[2022] KEHC 416 (KLR)

Ndonye v Invesco Assurance Co. Ltd (Civil Suit 23 of 2021) [2022] KEHC 416 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 416 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Suit 23 of 2021

GV Odunga, J

May 5, 2022

Between

Benard Musyoka Ndonye

Applicant

and

Invesco Assurance Co. Ltd

Respondent

Ruling

1. Vide application dated 18th October 2021 expressed to brought under Section 1A and 1B and 3A of the Civil Procedure Act, Order 51 of the Civil Procedure Rules and Article 159 (2) (d) of the Constitution of Kenya, the Applicant seeks the following orders;a.Spentb.Spentc.THAT there be a stay of execution of the following judgements pending the hearing and determination of this suit;i.Mavoko CMCC No. 465 of 2019 Lucy Wachira Mwangi vs Benard Musyoka Ndonyeii.Mavoko CMCC No. 463 of 2019 Jacinta Wanjiru Waweru vs Benard Musyoka Ndonyeiii.Mavoko CMCC No. 475 of 2019 Mary Wambui Waweru vs Benard Musyoka Ndonyeiv.Mavoko CMCC No. 464 of 2019 David Waweru vs Benard Musyoka Ndonyed.That cost of this Application be borne by the Defendant / Respondent.

2. The Application was supported by the Affidavit of Benard Musyoka Ndonye the applicant dated 18th October 2021 in which he deposed that on 13th of June 2019, his motor vehicle registration number KBR 595S, insured by the Defendant/Respondent vide policy Number 016/0804/1/055617/2018/2010, was involved in an accident as a result of which the following suits were filed against him;i.Mavoko CMCC No. 465 of 2019 Lucy Wachira Mwangi vs Benard Musyoka Ndonyeii.Mavoko CMCC No. 463 of 2019 Jacinta Wanjiru Waweru vs Benard Musyoka Ndonyeiii.Mavoko CMCC No. 475 of 2019 Mary Wambui Waweru vs Benard Musyoka Ndonyeiv.Mavoko CMCC No. 464 of 2019 David Waweru vs Benard Musyoka Ndonye

3. He deposed that the Defendant has refused to settle the claims causing auctioneers to commence execution against him and he stands to suffer irreparable loss.

4. In response to the application, the Interested Parties filed a preliminary objection to the Application on the grounds that;a.The application herein is unmaintainable as there are no proceedings known in law in which a Notice of Motion can originate a suit hence the current suit offends the provisions of Order 3 Rule 1 of the Civil Procedure Rules, 2010 and therefore ought to be struck out.b.This Court lacks jurisdiction to hear this matter in light of the provisions of Section 7 of the Magistrate’s Court Act of 2015. c.The suit herein is premature and fatally defective for failure to accord to the doctrine of exhaustion of other avenues of dispute resolution provided in law.d.As a consequence, the suit herein is incompetent, frivolous and fatally defective and an abuse of the court process hence should be struck out with costs to the Interested Parties/ Respondent.

5. On behalf of the Plaintiff/Applicant, it was submitted that the grounds in support of the application are that the defendant was the insurer of Motor Vehicle Reg. No. KBR 593S belonging to the plaintiff/applicant as at 13/06/19 when an accident occurred and as a result, the above said suits were filed against the plaintiff/applicant; that judgements were subsequently delivered but the defendant has refused to settle the same leading the interested parties to begin execution against the plaintiff/applicant for the decretal sums.

6. According to the Plaintiff, submit that there is no preliminary objection. This position was based on the case of Samuel Waweru V/S Geoffrey Muhoho Mwangi(2014) eKLR where the court noted with approval the holding in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (1967) E.A 676.

7. According to the Plaintiff, the notice of motion dated 18/10/2021 was filed together with a plaint as is evident from the court record. The same was duly served upon the interested parties advocates. The plaintiff/applicant has therefore not offended the provisions of Order 3 Rule 1 of the Civil Procedure Rules as there is a proper suit which has been presented to the court by way of a plaint.

8. It was further submitted that the High court has the jurisdiction to try and determine this suit since the primary suits (by the interested parties) emanated from Mavoko which is under the territorial jurisdiction of Machakos High Court. Under Article 165 (6) of the Constitution of Kenya, the High Court has supervisory jurisdiction over the subordinate courts and over any other person, body or authority exercising judicial or quasi judicial function. Under cause 7 of Article 165, the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred in clause 6, and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

9. It was contended that even though section 7 of the Magistrates Court Act of 2015 provide for the jurisdiction of subordinate courts in terms of pecuniary jurisdiction, there is nowhere in the Act where it is provides that the High Court cannot try matters where the subordinate courts have the pecuniary jurisdiction.

