[2024] KEHC 5448 (KLR)
The court found that the applicant failed to establish sufficient grounds to warrant the exercise of discretion to stay the attachment and sale of his property. The declaratory suit is strictly between the applicant and his insurers (the respondents), and the Interested Party, as decree holder, is not privy to that...
Source-derived case information.
- Citation
- [2024] KEHC 5448 (KLR)
- Parties
- Applicant: Titus T. Ndaka; Respondent: Kenya Orient Insurance Limited; Respondent: Medison Insurance Company Limited; Interested Party: Karen Ngina Muthoka; Interested Party: Lucy Njeri Macharia
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Civil Case E003 of 2024
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Attachment and Sale Pending Determination of Declaratory Suit
- Outcome
- application dismissed with costs to the interested party
- Judges
- RK Limo
- Legal Topics
- Stay of Execution, Attachment and Sale, Declaratory Suit, Judgment Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Titus T. Ndaka
Applicant
Kenya Orient Insurance Limited
Respondent
Medison Insurance Company Limited
Respondent
Karen Ngina Muthoka
Interested Party
Lucy Njeri Macharia
Interested Party
Procedural Posture
Stay Application / Ruling on Application for Stay of Attachment and Sale Pending Determination of Declaratory Suit
Legal Issues
- 1 Whether the applicant has established sufficient grounds for stay of attachment and sale of property pending determination of a declaratory suit.
- 2 Whether the Interested Party, as decree holder, is entitled to proceed with execution despite the pending declaratory suit between the applicant and his insurers.
Ratio Decidendi
The court found that the applicant failed to establish sufficient grounds to warrant the exercise of discretion to stay the attachment and sale of his property. The declaratory suit is strictly between the applicant and his insurers (the respondents), and the Interested Party, as decree holder, is not privy to that contract or dispute. The Interested Party is entitled to enjoy the fruits of her judgment in Kitui CMCC No. E124 of 2021. Any loss suffered by the applicant due to breach of contract with his insurers is a separate matter to be resolved between those parties. The execution process by the Interested Party was lawful, and no fault was found in her conduct. Therefore, the...
Court Disposition
application dismissed with costs to the interested party
Orders
- The application dated 28th March 2024 is dismissed.
- Costs awarded to the Interested Party.
Full Case Text
Judgment text and source record
28 paragraphs
Ndaka v Kenya Orient Insurance Limited & another; Muthoka & another (Interested Parties) (Suing as the Administrators of the Estate of the late David Nzine Muthoka) (Civil Case E003 of 2024) [2024] KEHC 5448 (KLR) (21 May 2024) (Ruling)
Neutral citation: [2024] KEHC 5448 (KLR)
Republic of Kenya
In the High Court at Kitui
Civil Case E003 of 2024
RK Limo, J
May 21, 2024
Between
Titus T. Ndaka
Applicant
and
Kenya Orient Insurance Limited
1st Respondent
Medison Insurance Company Limited
2nd Respondent
and
Karen Ngina Muthoka
Interested Party
Lucy Njeri Macharia
Interested Party
Suing as the Administrators of the Estate of the late David Nzine Muthoka
Ruling
1. This court has considered the Application dated 28th March 2024 and the grounds raised. I have also considered the response made by the Interested Party who is the decree holder in Kitui CMCC No. E124 of 2021. The Application as framed is seeking a Stay of Attachment and Sale of attached property belonging to the Applicant pending the determination of declaratory suit. The attachment is brought about by the execution carried out by the Interested Party vide Kitui CMCC No. E124 of 2021. The applicant’s main grievance is that he is likely to suffer irreparable loss and that the discretion of this court should be exercised in his favour.
2. The Interested Party on the other hand has opposed the Application stating that she is entitled to fruits of the Judgment and has nothing to do with the declaratory suit as she is not privy to the contract between the Applicants and Respondents. This court finds that the applicant has not established sufficient grounds to warrant this court exercising it discretion in his favour because for one, the declaratory suit is between him and his insurers, the Respondents herein.
3. The Interested Party is not privy to the dispute/ breach of any contractual agreement as between the Applicant and his insurers.
4. Secondly, the Interested Party being a successful party in Kitui CMCC No E124 of 2021 is entitled to the fruits of Judgment. This court finds that any loss suffered or occasioned to the Applicant due to breach of any contractual agreement as between him and his insurers will be covered by party at fault.
5. The Interested Party has not been faulted in any way in the execution process carried out. The same is lawful and I do not find sufficient reasons advanced to stay it. In the premises the Application dated 28th March 2024 is dismissed with costs to the Interested Party.
DATED, SIGNED AND DELIVERED AT KITUI THIS 21ST DAY OF MAY, 2024HON. JUSTICE R. K. LIMOJUDGE