[2022] KEHC 17279 (KLR)

National Industrial Credit Bank & 2 others v Makau & 2 others (Civil Appeal E33 of 2021) [2022] KEHC 17279 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 17279 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal E33 of 2021

RK Limo, J

October 13, 2022

Between

National Industrial Credit Bank

1st Appellant

Patrick Kioko Nzioka

2nd Appellant

Maxwell Auto Tech Limited

3rd Appellant

and

Nzuva Makau

1st Respondent

Sidian Bank Limited

2nd Respondent

Mbuba Kinyua David

3rd Respondent

Ruling

1. The appellants/appellants/applicants herein through a Notice of Motion dated 11t June, 2021 have moved this court for the following reliefs namely: -i.Spentii.That this Hon. Court be pleased to order a stay of execution of the judgement dated 19th and May, 2021 pending the hearing and determination of this application.iii.That this Hon Court be pleased to order a stay of execution on the judgement/decree of the trial court, dated and delivered on May 19, 2021 pending the hearing and determination of the appeal.iv.That this Hon Court be pleased to order that security for the portion of decretal amount payable by the appellant be furnished by way of a bank guarantee.v.That costs abide by the outcome of the appeal.

2. This application is based on the following listed grounds namely:a.That judgement was entered on May 19, 2021 in favour of the Respondent against the appellants and the 3rd party with each side shouldering 50% liability and that the respondent was awarded Kshs 350,000 general damages and 35,500 special damages.b.That the applicants were dissatisfied and filed the appeal herein.c.That the amount awarded is substantial and if paid, the appellants may not recover the amount.d.That unless stay of execution is granted, the appeal filed may be rendered nugatory.

3. This application is supported by the affidavit of one Kelvin Ngure who depones that he is Deputy Claims Manager of Directive Assurance Ltd who were the insurers of Motor vehicle registration No. KBX 542N.

4. The Deponent has mainly reiterated the above grounds adding that they are ready and willing to furnish security in form of bank guarantee.

5. In their written submissions, the applicant contends that unless a stay is granted, they will suffer irreparable loss.

6. They submit that the affidavit in support of their application sworn by Kelvin Ngure, Deputy Claims Manager, Directline Assurance Company is not defective as the said deponent to swear an affidavit being their insurer because he has an interest because he has an interest in the matter because Section 10 of Insurance (Motor Vehicles Third Party Risks) Act Cap 405 requires the insurance company to satisfy the judgement. They further contend that an insurer is required to be notified of proceedings giving rise to judgement and any appeal arising therefrom and in view of the same, it is submitted that the insurer would be well seized of information pertaining proceedings in the primary suit. The appellants contend that any person well seized of the facts are competent to swear an affidavit.

7. They rely on the decision ofObonyo Walter Oneya & Another versus Jackline Anyango Ogude (Suing as the administrator of the estate of Fredrick Odhiambo Sewe) deceased) [2018] eKLR where the court held that any person well seized with relevant information relevant to an action and is duly authorized can swear an affidavit in the action.

8. They also rely on the case of Rhoda Mukuma versus John Abuoga[1988] eKLR where the Court of Appeal found that a substantial loss is the main consideration in an application of stay and that to prevent the same in order not to render the appeal nugatory it was in the interest of justice to grant a stay of execution.

9. The Respondent has opposed this appeal through his replying affidavit and written submissions by Counsel dated July 21, 2022.

10. The respondent contend that this application is fatally defective by virtue of the fact that the affidavit in support is sworn by a person who is not a party in the proceedings and that the affidavit violates the provisions of Order 19 Rule 3(1) of the Civil Procedure Rules. In his view the deponent of the said affidavit is a total stranger.

11. He avers that that the assertion that he is unlikely to be in a position to refund the amount paid to him if appeal succeeds are unsubstantiated claim and not supported by facts.

12. He contends that if the court is minded to allow the application, he should be paid half and the other half be deposited in a joint interest-earning account.

13. In his written submissions through Counsel, the respondent submits that as a successful party in litigation he is entitled to fruits of his judgement and has relied on the case ofSamviv Trustee Ltd. versus Guardian Bank Ltd. (Nairobi High Court Criminal Case No. 795 of 1997). He also cites the following authorities to buttress his contention;a.Machira T/A Machira & Co. Advocates versus East African Standard [2002] eKLR 63. b.Victory Construction versus BM (a minor suing next friend one PMM [2019] eKLR, in that case the court held that poverty per se is not necessarily a ground to justify a stay of execution because poverty should not be used to deny a person’s right to enjoy fruits of judgement.