10. It was submitted that the main suit herein is not restricted to the suits listed in the notice of motion dated 18/10/2021 but to all claims that may arise from the accident that occurred on 13/6/2019. It was averred that the interested parties herein have themselves acknowledged that their total claims are over ten million (if other claims are to be filed the amount the applicant will be owed will be over 20 million). The applicant was therefore right in filing his application in the High Court.

11. The Plaintiff relied on Section 18 (1) of the Civil Procedure Act, which grants to the High Court the power to transfer suits to the Magistrate’s Court ad it was submitted that the interested parties’ argument that this suit should be struck out simply because it was filed in the High Court is a misconception of the law in view of the said provision. Reliance was placed on Benard Kiio Kisumo vs. Invesco Assurance Company Ltd, where faced with a similar situation, the Court ordered for the transfer of the suit to the subordinate court instead of striking it out.

12. It was further submitted that Article 159 (2) (d) of the Constitution requires that justice it to be administered without undue regard to procedural technicalities. The Court was urged to try this suit or simply order for the same to be transferred to the subordinate court since striking out this suit will defeat the noble intention of Article 159 (2) (d) of the Constitution and Section 1A and 1B of the Civil Procedure Act.

13. The Court was therefore urged to find no merit in the preliminary objection and to disallow the same.

14. As regards the merits of the application, it was submitted that the same prays for stay of execution pending the hearing and determination of the present suit which seeks to have the defendant compelled to settle all claims filed as of the accident that occurred on 13/6/2019 involving M/V KBR 593S which was insured by the defendant as at that time. The applicant has attached the police abstract evidencing that the defendant was the insurer thereof vide policy No. 016/0804/1/055617/2018/2010. However, based on copies of the proclamations and warrants of attached, there is evidence that there is a great danger of execution against the applicant.

15. Reference was made to Section 10 (1) of the Insurance (Third Party Risks) Act, cap 405 and it was submitted that it is not in doubt that the applicant’s application is merited and ought to be granted.

16. On their parts, the interested parties relied on the case of Peter Kamau Ngugi & Another vs Grace Akinyi Oloo & Another[2021] eKLR and contended that there was no Plaint that had been filed save for a Notice of Motion which is not a pleading and thus the prayers sought cannot be granted. Reliance was placed on the case of Tatecoh Housing and Co-op Saco Limited vs Qwetu Sacco Limited [2021] eKLR. It was therefore contended that the declaratory relief sought by the Applicant cannot be grated as the Application was fatally defective and should be dismissed.

17. The interested parties submitted that the court had no jurisdiction to entertain the Application as it offends section 7 of the Magistrate’s Court Act as the awards in question were made by the Magistrate’s Court at Mavoko which has the pecuniary jurisdiction and stay of execution has been granted by the same court. It was disclosed that the said awards were as follows;i.Kshs 10,042,702. 00 for Mavoko CMCC No. 465 of 2019 Lucy Wachira Mwangi vs Benard Musyoka Ndonyeii.Kshs. 503,650. 00 for Mavoko CMCC No. 463 of 2019 Jacinta Wanjiru Waweru vs Benard Musyoka Ndonyeiii.Kshs 188,850 for Mavoko CMCC No. 475 of 2019 Mary Wambui Waweru vs Benard Musyoka Ndonyeiv.Kshs 304,200 for Mavoko CMCC No. 464 of 2019 David Waweru vs Benard Musyoka Ndonye

18. It was further submitted that the Magistrate Court has jurisdiction to grant the declaratory orders sought and nothing has been demonstrated to oust the jurisdiction of the subordinate court being the trial court from hearing the suit herein. Reliance was placed on the case of Hezbon Obare Nyakundi vs. Trident Insurance Company Limited [2019] eKLR.

Determination 19. I have considered at the Application dated 18th October 2021, the Preliminary Objection dated 3rd November 2021 and the submissions on record and find the following to be the issues for determination;a.Whether the suit has been properly filed before this courtb.Whether this court has jurisdiction to handle this matterc.Whether the Plaintiff is entitled to the order of stay of execution

20. The principles guiding preliminary objections were well adumbrated in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors ltd (1969) EA 696 where it was held that:''…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”

21. The Court also noted that:“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary Objection. A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”

22. From the above, the following principles can be deduced in so far as proper preliminary objections are concerned:a.A preliminary Objection must raise a pure point of law;b.A preliminary objection must not deal with disputed facts;c.A preliminary objection is argued on the assumption that all facts pleaded by the other side are correct, andd.A preliminary objection cannot be raised if any fact has to be ascertained from elsewhere or the court is called upon to exercise judicial discretion.

