https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/131

Mundi & another (Suing as the administrators of the Estate of the Late Manasseh Guya Mwale - Deceased) v PN Mashru Ltd & another (Civil Case 182 of 2013) [2026] KEMC 131 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEMC 131 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case 182 of 2013 YA Shikanda, SPM June 4, 2026 Between Joseph Mwale Mundi & Mbuve Kimwele (Suing As The Administrators Of The Estate Of The Late Manasseh Guya Mwale - Deceased) Plaintiff and PN Mashru Ltd Defendant and Dedan Ondieki Third party Ruling 1.This ruling relates to an application for notice to show cause why execution should not issue against the third party/judgment debtor for the sum of Ksh. 1,279,645.60/= being the balance of the decretal sum. The notice to show cause is dated 11/12/2025 and the same seeks for warrants of attachment and sale of the Judgment-debtor’s movable property. The Response 2.The Judgment debtor opposed the notice to show cause by filing a Replying affidavit sworn by the Judgment debtor himself. From the replying affidavit, the main grounds of objection are:a.The High Court found that the Judgment debtor was not liable to pay the decretal sum;b.The High court judgment has never been set aside nor appealed against;c.In view of the High court judgment, continued execution against the judgment debtor is misconceived and an abuse of the process of court;d.There is no valid decree capable of sustaining execution against the judgment debtor.The judgment debtor attached a copy of the High court judgment. Reply By The Decree Holders 3.In response to the replying affidavit by the Judgment debtor, the decree holders filed what they called a supporting affidavit to the notice to show cause. The same was worn by the 1st decree holder. The 1st decree holder deposed that there was a valid judgment against the judgment debtor whose decretal sum remained unpaid. That no order for stay of execution has been produced by the judgment debtor. The 1st decree holder further deposed that the High court judgment did not declare that the judgment debtor was not liable to settle the decretal sum herein. That the High court did not state that the judgment herein had been stayed as against the judgment debtor. Main Issues For Determination 4.The main issues for determination are:i.Whether the judgment debtor is liable to satisfy the decree herein;ii.Whether the decree holder should be allowed to proceed with execution as against the judgment debtor. Submissions By The Decree Holders 5.The parties agreed to dispose of the matter by way of written submissions. The decree holders filed written submissions. The decree holder reiterated the contents of their affidavit in support of the notice to show cause and contended that the judgment debtor ought to pay the decretal sum then recover the same from the insurance for breach of contract. That the decree herein is against the judgment debtor and not the insurance company. The decree holders relied on the authority of Njeru Patrick v Invesco Assurance Co. Ltd [2021] eKLR. The decree holder submitted that according to the judgment relied upon by the judgment debtor, the court held that the primary responsibility to satisfy the decree herein remained that of the judgment debtor that the declaratory order could not extinguish such responsibility. The decree holders contended that the judgment debtor had not shown cause why the decree should not be executed and urged the court to allow the application for the notice to show cause. Submisions By The Judgment Debtor 6.The judgment debtor submitted that the power of the court to allow execution is discretionary. He argued that to allow execution against him in the face of section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act would occasion the defendant undue hardship and assist the insurance company to evade its contractual and statutory obligations. The judgment debtor relied on the authorities of Charles Makenzi Wambua v Africa Merchant Assurance Co. Ltd & another [2014] KEHC 891 (KLR) and Omar Athuman Mohamed T/A Paint Works and General Maintenance v Monarch Insurance Co. Ltd; Kaingu (Interested Party) [2022] KEHC 14284 (KLR). The judgment debtor urged the court to protect him from execution. Analysis And Determination 7.I have considered the application as well as the response by the judgment debtor. I have further considered the applicable law as well as the submissions by the parties. I have had occasion to peruse the judgment of Sewe J relied upon by the judgment debtor The judgment arose from a declaratory suit that was filed by the judgment debtor against his insurer in respect of, inter alia, the judgment and decree herein. The judgment debtor sought for a declaration that he was not bound to make any payments and that the insurance company was bound to settle the decretal sum herein, among others. The court made the following findings:1.The ultimate responsibility to satisfy the decretal sum due to the estate of Manasseh Guya Mwale (deceased herein) remains that of the judgment debtor and cannot be extinguished by a declaratory order;2.The insured (judgment debtor) is the last point of call for an aggrieved third party;3.The aspect that the judgment debtor is not obliged or legally bound to settle any claim or honour any judgment in respect of the insurance policy was underserved and declined. 