an insured can collude to file a suit of this nature. Once stay is granted, the Interested Party has nowhere to turn to. He/she has no control of the suit between the plaintiff and defendant. 33.The primary responsibility of settling a decree lies with the party against whom it is issued. Dragging the Interested Party to this suit was, in my opinion, improper.......................................................................................................................................... 35.This is not an appeal against the decision in the primary suit. I don’t see how a defendant can file a fresh suit and seek to stay another suit from which he never appealed. 36.I agree that Section 5 of the Act is meant to protect the insured and the 3rd party. What I don’t agree with is that the said section can be used by an insured to stay a decree issued against him. He should satisfy the decree and then seek compensation from its insurer, by enforcing the contract between them. 37.It is my opinion that if such applications as the present one are to be allowed, then it is very conceivable that no judgment and decree arising out of an accident covered by an insurance company will ever be executed. Is this what the Act had in mind? I do not think so. 38.Perhaps it is time for the issue to be determined by the Court of Appeal or even the Supreme Court, so that the varying decisions can be streamlined.” 19.Aburili J, in the case of Jenipher Anyango Oloo v Buzeki Enterprises Limited & another [2021] eKLR, in an apparent departure from her earlier position in Charles Makenzi Wambua v Africa Merchant Assurance (supra), also held as follows: “ 34.The 1st respondent was thus justified in seeking a declaratory judgment against the 2nd respondent, its alleged insurer. I also note that the judgment delivered in the Siaya PMCC 75 of 2016 has not been challenged by way of an appeal or review. However, whereas an insured may well be entitled to file for a declaration that its insurer is obliged to settle decree against the insured under the insurance policy, that statutory right of action does not bar a person who is injured from executing the decree issued in its favour against the insured directly as was held in the case of Dolk Limited (supra). 35.In the circumstances, it is my view that the trial court erred in staying execution of decree issued in favour of the appellant against the 1st Respondent insured, pending the hearing and determination of the declaratory suit. …………, because the filing of a declaratory suit is no bar to execution of decree by a genuine decree holder.” 20.G.V. Odunga J (as he then was), also in an apparent departure from his earlier position in Njeru Patrick v Invesco Assurance (supra), in the case of Dolk Limited v Invesco Assurance Company Limited & 5 Others [2018] eKLR, while ruling out applicability of Order 22 of the Civil Procedure Rules (stay of execution of decrees) to applications of this nature, held that:“ 13.……... The applicant herein is not seeking judgement against the interested party. It is seeking judgement against its insurer, the Defendant. There is no judgement which the insurer has obtained against the applicant which is sought to be stayed in these proceedings. It follows that the said provision is inapplicable.…………………………………………………… 8.…………...., whereas an insured may well be entitled to seek a declaration that its insurer is entitled to settle the claims covered under the insurance policy, that statutory right of action does not bar a person who is injured from executing the decree issued in its favour against the insured directly.” 21.Similarly, Gikonyo J, in the case Muthuri Ntara & Another v Francis Mworia Igweta [2016] eKLR, though addressing the effect of a moratorium placed on an insurance company, made findings relevant herein, as follows:“ 1.Whether the Appellants were entitled to protection from execution pursuant to orders issued by the High Court in HCCC NO. 465 of 2011 (OS) at Milimani Law Courts.I reckon that the Respondent is neither a policy holder nor a creditor of Blue shield Insurance Company. He is merely a decree-holder against the Appellants jointly and severally. Therefore, a moratorium issued to protect the Insurance Company whose fortunes have now dwindled; leading to statutory management does not operate as stay of execution of decrees against the insured. A moratorium is declared by the Statutory Manager ……… and it protects the insurer against claims by the policyholders and creditors of the insurer. Accordingly, mere declaration of a moratorium does not mean an automatic stay of execution against the insured; the insured must prove before the trial court upon lawful grounds that a stay of execution is merited.………………………………………………………………………………………....(9)It should be appreciated that the Respondent’s suit and decree is not a declaratory suit or decree against the insurer. It is a decree against the tortfeasor. Based on these brutal echoes of the law, the appeal would still fail. …………………..” 