[2022] KEHC 15900 (KLR)

Maina v CIC General Insurance Ltd; Nyang’aya (Interested Party) (Civil Suit E017 of 2022) [2022] KEHC 15900 (KLR) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15900 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Suit E017 of 2022

AN Ongeri, J

November 11, 2022

Between

Joseph Munene Maina

Plaintiff

and

CIC General Insurance Ltd

Defendant

and

Devinah Kwamboka Nyang’aya

Interested Party

Ruling

1. The application coming for consideration in this ruling is the notice of motion dated July 1, 2022 seeking the following orders: -i.That the application be certified as urgent and be heard ex-parte in the first instance.ii.That a temporary stay of execution do issue ex-parte in the interim against the judgment in Kericho CMCC No 39 of 2019 and all consequential orders and/or proceedings arising therefrom pending the hearing and determination of this application inter parties.iii.That a temporary stay of execution do issue ex parte in the interim against the judgment in Kericho CMCC No 39 of 2019 and all consequential orders and/or proceedings arising therefrom do issue pending the hearing and determination of the declaratory suit herein.iv.That the costs of the application be provided for.

2. The application is supported by the affidavit of Joseph Munene Maina dated July 1, 2022.

3. The applicant avers that the interested party herein instituted a civil suit namely Kericho CMCC No 39 of 2019 seeking general damages under the Law Reform Act and the Fatal Accidents Act, special damages and costs.

4. The applicant avers that the cause of action was premised on an accident caused by his motor vehicle KBB 409X on February 10, 2018 causing the demise of one Elijah Mwaniki Kinuthiaand that the deceased’s estate was subsequently enjoined to the suit.

5. The applicant avers that KerichoCMCC No 39 of 2019 was heard and judgment delivered on October 16, 2019 in favour of the interested party against Anthony Mwangi Munene and himself.

6. The applicant avers that at the material date when the accident occurred, the motor vehicle was insured by CIC General Insurance Ltd vide insurance policy No 012/080/1/019916/2009/01, hence it was proper to execute against the Insurer, CIC General Insurance Ltd (defendant/respondent).

7. The applicant avers that he has a declaratory suit with high probability of success against the defendant/respondent to compel it to liquidate the judgement sum plus any incidental costs arising. The declaratory suit is premised on section 10 of the Insurance (Motor Vehicle Third Parties Risks) Act, cap 405.

8. The applicant avers that he was apprehensive that judgment having been entered against him in Kericho CMCC No 39 of 2019 the interested party would proceed to wrongfully attach, proclaim and dispose his personal property in execution of the judgment in Kericho CMCC No 39 of 2019 which would occasion him substantial and/or irreparable loss.

9. The application was opposed by the interested party who filed a replying affidavit dated August 29, 2022 sworn by Devinah Kwamboka Nyang’aya.

10. The interested party avers that the insured/ applicant was entitled to seek a declaration that its insurer is liable to settle claims covered under the insurance policy, however, the statutory right of action does not bar a person who is injured from executing the decree issued in his favour against the insured.

11. The interested party avers that the court lacks powers to grant the orders of stay in the instant application as the court had previously pronounced itself in the applicant’s appeal, the court found that judgment obtained in Kericho CMCC No 39 of 2019 was proper and enforceable, thereby dismissing the appeal with costs on June 17, 2022 and was therefore functus officio.

12. The interested party avers that the instant application lacks merit, premature and is incompetent and the same amounts to gross abuse of court process as it was trite law that a declaratory suit is only ripe to be filed against the insurance company for compensation upon the insured satisfying the decretal amount which was not the case in the instant suit.

13. The interested party avers that the application is frivolous, incompetent, vexatious, bad in law, incurably defective, an abuse of court process, made in bad faith, brought after inordinate delay and an afterthought aimed to frustrate the process of execution to her detriment and to frustrate the enjoyment of the lawful fruits of judgment obtained in Kericho CMCC No 39 of 2019.

14. The parties filed written submissions which I have considered.

15. The applicant asserted that he met the grounds for a temporary stay of execution and cited the case of Charles Makenzi Wambua v Africa Merchant Assurance Co Ltd & anor[2014] eKLR.

