[2022] KEHC 3311 (KLR)
The court found that the application was unopposed as the respondent failed to file any response or submissions despite service. The applicant demonstrated that he had a valid insurance policy at the material time, reported the accident, and that the insurer had failed to settle the judgment, exposing him to...
Source-derived case information.
- Citation
- [2022] KEHC 3311 (KLR)
- Parties
- Applicant: David Makali Mwaniki; Respondent: Xplico Insurance Company Ltd; Interested Party: Boniface Muia David; Interested Party: Stephen Mbondo Munuve; Interested Party: Leaky Musya Mwanzia
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application E001 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Stay of Execution
- Outcome
- Application allowed. Stay of execution granted. Costs in the cause.
- Judges
- GMA Dulu
- Legal Topics
- Stay of Execution, Insurance Liability, Default Judgment, Application for Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Makali Mwaniki
Applicant
Xplico Insurance Company Ltd
Respondent
Boniface Muia David
Interested Party
Stephen Mbondo Munuve
Interested Party
Leaky Musya Mwanzia
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Stay of Execution
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of the decree issued by the Principal Magistrate’s Court in the referenced suits.
- 2 Whether the respondent, as insurer, failed in its obligation to settle the judgment amount on behalf of the applicant.
Ratio Decidendi
The court found that the application was unopposed as the respondent failed to file any response or submissions despite service. The applicant demonstrated that he had a valid insurance policy at the material time, reported the accident, and that the insurer had failed to settle the judgment, exposing him to execution. Given the lack of opposition and the risk of injustice to the applicant, the court exercised its discretion to grant a stay of execution pending the hearing and determination of the suit, as well as awarding costs in the cause.
Court Disposition
Application allowed. Stay of execution granted. Costs in the cause.
Orders
- Stay of execution of the decree issued by the Principal Magistrate’s Court at Kilungu in PMCC No 209 of 2018, PMCC No 2011 of 2018, and PMCC No 212 of 2018 is granted pending hearing and determination of this suit.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
28 paragraphs
Mwaniki v Xplico Insurance Company Ltd; David & 2 others (Interested Parties) (Civil Miscellaneous Application E001 of 2021) [2022] KEHC 3311 (KLR) (7 July 2022) (Ruling)
Neutral citation: [2022] KEHC 3311 (KLR)
Republic of Kenya
In the High Court at Makueni
Civil Miscellaneous Application E001 of 2021
GMA Dulu, J
July 7, 2022
Between
David Makali Mwaniki
Applicant
and
Xplico Insurance Company Ltd
Respondent
and
Boniface Muia David
Interested Party
Stephen Mbondo Munuve
Interested Party
Leaky Musya Mwanzia
Interested Party
Ruling
1. Before me is an application by way of Notice of Motion dated January 13, 2021 brought by the plaintiff under section 1A, 1B, and 3A of the Civil Procedure Act (cap.21), and Order 10 Rule 11 and Order 51 Rule 1 of theCivil Procedure Rules 2010. The plaintiff/applicant seeks a number of orders, some of whose prayers have been spent as follows –1)spent2)spent3)That pending the hearing and determination of this suit, this court be pleased to order stay of execution of the decree issued by the Principal Magistrate’s court at Kilungu in the following suits to wit –a)Kilungu PMCC No 209 of 2018 Boniface Muia David v David Makali Mwaniki & others.b)Kilungu PMCC No 2011 of 2018 Stephen Mbondo Munuve v David Makali Mwaniki & 2 others, andc)Kilungu PMCC No 212 of 2018; Leaky Muasya Mwanzia v David Makali Mwaniki & 2 others.4)That the costs of the application be in the cause.
2. The application has grounds on the face of the Notice of Motion, that the plaintiff/applicant is the owner of matatu registration number KCA150B with a valid insurance policy as at 10/10/2017, on which date it was involved in an accident at Mlima Kiu along Nairobi-Mombasa road, and that the interested parties herein were injured and the plaintiff reported the accident to the defendant who appointed advocates to represent the plaintiff in the suits, and that judgment was entered against the plaintiff for a total of Kshs.552,500/=, and that the defendant failed to pay the court award and the interested parties had now obtained warrants of execution against the plaintiff’s property.
3. The application was filed with a supporting affidavit sworn by the plaintiff on January 13, 2021, which amplifies the grounds of the application.
4. Though the application was served, no response has been filed.
5. Again though this court directed that parties file written submissions to the application, only the applicant’s counsel M/s Eboso & company filed written submissions.
6. Having considered the application, and same not being opposed, this court finds no reason to decline the same. I thus allow the application and grant prayer 3 and 4. Orders accordingly.
DELIVERED, SIGNED & DATED THIS 7TH DAY OF JULY, 2022, VIRTUALLY AT MAKUENI COURT...................................GEORGE DULUJUDGE