22.In the same breath, Mbogholi-Msagha J, in the case of Jane Wanjiru Mwangi v Explico Insurance Company Limited: Duncan Odhiambo Owino (Interested Party/Respondent [2021] eKLR stated as follows:“ 8.It is apparent the applicant is seeking a declaratory judgment against the defendant, her alleged insurer, and not against the interested party. It is also apparent that the judgment delivered in the primary suit has not been challenged by way of an appeal or review. 9.That notwithstanding, I find that while the applicant is entitled to file a declaratory suit against the defendant pursuant to the provisions of the Insurance (Motor Vehicles Third Party Risks) Act, in a bid to have the insurer settle any pending claims arising out of an insurance policy entered into between an insurer and its insured, this does not necessarily bar a decree holder from pursuing the decretal sum from an insured person, such as the applicant in this instance. ……….………………………………………………………………………………. 10.I am convinced that even after the applicant herein satisfies the decretal sum in the primary suit, she can still pursue the present declaratory suit against the defendant and seek compensation therefrom. In my view, it would not be in the interest of justice to hinder the respondent from realizing the fruits of his judgment.” 23.G.V. Odunga J (as he then was), again, in the case of Peter Kilonzo Kioko v Monarch Insurance Co. Ltd; Kisakwa Ndolo King`oku (Sued as Legal Representative of the Estate of Mwania Kisakwa - Deceased (Interested Party) [2021] eKLR also stated as follows:“The applicant herein is not seeking judgment against the interested party. It is seeking judgment against its insurer, the Defendant. There is no judgment which the insurer has obtained against the applicant which is sought to be stayed in these proceedings … However, whereas an insured may well be entitled to seek a declaration that its insurer is entitled to settle the claims covered under the insurance policy, that statutory right of action does not bar a person who is injured from executing the decree issued in his favour against the insured directly.” 24.There is also the decision of W. Karanja J, in the case of James Ng’ang’a Njenga V Commissioner of Insurance & 3 Others [2011] eKLR, in which she held that:“As a starting point in this aspect, it is important to note that the root of this petition is a lawfully obtained court decree by the 3rd party against the petitioner. In pursuing settlement or execution of the said decree, the 3rd party was actually exercising her right. She was not seeking to unlawfully dispossess the petitioner of his property. Just like the petitioner, she too has fundamental and inherent rights under the Constitution which need to be protected and respected including her right to the protection of the law under S.70(c) of the now repealed Constitution. Indeed, the proviso to that article provides categorically that the said rights are“subject to such limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest”By trying to invoke the provisions of Section 70 of the constitution in this matter to avoid settlement of a court decree, the petitioner is actually seeking to trample on the same rights belonging to the 3rd party. ................................Would this court therefore allow the petitioner’s rights to trump those of the 3rd party? Absolutely not. Both of them are protected by the same law and Constitution and neither of them should be accorded a more superior place than the other. They are both entitled to equal protection of the law.It is instructive to note that the 3rd party herein has a judgment and decree which has not been challenged. It therefore forms a judgment in rem and she is legally at liberty to execute or enforce it. Execution of a valid court decree cannot amount to a violation of the judgment /debtor’s property rights ....................................................................................................................................................”. 25.There is also the decision of Limo J, in the case of Ndaka v Kenya Orient Insurance Limited & another; Muthoka & another (Interested Parties) (Suing as the Administrators of the Estate of the late David Nzine Muthoka) [2024] KEHC 5448 (KLR), in which he held that:“ 1........... I have also considered the response made by the Interested Party who is the decree holder in Kitui CMCC No. E124 of 2021. The Application as framed is seeking a Stay of Attachment and Sale of attached property belonging to the Applicant pending the determination of declaratory suit. The attachment is brought about by the execution carried out by the Interested Party vide Kitui CMCC No. E124 of 2021. ................ 2................. This court finds that the applicant has not established sufficient grounds to warrant this court exercising it discretion in his favour because for one, the declaratory suit is between him and his insurers, the Respondents herein. 