[2014] KEHC 3195 (KLR)
The court found that granting a stay of execution would unfairly prejudice the interested party, who is entitled to the fruits of his judgment from the lower court. The applicant had the opportunity to involve the insurer during the lower court proceedings but failed to do so. The insurance arrangement between the...
Source-derived case information.
- Citation
- [2014] KEHC 3195 (KLR)
- Parties
- Plaintiff: Joseph Zachary Machogu Abuta; Defendant: Kenindia Assurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 116 of 2012
- Procedural Posture
- Stay Application / Ruling on Interlocutory Application for Stay of Execution
- Outcome
- application dismissed with costs to the interested party
- Judges
- HK Chemitei
- Legal Topics
- Stay of Execution, Declaratory Suit, Indemnity, Motor Vehicle Insurance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Zachary Machogu Abuta
Plaintiff
Kenindia Assurance Co. Ltd
Defendant
Procedural Posture
Stay Application / Ruling on Interlocutory Application for Stay of Execution
Legal Issues
- 1 Whether a stay of execution should be granted pending determination of the declaratory suit.
- 2 Whether the applicant is entitled to prevent the interested party from enjoying the fruits of the lower court judgment pending the outcome of this suit.
Ratio Decidendi
The court found that granting a stay of execution would unfairly prejudice the interested party, who is entitled to the fruits of his judgment from the lower court. The applicant had the opportunity to involve the insurer during the lower court proceedings but failed to do so. The insurance arrangement between the applicant and the respondent is a separate matter and does not justify depriving the interested party of his judgment. If the applicant succeeds in the declaratory suit, he can be indemnified by the respondent at that stage. Therefore, the application for stay of execution was disallowed.
Court Disposition
application dismissed with costs to the interested party
Orders
- The application for stay of execution is disallowed.
- Costs awarded to the interested party.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CIVIL CASE NO. 116 OF 2012
JOSEPH ZACHARY MACHOGU ABUTA................................PLAINTIFF
VERSUS
KENINDIA ASSURANCE CO. LTD.......................................DEFENDANT
R U L I N G
The application dated 20-6-2012 prays that pending the determination of this suit there be stay of execution in Nyando PMCC 171 of 2007 between Edward Kabaka Amiller and Joseph Z.N.M. Abuta. It is supported by the annexed affidavit of the applicant sworn on 20-6-2012.
Basically, the applicant was sued by Mr. Abuta, who was brought into this case as an interested party at the above quoted Nyando court claiming inter alia damage for an accident which occurred on 30-12-2005. Apparently and according to the applicant it was the defendant/respondent that was insuring his motor vehicle Reg. No. KAN 967S at that moment. The matter proceeded to full trial where the court awarded the sum of Kshs. 25,000/= as general damages to the interested party.
From the proceedings herein the respondent failed to indemnify the applicant forcing it to file this declaratory suit.
The question therefore is, should the interested party await the outcome of this suit so that he can claim the fruits of judgment from the lower court? I do not think that this would be fair. The applicant had all the time during the trial at the lower court to engage the respondent. Further, the insurance cover or understanding between the applicant and the respondent has nothing to do with the interested party herein.
In any case should the applicant succeed here then he shall be adequately indemnified by the respondent.
For the above reasons, I do disallow this application with costs to the interested party.
Dated, signed and delivered at Kisumu this 23rd day of July, 2014.
H.K. CHEMITEI
JUDGE