16. The applicant argued that he had an arguable case with a probability of success, that at the material date of the accident in KerichoCMCC No 39 of 2019, the applicant’s motor vehicle was insured and the import of section 10 of the Insurance (Motor Vehicle Third Parties Risks) Act, cap 405, is that it imposes a mandatory statutory obligation on the insurer to pay any decree and/or judgment against the insured as long as the insured had a valid insurance cover. The applicant cited the case ofIsaack Wakoli v Xplico Insurance Company (2021) eKLR.

17. The applicant was therefore intent on lodging a declaratory suit with high probability of success against the defendant/respondent to compel it to liquidate the decretal sum.

18. The applicant argued that unless stay is granted the pending suit will be rendered nugatory and that ifstatus quo is not maintained by granting stay of execution any resultant judgment by the court granting the prayers sought would be moot.

19. The applicant argued that unless stay is granted, he would suffer substantial and/or irreparable loss as he faced the imminent danger of being committed to civil jail and/or his personal property would be attached, proclaimed and eventually auctioned in satisfaction of a huge decretal sum in favour of the interested party.

20. The applicant argued that granting stay would not in any way prejudice the interested party.

21. The applicant contended that the declaratory suit does not challenge the liability in Kericho CMCC No 39 of 2109 rather it seeks to compel the defendant/respondent to pay the decretal sum awarded to the interested party as mandated under section 10 of the Insurance Motor Vehicle (Third Party Risks) Act cap 405.

22. The interested party submitted that applicant had not met the conditions set out in order 42 rule 6 of the Civil Procedure Rules, 2010 in order for stay to be granted, additionally, the overriding objectives in section 1A, 1B & 3A of the Civil Procedure Act could not be invoked to sustain proceedings for stay.

23. The interested party contended that the statutory right of action namely a declaratory suit does not bar a person who is injured from executing the decree issued in his favour against the insured directly.

24. The interested party reiterated that the instant application was frivolous, incompetent, vexatious, bad in law, incurably defective, an abuse of court process, brought in bad faith, brought after inordinate delay and an afterthought aimed to frustrate the process of execution and subsequently the payment of the decretal sum due to them.

25. The issues for determination in this case are as follows: -i.Whether the application is defective.ii.Whether the applicant is entitled to stay of execution pending the filing of the declaratory suit.

26. On the issue as to whether the application is defective, the Interested party submitted that the supporting affidavit to the application is not signed. However, the copy filed in Court is compliant and i find that the application is competent.

27. On the issue as to whether the applicant is entitled to a stay of execution, the applicable law is order 42 rule 6 (1) and 6 (2) of theCivil Procedure Rules which states as follows: -“(1) No appeal or second appeal shall operate as a stay of execution or proceeding under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.No order for stay of execution shall be made under sub rule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”

28. In Vishram Ravji Halai v Thornton & Turpin Civil Application No Nai 15 of 1990 [1990] KLR 365, the Court of Appeal held that whereas the Court of Appeal’s power to grant a stay pending appeal is unfettered, the High Court’s jurisdiction to do so under order 41 rule 6 of the Civil Procedure Rules is fettered by three conditions namely, establishment of a sufficient cause, satisfaction of substantial loss and the furnishing of security. Further to this that the application must be made without unreasonable delay.

29. In Butt v Rent Restriction Tribunal[1979] eKLR the Court of Appeal stated as follows; “It is in the discretion of the court to grant or refuse a stay but what has to be judged in every case is whether there are or not particular circumstances in the case to make an order staying execution. It has been said that the court as a general rule ought to exercise its best discretion in a way so as not to prevent the appeal, if successful from being nugatory…”

30. The court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice. SeeSuleiman v Amboseli Resort Limited [2004] 2 KLR 589.

31. In the instant application I find the interested party is not privy to the contract between the plaintiff/applicant and the defendant herein.

32. I hereby decline to grant the orders for stay sought in the notice of motion dated July 1, 2022 for want of sufficient cause.

33. The application is dismissed with no orders as to costs.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 11TH DAY OF NOVEMBER, 2022A. N. ONGERIJUDGE