[2023] KEHC 25227 (KLR)

Jubilee Assurance Company Ltd v Owaga & another (Suing as the administrators ad-litem of the Estate of Michelle Aittah Owaga (Deceased)) (Civil Appeal E868 of 2023) [2023] KEHC 25227 (KLR) (Civ) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25227 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E868 of 2023

JN Mulwa, J

November 9, 2023

Between

Jubilee Assurance Company Ltd

Appellant

and

Ben Otieno Owaga

1st Respondent

Noel Sheunda Nyonges

2nd Respondent

Suing as the administrators ad-litem of the Estate of Michelle Aittah Owaga (Deceased)

(Being an appeal from the ruling of Hon. L. B. Koech delivered on 4th August, 2023 in Nairobi Chief Magistrates Court Civil Case No. 9296 of 2018)

Ruling

1. I have carefully listened to the Advocates' arguments on the two applications dated 30/08/2023 and 25/09/2023; and also considered the supporting and opposing affidavits.

2. The Applicant/Appellant in the main application seeks stay of execution orders of the decree issued in Nairobi CMCC No. 9296/2018 on 30/08/2023; and a further order by the motion dated 30/08/2023 for review of conditional stay orders issued by A. Vishram J. that a sum of Kshs. 5,500,000/- deposited either in court or in an interest earning account in joint names of the parties Advocates within 45 days – also as a conditional temporary stay order pending hearing of the notice of motion dated 30/08/2023.

3. The Applicant/Appellant did not fully comply with the said orders, but partially, by remitting a sum of Kshs. 3 million to the Respondent’s Advocates who have confirmed receipt of the money, and holding the same pending the interpartes hearing of the application which has been heard today.

4. The main issues in contestation are, in my view two; -1. The interpretation of Section 5(b) (4) of Cap 405 Laws of Kenya, as to whether the Act limits liability to an insurance company to Kshs. 3 million to one claimant or to several claimants; whose claims arise from one accident.2. Whether interest in a series of claims where the claimants are awarded different quantum of damages should accrue to the cumulative award, or to each of the individual claims.

5. In my view, these are part of the issues that will be determined in the appeal.The court notes that both parties Advocates agree that indeed there is a limit that an insurer must and is obligated to pay to claimants if the court finds it liable.

6. In this case in a declaratory suit filed by the three claimants in Nairobi CMCC No. 9296 of 2018, the court made a finding that the insurer, Jubilee Assurance Co. Ltd was bound to settle the 3 claims, and a declaration issued to that effect in the total sum of Kshs. 4,116,000/= plus interest at court rates and costs.

7. By the decree sought to be stayed, the total awards amount to Kshs. 7,700,608/=. The argument by the appellant is that the interest ought to accrue to each award to each of the Respondents as opposed to the cumulative award. The respondent on the other hand is of the contrary view that each award to the three claimants ought to accrue interest separately; this is the bone of contention.

8. Upon considering the opposing parties interests and prejudices, this court is of the opinion that the applications are best resolved in the manner here below, as the applicant awaits further redress and reliefs upon the Appeal being heard and determined: -1. The sum of Kshs. 3,000,000/= deposited with the Respondents Advocates; Paul Mungla & Co. Advocates be released to the Respondents through their advocates on the basis of their individual awards as follows:1st Respondent - Kshs. 1,710,000/=2nd Respondent - Kshs. 1,501,500/=3rd Respondent - Kshs. 750,000/=Total - Kshs. 4,116,000/=

9. However, the sum remitted to their Advocates is less by Kshs. 1,116,000/=. In the circumstances, I direct that the same be released as to the claimants as their advocates may deem fit and appropriate pending hearing and determination of the appeal. The court further notes that the above sums are only the judgment sums without interest and costs.

10. In my considered view, the amount of Kshs. 3,000,000/= remitted to the Respondents Advocates is sufficient security for the due performance of the decree, as none of the parties have doubted the Appellant’s ability to pay the balance of over Kshs. 4 million should the Appeal not be successful.

11. Let the appellant file the Record of Appeal within 60 days; and return for taking directions of the same on the 29/02/2024. Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 9TH DAY OF NOVEMBER, 2023. JANET MULWAJUDGE