[2022] KEHC 13869 (KLR)

Jubilee Insurance Company Limited v Ombuna (Civil Appeal 1 of 2017) [2022] KEHC 13869 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13869 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal 1 of 2017

RL Korir, J

October 19, 2022

Between

Jubilee Insurance Company Limited

Appellant

and

Jared Ombuna

Respondent

(Being an Appeal from the Ruling of Hon. G. Kiage Resident Magistrate in Civil Suit Number 71 of 2016 - Bomet delivered on 21st December 2016)

Judgment

1. This appeal has its roots in a road accident which occurred some 12 years ago. following the accident, the plaintiff (the respondent herein) filed suit being Bomet PMCC No 183 of 2010 against Daniel Oriwa Aguda who was the owner of the accident motor-vehicle registration number KAZ 582S and who in turn was insured by the appellant herein.

2. The primary suit subsequently led to the various applications and suits referred to in this appeal. Neither party attached the proceedings of Bomet PMCC No 183 of 2010 or the Judgment thereof. However it was clear from their pleadings, an undisputed fact that the Judgment in the primary suit was delivered on February 18, 2013.

3. The appellant herein filed a declatory suit at the High court in Kericho being HCCC No 103 of 2011 (Kericho declatory suit) where it sought to avoid satisfying the policy issued to its insured for reasons listed in their plaint dated July 26, 2011.

4. Sometime in the year 2016, the respondent filed a declatory suit in the Principal Magistrate’s court in Bomet being PMCC No 71 of 2016 (Bomet declatory suit) that sought a Declaration that the appellant was obliged and liable to satisfy the Decree and costs of the Primary Suit.

5. The appellant thereafter moved the Principal Magistrate’s court in Bomet under a notice of motion application dated August 13, 2016 where he sought stay of proceedings in the Bomet declatory suit No 71 of 2016 pending the hearing and determination of the Kericho declatory suit. In a ruling delivered on December 21, 2016, the trial court dismissed the application by stating that the appellant had not justified the grant of the orders sought. This is the ruling that is the subject of this appeal.

6. Thereafter the appellant filed an application in this court dated January 16, 2017 that sought stay of proceedings in Bomet PMCC No 71 of 2016 pending the hearing and determination of this appeal. The same was granted on condition that the appellant deposited the decretal sum in an interest bearing account in a reputable bank in the joint names of the counsel for the appellant and respondent.

7. Being aggrieved by the decision of the trial court of December 21, 2016, the appellant appealed against the ruling on the following grounds:-i.The learned trial magistrate erred in law and in fact in holding that the declatory suit was filed after the determination of the primary suit and that therefore the application could not stay what had been determined whereas the declatory suit had been filed on November 4, 2011 while judgments in the primary suit was delivered on 2013. ii.The learned trial magistrate erred in law and in fact in failing to appreciate that the application dated August 13, 16 sought to stay proceedings in the declatory suit filed by the plaintiff and not the judgment and decree obtained in the primary suit.iii.The learned trial magistrate erred in law and in fact in failing to appreciate that in disallowing the application dated August16, the appellant would be liable to settle damages in the primary suit despite it having filed a suit filed (Kericho HCCC No 103 OF 2011) seeking a declaration that it is entitled to avoid the policy thus occasioning a failure of justice.ivThe learned trial magistrate grossly misdirected himself in treating the grounds and submissions and the law pertaining thereto before him superficially and consequently came to a wrong conclusion on the same.vThe learned trial magistrate misdirected himself in ignoring the written submissions presented and filed by the appellant in its entirety.

The Appellant’s Case. 8. Through a supporting affidavit sworn by Collins Nyaema, the appellant stated that it entered into an insurance contract, policy number P/NRB/2010/2010/50894 with Daniel Orawa Aguda(hereinafter referred to as the insured) in respect to motor vehicle registration Number KAZ 582S. That on October 13, 2010, the said Motor Vehicle was involved in an accident and as a result the respondent herein filed a suit being Bomet PMCC No 183 of 2010 against the insured seeking damages. It was the appellant’s case that the respondent obtained Judgment on February 18, 2013.

9. The appellant stated that the respondent filed a declatory suit (Bomet PMCC No 71 of 2016) that bound it to settle the Judgment obtained on February 18, 2013.

10. It was the appellant’s case that it had filed a declatory suit on November 4, 2011 being Kericho HCCC No 103 OF 2011 Jubilee Insurance Company Limited v Daniel Oriwa Aguda. That it sought a declaration that it was not bound to satisfy the policy to the insured due to a breach of terms, conditions and warranties.

