https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12150

***REPUBLIC OF KENYA*** ***IN THE HIGH COURT OF KENYA AT THIKA*** ***CIVIL APPEAL NO. E027 OF 2025*** ***MARY NJERI NGUGI…………………..……...APPELLANT/APPLICANT*** ***-VERSUS-*** ***JAMES KURIA WANJIRU…………………………………RESPONDENT*** ***(****Being an Appeal from the Ruling of Hon. M. Nabibya delivered on 29th January, 2025 in Thika MCC No. 97 of 2018).* ***REPUBLIC OF KENYA*** ***IN THE CHIEF MAGISTRATE’S COURT AT THIKA*** ***CIVIL SUIT NO. 97 OF 2018*** ***JAMES KURIA WANJIRU………………………………..…………………….PLAINTIFF*** ***-VERSUS-*** ***MARY NJERI NGUGI………………………………………………..………..DEFENDANT*** ***JUDGMENT*** # Introduction 1. This is an Appeal from the Ruling of Hon. Nabibya delivered on the 29th January 2025, in respect of two Applications. The 1st application was dated 30th July, 2024 and it sought to have the decretal amount in the matter liquidated in monthly instalments of Kshs.200,000/-. The Court allowed the application, noting that the Judgment Debtor had already paid some instalments and directed that the instalments commence in the month of February, 2025. 2. The second 2nd application was dated 15th October, 2024 and sought to compel the Judgment creditor to file a declaratory suit against the insurance (Invesco Insurance Company) to compel it to settle the decretal amounts. This application was dismissed with the court finding that it had no role in directing parties on how and against whom proceedings can be commenced. 3. Dissatisfied with the Ruling, the Appellant filed the instant Appeal and has put forward the following grounds of Appeal: - 1. *That the Learned Magistrate erred in law and in fact in allowing the Application dated 30th July 2024 yet it was evident from the face of the subsequent Application dated 15th October 2024 that the Application of 30th July 2024 had since been overtaken by events.* 2. *That the Learned Magistrate erred in law and in fact in holding that the Appellant was obligated to pay the Judgment-Debt.* 3. *That the Learned Magistrate erred in fact and in law in holding that the Court has no role in directing the Respondents on how and against whom proceedings are to be commenced.* 4. *That the trial magistrate erred in law and in fact by ordering the Appellant to pay the debt of Kshs.3,527,871/- in instalments of Kshs.200,000/- per month when the evidence on record shown that the Appellant was an elderly lady, who was bed ridden and her insurance had been placed under statutory management, making it impossible to comply with the orders.* **Submissions by the Appellant** 1. The Appellant submitted that the Application dated 15th October 2024 was filed under Certificate of Urgency in which prayer 3 as read together with prayer 1 of the Certificate clearly stated that the Appellant’s insurer had been placed under statutory management and as such the Application of 30th July 2024 had been overtaken by events. 2. That the trial magistrate failed to read and or appreciate the contents of the aforementioned Applications, which clearly demonstrated, through annexures, that the Judgment debt was being settled by her insurer. 1. That the decision by the trial magistrate to impose payment obligation on the Appellant sufficed to an attempt to re-write the contract between the Appellant’s insurer and the Respondent contrary to the trite principle that it is not the business of the courts to rewrite contracts. The Appellant cited the case of ***Mugo v Equity Bank Ltd (Civil Appeal E62 of 2023) [2023] KEHC 24167 (KLR) (27 October 2023) (Ruling)***. 2. That it was apparent on the face of the applications before the Trial Magistrate that there was a settlement agreement between the Respondent and the Appellant’s insurer and therefore the trial court had the discretion to give effect to the oxygen principles and direct the Respondent and or his counsel to file the suit against the said insurer, which was the appropriate party. Counsel submitted that the court has power to guide parties to ensure expeditious and cost-effective disposal of matters, in line with the overriding objective in Section 1B of the Civil Procedure Act. 1. The Appellant equally questioned the primary suit Judgment blaming the insurance for not ensuring that the Appellant got quality representation. The Appellant even submitted on the degree of the injuries suffered by the Respondent. **Submissions by the Respondent** 1. The Respondent submitted that the Appellant herein was the Defendant in the primary suit. That the insurance company was not a party to the proceedings and was not named as a Defendant, and therefore cannot be brought into the execution proceedings. 2. Counsel submitted that the law firm of Kibet & Rop filed the application dated 30th July, 2024 on behalf of the Judgment debtor who was the Appellant herein and in the Application dated 15th October, 2024 the Appellant described herself as the Judgment debtor and therefore it cannot now be argued that the debtor is the insurance company. 3. Counsel submitted that the suit in court was not a declaratory suit against the insurance but a recovery suit against the insured for negligence, and there is no law that stipulates that the Respondent must recover from the insurance owing to privity of contract. 4. Counsel urged the court to dismiss the Appeal herein, stating that the Appellant herein had filed an Appeal being ***Kiambu HCCA E188 of 2022*** and which was later transferred to Thika as ***Thika HCCA E127 of 2023*** and it was dismissed. According to the Respondent, the instant Appeal against the Ruling of the court is an attempt to sneak in another appeal to the court, which is un procedural. **Analysis and Determination** 1. This is an Appeal against the orders of the trial magistrate given post judgement, mainly to forestall execution. It is against the orders allowing the J/D to settle the amount in instalments, which orders were granted at the instance of the Appellant herein. I note that the Appellant is appealing against an order that it had sought, however, my duty at this stage is to evaluate the application afresh as was held by the Court of Appeal in**Selle & Another vs Associated Motor Boat Company & Others, [1968] EA 123***:* when it stated that "… the duty of the first Appellate court is to reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect…’’ 2. And with that in mind, I will extract the following two issues for determination: - 1. *Whether the Application dated 30th July 2024 had been overtaken by events on the face of the subsequent Application dated 15th October 2024 and whether the Court should not have allowed the Application.