14. He further relies on the on the decision in Matuu High School versus Kitema (Machakos High Court Misc. No. E. 105 of [2021] where the court struck out an application for having been supported by an affidavit of a person who was not a party to the suit.

15. This court has considered this application and the response made. The applicants have invoked the provisions of Section 3A of Civil Procedure Act Order42 Rule 6 of the Civil Procedure Rules in seeking stay of execution but they have not stated which judgement are they seeking to stay. In their application they have sought for an Order of stay of execution on the judgement/decree of the trial court dated and delivered on 19/5/2021 pending the hearing and determination of the appeal.’’ The prayer is couched in a way that is rather confusing, because the applicant proposes that judgement and decree is one and the same thing and was delivered at the same time on 19/5/2021 when the converse is that that a decree is drawn on the basis of a judgement delivered by a court. The applicant has not given the description of the decree it seeks to stay or the case upon which judgment was delivered against them. The case upon which they seek to stay is not mentioned anywhere in their application or the affidavit.

16. Secondly, the affidavit in support of this application is evidently sworn by a person who is not a party.

17. The deponent, Kevin Ngure describes himself as the Deputy Claims Manager Directline Assurance Co. Ltd. He does not state the case upon which case he bases his information provided by his advocates. He simply states that judgement was entered on May 19, 2021 and 30 days’ stay was granted. He avers that that the appellants were held 50% liable to pay Kshs 350,000 general damages and Kshs 35,500 Special damages were awarded to the respondent. He does not state the particulars of the case or the citation thereof.

18. That in my view is insufficient to satisfy the requirements under Order 19 Rule 3(1) & (2) of Civil Procedure Rules. The basis of his knowledge is not specific or certain which renders his affidavit defective.

19. Secondly and more importantly, the deponent as an insurer of a party in litigation on the basis of doctrine of subrogation can only come in place of a party in litigation after satisfying a decree passed against the insured. In the absence of evidence of satisfaction of the decree passed, he is legally a stranger in the proceedings. In the case ofKenya Power & Lightening Co Ltd v Julius Wambale & Another[2019] eKLR Githua J held as follows:-‘‘The parameters within which the principle of subrogation applies are now well settled. The doctrine applies where there is a contract of insurance and following crystallization of the risk insured, had compensated its insured for financial loss occasioned thereby usually to a 3rd party. Under this doctrine, the insurer is in law entitled to step into the shows of the insured and enjoy all the rights, privileges and remedies accruing to the insured including to seek indemnity from a 3rd party. The action must however be instituted in the name of the insured…………………………….’’

20. The same position obtains in Dollk Ltd v Invesco Assurance Co Ltd & 5 Others[2018] eKLR where Odunga J referenced the decision inOpiss versus Lion of Kenya Insurance Co. (Civil Appeal No 185 of 1991) where it was held,‘‘The right to subrogate does not create a privity of contract between the insurance Co and third parties, it only gives the insurance company the right to take over the rights and privileges of the insured and therefore, must be brought in the name of the insured.’’

21. In PMM Private Safaris v Kevin Ijatia [2006] eKLR Mutungi J held as follows: -‘‘an insurer is not a party to the proceedings…...here the affidavit is sworn by a stranger to the proceedings……’’

22. In this instance, the applicants have cited the decision of Obonyo Walter Oneya & Another versus Jackline Anyango Ogude (Suing as the administrator of the estate of Fredrick Odhiambo Sewe where Githua J. held that an insurer could swear an affidavit so long as the same are confirmed to such facts as the deponent is able of his own knowledge to prove. I am respectfully however not persuaded by that position because in my view a litigant in the proceedings can only swear an affidavit on facts he is able of his knowledge to prove. He or she can also swear an affidavit on matters that come to his knowledge through credible sources which must be clearly stated as required under Order 19 Rule 3 of the Civil Procedure Rules.In this instance, the deponent of the affidavit Mr Kevin Ngure as I have noted above does not state the particulars of the specific case upon which his information is premised. He is of course not a party in this matter because of the operation of doctrine of subrogation. For those 2 reasons, the application before me is incompetent to the extent that the affidavit is support of the same is incompetent. The application falls short of the requirements under Order 51 Rule 4 of the Civil Procedure Rules which stipulates that every notice of motion should show the ground upon which it is made supported by an affidavit.In the premises, this court finds that the application dated June 11, 2021 is defective and is hereby struck out with costs.

DATED, SIGNED AND DELIVERED AT KITUI THIS 13TH DAY OF OCTOBER, 2022. HON. JUSTICE R.K. LIMOJUDGE