11. The appellant stated that if the declatory suit (Bomet PMCC 71 of 2016) proceeded for hearing and was determined before the hearing and determination of the other declatory suit (Kericho HCCC No 103 of 2011) then it would be adversely affected as it would be liable to settle any damages awarded in the parent suit hence making the declatory suit in Kericho nugatory. That it would be in the interest of justice to stay the proceedings in Bomet PMCC 71 of 2016 pending the hearing and determination of Kericho HCCC No 103 of 2011.

The Applicant’s Submissions. 12. The appellant submitted that it filed the declatory suit in Kericho to get a declaration that it was not bound to settle any damages arising from the accident of their insured’s vehicle registration number KAZ 582S. That their insured breached the terms of the insurance policy by allowing his motor vehicle to be used for the purpose of carrying fare paying passengers and was also being used for hire and reward.

13. It was the appellant’s submission that it expeditiously filed the declatory suit in 2011 before the Judgment in the primary suit Bomet PMCC No 183 of 2010 which was delivered on 18th February 2013. It relied on Sections 1A, 1B, 3A and 6 of the Civil Procedure Act

14. The appellant submitted that according to Section 6 of the Civil Procedure Act, it had proved the existence of another suit with the related subject matter to Bomet PMCC 71 of 2016. That the plaintiff in Kericho HCCC No 103 of 2011 was the insurer of the defendant in the primary suit Bomet PMCC 183 of 2010 who was found liable in the said claim. That it was therefore necessary that there be a stay of proceedings in Bomet PMCC 71 of 2016 until the contractual relationship between it and its insured was determined. It relied on the case of Jadva Karsan v Harnam Singh Bhogal1952 EACA 74 to support its submission.

15. It was the appellant’s submission that the declatory suit in Kericho was filed much earlier than Bomet PMCC 71 of 2016. That the respondent should have waited for the outcome of the Kericho suit before commencing on his declatory suit in Bomet. It relied on the case of Jubilee Insurance Company Limited v Penninah Mwongeli Musili (2016) eKLR to support its submission.

Respondent’s Submissions 16. The respondent submitted that the primary suit was defended by the appellant. That during the pendency of the primary suit, the appellant did not seek stay orders to disown the policy they issued to their insured. It was his further submission that the appellant was duty bound to stay the primary suit so that the issue of their insured’s policy would be determined at that stage.

17. It was the respondent’s submission that the appellant has not stated what became of their declatory suit in Kericho, Kericho HCCC No 103 of 2011. That the appellant did not seek stay orders in the Kericho suit. It was his further submission that the appellant slept on his rights and only woke up when the respondent’s filed their declatory suit.

18. The respondent submitted that the conduct and behaviour of the appellant demonstrated their unwillingness of prosecuting the present appeal. That the appellant was using this court to the disadvantage of the respondent. It was his further submission that the appellant got stay orders in 2017 and has been content to the extent of not prosecuting this appeal.

19. I have read through and considered the Record of appeal dated November 20, 2020, the appellant’s Written Submissions dated June 26, 2022, and the respondent’s Written Submissions dated July 28, 2022 and the only issue for my determination is whether the applicant should be granted the order for stay of proceedings in Bomet PMCC No 71 of 2016.

20. In its appellate role, this court also has a duty to review the evidence adduced before it and satisfy itself that the decision reached was well founded. See case of Selle & Another v Associated Motor Boat Co Ltd and others (1968) EA 123.

21. With respect to stay of proceedings, the appellate court is guided by well settled principles. These principles were well articulated in the case of Global Tours & Travels Limited; Nairobi Hc Winding Up Cause No 43 of 2000 where Ringera J (as he then was) held:-“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously”.(See also HMI v KBH [2021] eKLR)

22. Each case must however be considered on its own facts. As stated by the court of appeal in the case of David Morton Silverstein v Atsango Chesoni(2002) eKLR:-“The court is not laying down any principle that no order for stay of proceedings will ever be made; that would be contrary to the provisions of rule 5 (2) (b) of the court's own rules. But as the court pointed out in the case we have already cited, each case must depend on its own facts and the facts of this particular case before us, as were the facts in the earlier case, do not show that the appeal will be rendered nugatory if we do not grant a stay”.

23. I have perused through the trial court proceedings and the record of appeal and I have noted that this appeal was filed on January 11, 2017. I have equally noted from the trial court proceedings that the Bomet declatory suit was stayed pending the determination of this appeal.

