https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/511

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT CHUKA** **CIVIL CASE NO. E059 OF 2024** **MARGARET TIRINDI MUTUA………………………..………..PLAINTIFF/APPLICANT** **VERSUS** **INVESCO INSURANCE** **COMPANY LIMITED………………...…………………..…DEFENDANT/RESPONDENT** **AND** **SOLOMON KABURU GITONGA…………….……………………..INTERESTED PARTY** **RULING** **Background** The Applicant filed an application dated 6th May 2024 seeking orders for an injunction and stay of execution in Chuka CMCC No.E072 of 2022 pending hearing and determination of the application as well as the main suit **Applicant’s case** It is the position of the Applicant that she is the registered owner of motor vehicle registration number KCL 515U for which she had taken an insurance cover and attached a certificate of insurance by the Respondent/Defendant. She admitted that on 31st August 2021, the said motor vehicle was involved in a road traffic accident and the deceased suffered fatal injuries. That consequently, the legal representative of the deceased’s estate filed a civil suit for compensation CMCC No.E072 of 2022 and the Court awarded the interested party Kshs.2,312,925 and interest of Kshs.108,730 totaling to Kshs.2,421,925 and that her insurance has failed to settle the decretal sum and that the interested party is at the behest of execution of the decree and she holds the position that the Defendant ought to be ordered to pay the same. In further support of her application, she relied on Order 40 Rule 1 and 2 of the Civil Procedure Rules and further indicates that her application has met the grounds in the **Giella vs Casman Brown [1973] EA 358.** The Applicant relies on the determination in Charles Makenzi Wambua vs Africa Merchant AAssurance Company Limited and Another [2014]eklr where the Court held that if stay is not granted, the intended suit shall be rendered nugatory and it would result in aiding the Defendant avoid a contract Notably, the Defendant did not respond to the application **The Interested Party’s case** The Interested party opposed the application vide a replying affidavit sworn on 20th May 2024 and indicated that it had come 10 months after judgment and noted that the Applicant had failed to follow up with the Defendant in order to settle the amount owing to him and that the Applicant now seeks to protect her interests to not have her property attached for execution for which such delay would be prejudicial to him. It is the position of the interested party that the Applicant has not shown what loss she stands to suffer and has also failed to meet the criteria as provided for in the **Giella vs Casman Brown [1973] EA 358** caseand sought that the Court dismisses the application be dismissed with costs as it seeks to delay him form enjoying the fruits of his lawfully obtained judgment. The interested party indicated that it is Order 42 and not 40 of the Civil Procedure Rules that gives the criteria for a stay to be granted and outlined the 3 elements as to the issue of such application being brought without unreasonable delay, that substantial loss must be demonstrated to be a result and that a provision for security ought to be made and held that none of these had been met by the Applicant. The Interested party relied on the case of **Jane Wanjiru Mwangi v Explico Insurance Company Limited: Duncan Odhiambo Owino (Interested Party/Respondent [2021] eKLR** where the court dismissed the applicant’s application for stay of execution pending the hearing and determination of the declaratory suit against her insured as she could seek compensation therefrom and further, that a stay would occasion injustice on the respondent by hindering him from realizing the fruits of his judgement. Additionally, the interested party relied on the holding in **Peter Kilonzo Vs Monarch Insurance Company Limited: Kisakwa Ndolo(Sued as a legal representative of the estate of Mwania Kisakwa-Deceased(interested party))[2021]eklr** where the Court held that whereas an insured may well be entitled to seek a declaration that its insurer is entitled to settle 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. **Issue for determination** **Whether the interested party is privy to the insurance policy between the Applicant and the Respondent** The Court first seeks to point out that it is in this application being called to set aside the orders of another court in a separate file and holds that the same ought to have been filed in the primary suit file. All that the Court has to go by is a decree. Analysis The Court holds that the interested party is not privy to the agreement entered into between the parties to this suit and therefore is a stranger to the said agreement. To this Court, the interested party is a legitimate holder of a decree. Notably, the Applicant has also failed to demonstrate irreparable loss and imminent threat for attachment of her property but has only specified that she is aware that it is her insurer who ought to compensate the interested party. The Court takes the position that a decree holder is at liberty to pursue decretal sum from the Judgment debtor and to this end, relies on the determination in **Dollk Limited v Invesco Asssurance Company Limited & 5 others [2018] eKLR** Court considered section 10(1) of the ***Insurance (Motor Vehicle Third Party Risks) Act*** it is clear that the section does not provide for stay of execution. The said section provides that: ***If, after a policy of insurance has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.*** However, court proceeded to hold that whereas an insured may well be entitled to seek a declaration that its insurer is entitled 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 its favour against the insured directly. Court dismissed the application and found the same to be unmerited. Moreover, the Court relies on **Muthuri Ntara & Another v Francis Mworia Igweta [2016] eKLR** where the court in both instances stated that despite the fact that section 10 (1) of the Insurance (Motor Vehicle Third Party Risks) Act providing 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. In **Peter Kilonzo Kioko v Monarch Insurance Co. Ltd; Kisakwa Ndolo King`oku (Sued as Legal Representative of the Estate of Mwania Kisakwa - Deceased (Interested Party) [2021] eKLR** Justice **G V ODUNGA** However, whereas an insured may well be entitled to seek a declaration that its insurer is entitled 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. The same is reiterated in the case of **Njeru Patrick v Invesco Assurance Company Limited; Granton Ukonde Mulala (Interested Party) [2021] eKLR** **Determination** Therefore, this Court finds the Applicants application unmerited and dismisses the same with costs to the interested party. This is the order of this Court. **Dated and delivered at Chuka Law Courts by Hon. Tracy Wachira (RM) this 11th day of June 2024.**