[2023] KEHC 21133 (KLR)
The court found that the applicant had not appealed the judgment but sought a stay of execution pending the outcome of a declaratory suit against his insurer. The applicant claimed he would suffer substantial loss if the stay was not granted, but also averred that his insurer would reimburse him if the declaratory...
Source-derived case information.
- Citation
- [2023] KEHC 21133 (KLR)
- Parties
- Plaintiff: Patrick Mutuma Ntiritu; Defendant: Boniface Mwenda Muriira
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case E001 of 2021
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Determination of Declaratory Suit
- Outcome
- application dismissed with costs to the respondent
- Judges
- TW Cherere
- Legal Topics
- Stay of Execution, Declaratory Suit, Substantial Loss, Insurer Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Mutuma Ntiritu
Plaintiff
Boniface Mwenda Muriira
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Determination of Declaratory Suit
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution of judgment pending determination of a declaratory suit against his insurer.
- 2 Whether the existence of a declaratory suit between the applicant and his insurer is sufficient ground to stay execution against the applicant.
- 3 Whether the applicant will suffer substantial loss if stay is not granted.
Ratio Decidendi
The court found that the applicant had not appealed the judgment but sought a stay of execution pending the outcome of a declaratory suit against his insurer. The applicant claimed he would suffer substantial loss if the stay was not granted, but also averred that his insurer would reimburse him if the declaratory suit succeeded. The court held that this admission negated the claim of substantial loss, as the applicant would not be left without recourse. Furthermore, the respondent, as the judgment creditor, was entitled to enjoy the fruits of his judgment, and the existence of a separate declaratory suit to which the respondent was not a party did not constitute sufficient grounds to...
Court Disposition
application dismissed with costs to the respondent
Orders
- The notice of motion dated 05th June, 2023 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
Ntiritu v Muriira (Civil Case E001 of 2021) [2023] KEHC 21133 (KLR) (27 July 2023) (Ruling)
Neutral citation: [2023] KEHC 21133 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Case E001 of 2021
TW Cherere, J
July 27, 2023
Between
Patrick Mutuma Ntiritu
Plaintiff
and
Boniface Mwenda Muriira
Defendant
Ruling
Background 1. On the dated 27th April, 2023, this court entered judgment for the Respondent as against the Applicant for KES. 8, 122,971/- plus costs of the suit and interest.
2. By notice of motion dated 05th June, 2023 supported by an affidavit sworn by the Applicant on even date and a further affidavit sworn on 21st June, 2023, Applicant seeks stay of execution of the judgment pending the hearing and determination of a declaratory suit Meru CMCC NO. E102 of 2023 he has filed against his insurer Britam Insurance Limited which he says is duty bound to settle the decretal sum.
3. Respondent opposed the application vide his replying affidavit sworn on 16th June, 2023 in which he avers that he is not privy to the contract of insurance between Applicant and his insurer and the pending suit between them should not be a bar to settlement of the decretal sum.
4. I have considered the application in the light of affidavit evidence on record. The record demonstrates that Applicant has not appealed the judgment of this court but seeks to stay of execution of the judgment pending the determination of a declaratory suit between him and his insurer.
5. Applicant deposes that he would be financially crippled if the orders sought are not granted. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting stay (See Kenya Shell Limited v Benjamin Karuga Kigibu & Ruth Wairimu Karuga (1982-1988) 1 KAR 1018). Since Applicant also avers that his insurer will reimburse him if the declaratory suit succeeds, I find that Applicant stands to suffer no substantial loss and the order of stay is therefore unmerited.
6. Respondent has a lawful judgment in his favour which the Applicant is lawfully bound to satisfy and therefore the right to enjoy the fruits of his judgment should not be hindered only by the existence of a declaratory suit to which he is not a party.
7. From the foregoing analysis, I find that the notice of motion dated 05th June, 2023 has no merit and it is dismissed with costs to the Respondent.
DATED AT MERU THIS 27 THDAY OF JULY 2023. T. W. CHEREREJUDGEAppearances;Court Assistant - Morris KinotiFor Plaintiff/Applicant - Mr. Laichena for Laichena Mugambi & Ayieko Advocates LLPFor Respondent - Mr. Olunga for Samuel Gitonga & Associates