24. It is salient to have note that this is an old appeal that ought to have been heard and determined some time ago. It appears to me that once the appellant got its stay orders on April 25, 2017, it went to sleep. Between the year 2017 and 2022, there was a period of inactivity in the file as the appellant did not move the court to have his appeal heard and determined. It took a notice to show cause for dismissal dated May 30, 2022 to wake it up from its slumber.

25. The appellant has not offered any explanation for the delay of over 5 years which I find to be inordinate and inexcusable. It has also not stated anywhere in its pleadings what became of the Kericho declatory suit since 2011. In the case of Cecilia Wanja Waweru v Jackson Wainaina Muiruri & another(2014), eKLR the court of appeal held:-“There is no set rule as to what constitutes inordinate delay. Whether or not a party is guilty of inordinate delay depends on the circumstances of the case. We are of the considered view that the learned judge in considering the application, should have looked at the appellant’s conduct from the time the appeal was filed up to the date the application for reinstatement was filed……..We have to ask ourselves whether the failure by the appellant to prosecute the appeal in the High court and/or the delay in filling the application for reinstatement constitute an excusable mistake or was it meant to deliberately delay the cause of justice……. Why didn’t she set the appeal down for hearing for almost 14 years”. The reasonable explanation would be that the appellant had been indolent and had slept on her rights. She was only awakened from her slumber by the dismissal of the appeal.”(See also Utalii Transport Company Limited & 3 others v NIC Bank & another(2014) e KLR)1. The appellant submitted that the declatory suit in Kericho was filed much earlier than Bomet PMCC 71 of 2016 and that the respondent should have waited for the outcome of the Kericho suit before commencing on his declatory suit in Bomet. In this respect, I agree with the trial court’s finding that:-“Secondly, I note that although the defendant/applicant claims that the plaintiff/respondent in the present suit was aware of Kericho High court Civil Case No 103/2011 at the time of filing the present suit, there is no indication on record how the plaintiff/respondent became aware of the existence of the said suit, no affidavit was presented in evidence to show that the plaintiff/respondent was served with the pleadings in Kericho High court Civil Case 103/2011 or that he was enjoined as a party to the said suit.”

27. When considering whether or not to grant an order for a stay of proceedings, the court must carefully weigh the rights of each party. In the case of Kenya Wildlife Service v James Mutembei(2019) eKLR, Gikonyo J held that:-“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore the test for stay of proceeding is high and stringent”.

28. In this case, there is the appellant who currently enjoys stay orders and has used those orders for 5 years to the detriment of the respondent. On the other hand there is the respondent who has been hamstrung by those orders and as a result, he is unable to have his declatory suit heard and determined by the trial court. In the case of Mohammed Salim T/A Choice Butchery v Nasserpuria Memon Jamat(2013) eKLR, Kasango J. held that:-“I begin by stating that the court when it is called upon to grant stay it has to balance the interests of the appellant with those of the respondent. This was well stated in the case m/s Portreitz Maternity -v- James Karanga Kabia Civil Appeal No 63 of 1997 where the court had this to say-“That right of appeal must be balanced against an equally weighty right, that of the plaintiff to enjoy the fruits of the judgment delivered in his favour. There must be a just cause for depriving the plaintiff of that right.”See alsoRWW v EKW(2019) eKLR,

29. It must be noted that it is in everyone’s (the court, the counsels and their clients) best interest that cases are heard and determined expeditiously. In the case of Muchanga Investmetns Limited v Safaris Unlimited (Africa) Ltd & 2 others(2009) eKLR,the court of appeal stated that:“Judicial time is the only resource the courts have at their disposal and its management does positively or adversely affect the entire system of the administration of justice.”(See also Nuru Ruga Ali & another v Commodity House Limited & 3 others (2021) eKLR)

30. The appellant did not exercise and use judicial time afforded to it wisely and it did not use it in the best interests of justice. To allow further stay of proceedings would work an injustice to the respondent. Justice cuts both ways and all parties are equal before the Constitution which entitles all parties to a fair hearing. (See article 50 (1) of the Constitutionof Kenya)

31. It is trite law that whether or not to issue an order for stay of proceedings is a matter of the court’s discretion exercised after due consideration of the merits of the case and the likely effect on the ends of justice. See In re Estate of Beatrice Wairimu Ngara (Deceased) [2021] eKLR.

32. In the end, exercising discretion, I find that the appeal dated January 9, 2017 has no merit and the same is dismissed with costs to the respondent.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 19TH DAY OF OCTOBER, 2022. .........................R. LAGAT-KORIRJUDGEJudgment delivered electronically to the parties@Menezes.dancan@gmail.com for the appellant, Reubenombati80@gmail.com for the respondent