* 2. *Whether the Learned Magistrate erred in law and in fact in holding that the Appellant was obligated to pay the Judgment-Debt and that the court had no role in directing the Respondents on how and against whom proceedings are to be commenced.* 3. ***Whether the Application dated 30th July 2024 had been overtaken by events on the face of the subsequent Application dated 15th October 2024 and whether the Court should not have allowed the Application.*** 4. To be clear, the application dated 30th July, 2024 had sought to have the Appellant liquidate the decretal amount in monthly instalments of Kshs.200,000/- per month, and grounded on the fact that some instalments had already been paid, while the Application dated 15th October 2024, had sought to compel the Judgment Creditor to file suit against the Judgment debtor, to recover the decretal amount, and the application was mainly grounded on allegations that there was a settlement agreement between the Respondent herein and the insurance and that the insurance had already been placed under statutory management. 5. I have considered the rival submissions on the issue. The reason advanced by the Appellant to state that the Application dated 30th July, 2024 had been overtaken by events is that the Insurance Company that had insured the Appellant had been placed under statutory Management and that there was a settlement agreement between the Insurance and the Respondent herein. 1. The placement of the Appellant’s Insurer under statutory management is of course not related to the proceedings in this matter. The proceedings herein were between the Respondent and the Appellant and were based on duty of care. The contract of insurance was between the Appellant and their insurer and did not involve the Respodents herein. 2. Secondly, the Appellant argues that there was a settlement agreement between the Respondent and the Insurance company. This agreement was not shown to the court and was not attached to the Application dated 30th July, 2024 or 15th December, 2024. And even assuming that there was a settlement agreement, but which has not been shown to the Court, the court would have had to look at the terms of the agreement to discern its true meaning and effect on the judgment delivered in the primary suit. This is because, the judgment that was entered was against the Appellant herein and not against the insurance. Culpability was on the Appellant and this cannot be transferred to a 3rd party who was not party to the primary proceedings. 3. And in any event, the application before court dated 30th July, 2024 was filed by the Appellant herein. She sought to be allowed to liquidate the decretal amount in monthly instalments of Kshs.200,000/- and the court was kind enough to allow the instalment payment. It is rather strange that the Appellant is appealing against an order they requested for and were granted. If they Appellant thought that their Application was overtaken by events, it was also upon then to inform the trial court of the said position and the court would have given directions. Instead the Appellant did not raise this with the trial court, but went ahead and canvassed the application and submitted that it was merited. 4. My finding is that the application dated the 30th July, 2024 was not overtaken by events and the court did not err in making the orders that it issued. 5. ***Whether the Learned Magistrate erred in law and in fact in holding that the Appellant was obligated to pay the Judgment-Debt and that the court had no role in directing the Respondents on how and against whom proceedings are to be commenced.*** 6. I will tackle the two grounds together because they relate to privity of contract. The Appellant submitted that the trial magistrate failed to read and or appreciate the contents of the Applications, which clearly demonstrated that the Judgment debt was being settled by her insurer and that the orders granted, amounted to rewriting the contract between the Appellant’s insurer and the Respondent. 7. And to just point out, I have had the opportunity to read through the application dated 30th July, 2024 and the submissions thereto. Although the Appellant submitted that the decretal amount was to be liquidated by the insurance, the prayer (v) of the application was specific that the Judgment Debtor be allowed to settle the decretal amount in monthly instalments. There was no mention that the amounts were being settled by the insurance. 8. And coming to the merits of the two grounds, I have considered this argument, and I have already found that there was no agreement shown to the court that the decretal amount was to be settled by the insurer. And in any event, I have also stated that the suit was between the Respondent and the Appellant and the contract of insurance was between the Appellant and her insurers. The Respondent herein was not party to the insurance contract and cannot be dragged into the contract at this stage of the proceedings, or at any point. As was held by the Court of Appeal in ***Octagon Private Investigation Security Services Ltd v Lion of Kenya Insurance Co. Ltd [1994] eKLR*** ***"The right of subrogation in a contract of insurance cannot create privity of contract between the insurance company and third parties...”.*** Similarly, the Court of Appeal gave the general rule on the contracts in ***Savings & Loan (K) Ltd v Kanyenje Karangaita Gakombe & Another [2015] eKLR*** thus: ***"A contract cannot confer rights or impose obligations on any person other than the parties to the contract. Accordingly, a contract cannot be*** ***enforced either by or against a third party."*** 1. My finding is that the obligation to settle the decretal amount herein was and remains with the Appellant and she cannot attempt to create a contract between the Respondent and her insurer by asking the court to direct the Respondent to file a suit against her insurer. The trial court did not err in directing the Appellant to settle the amount and declining to grant orders that could be termed as infringing on the doctrine of privity of contract. 2. **In conclusion, I find that the Appeal herein lacks merit and the same is dismissed with costs to the Respondent.** **Judgment** delivered, dated and signed virtually at **Nairobi** this **31st** dayof **July,** 2026. **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the Presence of:** *Leadys* – Court Assistant *N/A f*or the Appellant. N/A for the Respondent.