[2022] KEHC 15069 (KLR)

Kenya Fresh Produce Exporters Ltd v Ouma (Miscellaneous Civil Application E254 of 2022) [2022] KEHC 15069 (KLR) (Commercial and Tax) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15069 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Miscellaneous Civil Application E254 of 2022

JN Mulwa, J

November 8, 2022

Between

Kenya Fresh Produce Exporters Ltd

Applicant

and

Daniel Oduor Ouma

Respondent

Ruling

1. Judgment in the trial court was delivered on the 18/3/2022 whereof the Respondent, then Plaintiff was awarded Kshs. 250,000/= General Damages and Kshs. 3,550/= Special Damages arising from injuries he sustained in a traffic road accident involving the Applicant’s motor vehicle that was found to have been wholly to blame for the accident. The Respondent was travelling in motor vehicle Reg. No. KAJ 574Y that collided with the Applicant’s vehicle.

2. The Applicant was dissatisfied with the judgment and intends to appeal against it. By an application dated 26/4/2022 brought under Sections 1A, 1B and 95 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules (CPR), the Applicant seeks leave to file an appeal out of time and an order of stay of execution of the judgment pending hearing and determination of the intended appeal.

3. The Supporting Affidavit is sworn by one Edinah Masanya, a legal officer of the Applicant’s insurer which is undisclosed. A draft Memorandum of Appeal is annexed to the affidavit and it is deponed that it has high chances of success. A perusal of the draft Memorandum of Appeal shows that the intended appeal is against the award of damages only.

4. In opposing the application, the Respondent filed a Replying Affidavit sworn on the 10/5/2022, opposing grant of the orders sought. Both parties have filed submissions which I have carefully considered.

The supporting affidavit to the application 5. I have stated earlier that the said affidavit is sworn by one Edinah Masanya. This deponent does not describe herself as a party to the proceedings either before the trial court, or in this court, or for any party in whatever capacity. No authority to swear the affidavit on behalf of the Applicant has been annexed as alluded to, save to state that she is a legal officer of an undisclosed insurance company and fully conversant with the facts pertinent to the matter.

6. This issue was raised in the Replying Affidavit as well as in the Respondent’s submissions. In its written submissions, the Respondent states that the application is fatally defective and incompetent due to the Supporting Affidavit having been sworn by a party who is not a party to the proceedings, and thus a stranger acting for an undisclosed party.

7. In a situation very similar to the above, the Supporting Affidavit to the application for leave to file appeal out of time was sworn by a person who claimed to be the head of legal office of an insurance company, which company was not a party to the case; and no authorization document was provided or annexed to the affidavit.

8. The court inP.M.M. Private Safaris vs Kevin Ijatia[2006] eKLR held that“…the insurer is not a party to the proceedings herein. Hence the affidavit is sworn by a stranger to the proceedings both at the appellate level and at the subordinate court’s level. The Insurance sector clearly misleads the insurer, to believe that he/it, the insured is represented by a counsel, which counsel is not answerable to the insured.”The same position was held in the case Moijo Matanya Ole Keiwa vs Chief Justice of Kenya & 6 others [2008] eKLR where the Court of Appeal stated;“Affidavits which are sworn by persons who are not parties to the proceedings before the court are incompetent and ought to be expunged from the record”

9. Order 19 Rule 3(1) of the CPR provides that:“Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, provided that in interlocutory proceedings, or by leave of court, an affidavit may contain statements of information and belief showing the sources and grounds thereof”

10. An advocate for a party would ordinarily not be out of order in swearing an affidavit on behalf of a party who is the Advocate’s client as is expected that the said advocate would be well versed with all material facts in the case – see John Muli & another [2021] eKLR among others.

11. In the P.M.M Private Safaris (Supra), the court proceeded to render that:“…This court should not, and must not, grant such an application. It would be bad in law, and wrong in both policy and principle. A grant of such an application is tantamount to encouragement of exploitation of the insured sector of the society by the insurance policy... it encourages the untenable position where the counsel for a third party/stranger to the litigation is seen as counsel for the insured – the Defendant in in the suit at the subordinate court level.”

12. When the court (Mutungi J.) rendered himself in the case stated above, it was cognizant that the law of subrogation had not accrued as the insurance company had not paid any money on behalf of the insured. However, when the subrogation doctrine is properly invoked by the insurance company paying the claim on behalf of its Insured upon a contract of Insurance, and upon crystallization of the risk insured, the Insurance company is thus by law entitled to step into its insured shoes and to enjoy all the rights and privileges, including remedies accruing to the insured.

13. However, an action under the subrogation doctrine must be instituted in the name of the Insured with its consent, and must relate to the subject of the contract of insurance, and not in any other manner.In a similar application, Motende J. in Paul Ngila & another vs Musili Malonza & another [2020] eKLR, the court dismissed the application upon finding that the application was incompetent as the Supporting affidavit was sworn by a stranger.

14. I have been urged by the Respondent to dismiss the entire application in view of the incompetent Supporting Affidavit. Unlike in the cases cited above, the Insurance Company in the present case is not disclosed. The Respondent found it not necessary to amend its pleadings by way of further/supplementary affidavit to capture the instructing Insurance company, if any, upon the complaint of the deponent being a stranger.

15. I note that even in its written submissions, the Applicant remained silent in respect of the flaws in the supporting affidavit. It therefore boils to the fact that the Applicant, Kenya Fresh Produce Exporters Limited is not aggrieved by the trial court’s judgment, and therefore the application for leave to file an appeal out of time and stay of execution pending filing of the intended appeal are baseless.

16. I have not been persuaded to invoke provisions of Article 159(2)(d) of the 2010 Constitution, in the circumstances of this interlocutory application because the incompetent supporting affidavit goes to the root and merits of the application. The errors in the affidavit are substantial, in my view, as no authority was given to the stranger to swear the affidavit, nor has the principal been disclosed. This no doubt renders the entire application to be defective and incompetent.

17. I proceed to strike out the supporting affidavit sworn by Edna Masanya. The upshot is that the application dated 26/4/2022 is likewise found to be incompetent and therefore struck out, with costs. The interim orders of stay of execution issued on the 27/4/2022 are hereby vacated.

Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 8TH DAY OF NOVEMBER, 2022. J. N. MULWAJUDGE