23. As to whether this matter is not properly before this Court, I have perused the Court file and I have confirmed the Plaintiff did file a Plaint dated 10th September 2021 and subsequently filed the Application before the court on 19th October 2021. Accordingly, the Declaratory orders being sought are not in the Application dated 18th October 2021 but in the Plaint. Therefore, the objection that the matter was instituted by an application fails.

24. On jurisdiction of this court, it is clear pursuant to Article 165 (3) of the Constitution of Kenya, 2010 that this Court has unlimited original jurisdiction in criminal and civil matters save for matters exclusively within the jurisdiction of the Courts established pursuant to Article 162 of the Constitution.

25. Section 5 of the Magistrate’s Court Act provides that;The Magistrates’ Courts shall have and exercise jurisdiction and powers in proceedings of a civil nature in which the value of the subject matter in dispute does not exceed—a.twenty million shillings, where the court is presided over by a chief magistrate;b.fifteen million shillings, where the court is presided over by a senior principal magistrate;c.ten million shillings, where the court is presided over by a principal magistrate;d.seven million shillings, where the court is presided over by a senior resident magistrate; ore.five million shillings, where the court is presided over by a resident magistrate1. While I agree with the Interested party that these proceedings could have been commenced before the lower court, that does not mean that this court lacks the jurisdiction to deal with the matter. What the law provides that in the event that the Plaintiff succeeds, the costs are to be awarded on the Magistrate’s Court’s scale. Accordingly, the preliminary objection must fail since the Court has discretion to transfer the matter to the Magistrate’s Court. The law is however that where the discretion of the Court is involved, a preliminary objection cannot be sustained.

Determination 27. I have considered the application, the affidavits both in support of and in opposition to the application herein as well as the submissions filed.

28. In this case it is not disputed that the Plaintiff/Applicant is the judgement debtor in the primary suit where the Interested Party is the decree holder. The Applicant contends that the Defendant was the insurer of the vehicle which caused the accident the subject matter of that primary suit and that contention is not challenged by the Defendant herein. In this suit, the Applicant seeks to compel the Defendant to meet its obligations under the contract of insurance by satisfying the said decree. In the meantime, he seeks to have the execution and proceedings in the primary suit stayed.

29. In the instant application, the Applicant seeks stay execution of the decree in the primary suit pending the determination of this suit. 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.

30. However, one cannot lose sight of the fact that the Applicant is in effect seeking that the Defendants pays the Interested Party the sum due to the Interested Party from the Applicant. Unless some measure of protection is given to the Applicant, his suit as presently framed may well be an academic exercise. To that limited extent I agree with the reasoning in the case of Charles Makenzi Wambua vs. Africa Merchant Assurance Co. Ltd & Another[2014] eKLR where the court stated as follows:“Secondly, that unless such stay is granted, the intended suit shall be rendered nugatory. In my analysis, I have found that if stay is not granted, 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…I must also consider whether granting the stay sought will in any way prejudice the interested parties who have opposed this application. The interested parties being persons covered under Section 4 (1) of the Act-Cap 405 Laws of Kenya, the liability of the defendant is preserved as against them and they could as well, sue the defendant by way of a declaratory suit to recover the sums due as per the decrees in their favor…However, the plaintiff has opted to carry that burden on their behalf. If the suit herein is determined in favor of the plaintiff, then the interested parties stand to benefit directly. They need not file any other declaratory suit against the defendant. For that reason therefore, time and resources, will also be saved for the interested parties. Therefore, no prejudice will be caused to them.”

31. I must however state that the primary obligation of settling the decree falls squarely on the Applicant and in the event 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. It must be noted that nothing prevents the Applicant from settling the decretal sum and then suing the Defendant for compensation or reimbursement.

32. It is my view that in these circumstances, justice would be done to all the parties if there was a stay of proceedings for a short period to enable the Applicant prosecute his case. Accordingly, I hereby grant an order staying execution of the suits set out in the Motion pending the determination of this suit on condition that the Plaintiff/Applicant prosecutes his case within 60 days from the date of this ruling. In default the stay will automatically lapse.

33. The costs of this application are awarded to the Interested Party in any event.

34. As the Magistrate’s Court has the pecuniary jurisdiction to hear and determine this suit, I hereby direct that this suit be transferred to the Chief Magistrate’s Court, Mavoko for hearing and final determination.

35. It is so ordered.

Ruling read, signed and delivered in open court at Machakos this 5th day of May, 2022. G V ODUNGAJUDGEIn the absence of the parties.CA Susan