8.Clearly, in as much as the judgment debtor obtained a declaratory order against his insurer, the court did not absolve him of any responsibility to settle the claim herein. His prayer to that effect was declined. The other authorities relied upon by the judgment debtor cannot assist him. They were rulings on applications for temporary stay of execution pending final declaration by the court. The decisions relied upon by the judgment debtor do not categorically hold that once it has been declared that the insurer is bound to settle a decree against the insured, the latter is completely absolved of his responsibility. The decree holder relied on the authority of Njeru Patrick v Invesco Assurance Company Limited & another [2021] eKLR, wherein Odunga J (as he then was) held that whereas the insured may well be entitled to seek a declaration that its insurer is bound to settle the claims covered under the insurance policy, that statutory right of action does not bar a person who is injured from executing the decree issued in his favour against the insured directly. 9.Odunga J (as he then was) further held as follows:I must however state that the primary obligation of settling the decree falls squarely on the applicant and in any event if the defendant as his insurer fails to satisfy the decree, the applicant will still be called upon to satisfy the same. The mere fact that the defendant is bound both contractually and statutorily to satisfy the decree does not absolve the applicant from meeting his obligations under the tort of negligence. Therefore, I respectfully disagree with the view that by not granting stay herein, the court will be assisting the defendant to avoid a contract whose terms are dictated by statute, to compensate the interested parties herein then revert to the plaintiff to recoup any extra sums that they may have paid to third (interested) parties. It must be noted that nothing prevents the applicant from settling the decretal sum and then suing the defendant for compensation or reimbursement.” 10.I have also had occasion to consider other authorities on the subject. In the authority of Odhiambo v Monarch Insurance Co Ltd; Senge & another (Interested Parties) [2022] KEHC 15610 (KLR), Aburili J, departed from her earlier finding in the case of Charles Makenzi (supra) relied upon by the judgment debtor and agreed with the holding of Odunga J (as he then was) in the authority of Njeru Patrick (supra). The learned Judge further held:In Dolk Limited v Invesco Assurance Company Limited & 5 Others [2018] eKLR and in Muthuri Ntara & Another v Francis Mworia Igweta [2016] eKLR the court in both instances stated that despite the fact that section 10 (1) of the Insurance (Motor Vehicle Third Party Risks) Act provides for the mandatory satisfaction of a judgement of any sum payable to its insured under a policy, the section does not provide for a stay of execution against the insured by the third party and further that the statutory right to seek a declaration against the insurer by the insured does not and cannot bar a decree holder from executing his/her decree against the judgement debtor who is the insured.” 11.The above reasoning has been applied in other authorities such as Barmasai v Ochung [2024] KEHC 9969 (KLR). Having considered the law and relevant authorities, my view is that the decree remains against the judgment debtor, and the fact that an insurer has been declared liable to satisfy the decree does not extinguish the judgment debtor's primary liability unless the law or the judgment expressly provides otherwise. Under Kenyan law, a declaration obtained under section 10 of the Insurance (Motor Vehicles Third Party Risks) Act that an insurer is bound to satisfy a judgment creates a statutory obligation on the insurer to pay the decretal sum. However, the judgment itself remains against the insured tortfeasor (the judgment debtor). If the insurer fails to honour its statutory obligation, the decree holder is not ordinarily left without a remedy against the judgment debtor. 12.The insurer's liability is generally viewed as additional security for satisfaction of the decree rather than a substitution of the judgment debtor's liability. A declaratory suit against an insurer under section 10 is intended to compel the insurer to meet its statutory obligation to satisfy the decree obtained against the insured; it does not ordinarily replace the insured as the judgment debtor. The insured remains the judgment debtor and the decree holder retains the right to execute against him. Therefore, the principle is that the declaratory judgment against the insurer does not novate, extinguish or transfer the judgment debt from the insured to the insurer. The insurer's liability is statutory and ancillary to the primary decree. The decree remains against the insured judgment debtor, and unless and until the decree is satisfied, the decree holder is entitled to execute against the judgment debtor notwithstanding the existence of a declaration against the insurer. I think I have said enough to show that the objection by the judgment debtor is untenable. Disposition 13.In view of the foregoing, I proceed to dismiss the objection raised by the judgment debtor and find that he has failed to show cause why the decree holder should not proceed to execute the decree herein against him. Consequently, the decree holder is at liberty to apply for warrants of attachment and sale of the judgment debtor’s movable property in execution of the decree. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 4TH DAY OF JUNE, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.