3.The Interested Party is not privy to the dispute/ breach of any contractual agreement as between the Applicant and his insurers. 4.Secondly, the Interested Party being a successful party in Kitui CMCC No E124 of 2021 is entitled to the fruits of Judgment. This court finds that any loss suffered or occasioned to the Applicant due to breach of any contractual agreement as between him and his insurers will be covered by party at fault. 5.The Interested Party has not been faulted in any way in the execution process carried out. The same is lawful and I do not find sufficient reasons advanced to stay it. ....” 26.The above decisions, all being from Courts of equal jurisdiction as this instant one, are not binding on me, and are only persuasive as authorities. Speaking for myself however, I agree with the latter view that there is no clear law that expressly allows the Courts to issue an order staying execution of a Court decree against the insured (Judgment-debtor) pending determination of a declaratory suit filed by the insured against his own insurer. The primary obligation of settling the decree falls squarely on the insured and in the event that the insurer fails to satisfy the decree, the insured is called upon to satisfy the same. The mere fact that the insurer is bound both contractually and statutorily to satisfy the decree does not therefore absolve the insured from meeting his obligations under the tort of negligence. Nothing also prevents the insured from settling the decretal sum and then suing the insurer for compensation or reimbursement. 27.The above situation is a sad one in that innocent insurance policy holders who have been religiously paying premiums and have all along been under the impression that they were fully cushioned from execution of decrees, suddenly find themselves at the mercy of Auctioneers due to delays, bureaucracy or even insolvency of insurance companies, more often than not, as a result of internal mismanagement, yet the concerned authorities simply “fold their hands and look the other way” unbothered. Unfortunately for such policy-holders/judgment-debtors, the decree-holders, too, have a right to enforce their Judgments and they cannot be punished for mistakes of insurers by being barred from executing the valid decrees. This is a sad state of affairs and it is time that Legislature moves to make changes to the law to protect “innocent” policy holders finding themselves in such situations. As a Court of law, particularly the High Court, considering the extent of its “unlimited” jurisdiction, I cannot afford to simply sit back and term myself as helpless to extend some protection to the “innocent” Applicant, who has approached the Court for a temporary reprieve. In the interest of justice, I will grant the stay of execution but for a limited period within which the Applicant must take steps to expedite hearing of the declaratory suit. Noting that the decretal sum as indicated in the Notice to Show Cause is Kshs 413,586/-, I will also impose the condition that the Applicant deposits a reasonable portion thereof as security. 28.No grounds for the prayer for stay of proceedings has been offered and I decline it. Final Orders 29.I therefore allow the Applicant’s Notice of Motion dated 5/07/2025 in the following terms:i.There is hereby issued an order staying execution of the Judgment and/or decree issued in Eldoret Chief Magistrate’s Court Civil Case No. E683 of 2022 pending hearing and determination of Eldoret Chief Magistrate’s Court Civil Case No. E489 of 2025 (declaratory suit).ii.The above order of stay of execution shall however remain in force for only a period of eight (8) months, that is to say, up to 22/01/2027, in the first instance, within which period the Applicant must take serious steps to cause the expeditious trial and/or hearing of the declaratory suit.iii.The order of stay of execution granted above shall lapse upon expiry of the said period of eight (8) months whether or not the declaratory suit will have been determined unless the period is extended by this Court upon the Applicant convincing the Court that she has taken serious and active steps to cause the trial and/or hearing of the suit to be expedited.iv.The above order of stay of execution shall also only remain in force on the condition that the Applicant shall within a period of ninety (90) days from the date hereof, deposit a sum of Kshs 300,000/- in an interest earning bank account to be opened in the joint names of the firm of Advocates on record for the parties herein, which amount shall be accessible to the Respondent in settlement of the decree should the declaratory suit fail, or for any other eventuality as the relevant Court shall direct.v.Each party shall bear his/her own costs of these proceedings. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MAY 2026……………..……..WANANDA JOHN R. ANUROJUDGEDelivered in the presence of:Mr. Kigen for the ApplicantMs. Chebet h/b for Mr. Okara for the RespondentC/A: Rodgers Tshombe