[2017] KEHC 1149 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL SUIT NO.12 OF 2017

SAMUEL GITHINJI MWANGI….................................PLAINTIFF

-VERSUS-

XPLICO INSURANCE COMPANY LIMITED.........DEFENDANT

AND

HELLEN WANJIRU MBUGUA

MARY WAMBUI WANJIKU (Administrator of the estate of

STEPHEN WAGEREKA (Deceased)..INTERESTED PARTIES

RULING

1. Samuel Githinji Mwangi (the plaintiff) was the lawful owner of the motor vehicle registration KAB 457M. According to court documents, he insured the vehicle with Xplico Insurance Company Ltd (hereinafter the insurer) under Policy No.0801008245/13/10/030. On 17th March 2015, the said vehicle was involved in a motor vehicle accident in which one Stephen Wagereka(now deceased) suffered injuries. His kin Hellen Wanjiru sued the owner Samuel Githinji Mwangi in Nakuru CMCC No.948/2015. In a judgment delivered on 20th December, 2016 the court found in favour of the plaintiffs. The insurer however declined to pay necessitating the present declaratory suit by the plaintiff.

2. Filed along with the suit is the instant notice of motion dated 3rd March 2017 which seeks orders that:

a) That the application be certified urgent and service be dispensed with.

b) That pending the inter-parties herein the court be pleased to stay execution of the decree in Nakuru CMCC No.948 of 2015.

c) That pending the hearing and determination of this application this Honourable Court be pleased to stay execution in Nakuru CMCC 948 of 2015.

d) That pending the hearing and determination of this application this Honourable Court be pleased to stay further proceedings in Nakuru CMCC No.948 of 2015.

e) That pending the hearing and determination of this suit this Honourable Court be pleased to stay further proceedings Nakuru CMCC No.948 of 2015.

f) The costs to be borne by the defendant.

3. The application is supported by the affidavit of Samuel Githinji Mwangi. In summary his averments are to the effect that he held a lawful insurance contract with the insurer and that it was an express and implied term of contract that the insurer would at all times indemnify him against any loss or injury occasioned to any 3rd party; that he dutifully paid the requisite premiums; that upon being sued by the interested parties herein, he brought the suit to the knowledge of the insurer who duly appointed an advocate to defend him; and, that he paid the requisite excess fees prior to being defended by the insurer. Finally, the applicant avers that the insurer refused to settle the claim exposing him to execution.

4. The application is opposed by the Interested Parties. Their Counsel Githiru & Co. Advocates filed grounds of opposition on 14th March 2017. They stated that the application was gross abuse of the process of court as the applicants had filed a similar application in the lower court. That the applicant had not satisfied the requirements for grant of stay; and, that the applicant was working in cohorts with Xplico Insurance Company to deny the interested parties the fruits of the judgment. In addition, Hellen Wanjiru Mbugua swore a replying affidavit filed on 22nd March 2017 in which she deponed that she was the mother of the deceased (Stephen Wagereka) whose death was caused by the plaintiff’s motor vehicle KAB 457M; that a 45 day stay of execution had been granted by the lower court but the plaintiff failed to settle the decretal sum; that the plaintiff had filed several similar applications; and, that the plaintiff had enjoined her in a suit against the insurance company without her consent.

5. I heard oral submissions of the parties on 14th June 2017. The defendant Xplico Insurance Company Ltd did not oppose the application. Their counsel Mr. Karanja had told the court on 22nd March 2017 that he had instructions not to oppose the application.

6. Mr. Murimi for the plaintiff applicant relied on the grounds set out in the application and the supporting affidavit. He submitted that the applicant was duly insured by the defendant. That after the interested parties successfully sued the applicant in Nakuru CMCC No.948 of 2015, the insurer failed to pay the decretal sum. That the failure of the insurer to pay had necessitated the execution against the applicant. He submitted that the stay order was necessary to enable the applicant prosecute the present suit against the insurer as the applicant would suffer loss if the execution was not granted. He relied on the following authorities: Apollo Ogunda Vs African Merchant AssuranceCompany Limited and 4 Others, Nakuru Hcc. No.100 Of 2013; Phipson on Evidence 17th Edition Sweet & Maxwell at Paragraphs 5 – 18 (Pages 117 and 118); and Gerald Wachira T/A Wachira Saw Mills Vs Blue Shield Insurance Company Limited, Nakuru Hcc No.31 Of 1995.

7. Counsel further submitted that it was justifiable to enjoin the Interested Parties. For this proposition, he relied on Gerald Wachira t/a Wachira Saw Mills VS Blue shield Insurance, Nakuru HCC. 31 of 1995. He submitted that the Interested Parties would not be prejudiced in any way. He also denied the suggestion by the Interested Party that the applicant was acting in cohorts with the insurer. On security, counsel submitted that the insurer should provide security.

8. Mr. Githiru for the Interested Parties relied on the replying affidavit sworn by Hellen Wanjiru Mbugua. He submitted that the Interested Parties were not party to the present suit and that the applicant should seek indemnity from the insurer. That he should first pay in the suit in the lower court and seek indemnity later. He submitted that the applicant had filed multiple applications which he had left hanging. Counsel further submitted that there was inordinate delay on the part of the applicants and that the applicants were seeking to use the court process to aid collusion between the insurer and insured. He prayed that the application be dismissed with costs.

9. The facts set out in the application are largely not disputed. It is not denied that the applicant was insured by the defendant in this case. It is also common ground that the interested party successfully sued the applicant and got judgment in her favour to which the subject execution proceedings relate. The Interested Party has however distanced herself from the present suit and application arguing that the dispute was strictly between the insured (plaintiff/applicant) and the insurer (defendant/respondent) she argues that she has wrongly been enjoined in a suit without her consent.

10. It is however clear to the court that the Interested Party, being the decree holder would be affected by the outcome of this application. I would at this interlocutory stage hesitate to make a finding on whether or not she should be enjoined. On the face of it Order 1would seem to give legal backing to her being enjoined.

11. The issue before me is firstly, whether the applicant is deserving of the stay order, and secondly whether the grant of such order would be prejudicial to the interested parties. The principles that guide an application for stay of execution are set out in Order 42 Rule 2. The applicant must show that substantial loss may result if the order is not granted; that the application is made without unreasonable delay and that he is willing to provide security for due performance of such decree as may ultimately be binding on him. See Global Tours and Travels Ltd – Winding Up Cause No. 43 of 200 (UR).See alsoAlliance Media Kenya Ltd V World Duty Free Co. Ltd.

12. Having considered the rival affidavits and the oral submissions of counsel and the authorities relied on, I am satisfied that the application is properly before court. It is apparent that the applicant would suffer substantial loss if his property which has already been proclaimed is sold. The question whether or not the insurer who is the defendant in the case would be held liable is left to the determination of the trial court. On the timeliness of the application, it is apparent that the same has been brought without inordinate delay. According to the supporting documents which have not been disputed, the execution proceedings were commenced in February 2017. The application was filed on 3rd March 2017. It is therefore in my finding that it has been brought timeously.

13. It is a condition of stay that the applicant must provide security. The applicant has however submitted that the order for security ought to be directed at the defendant. I would think however that the applicant, being the person who would lose if the stay order was not granted, would be willing to offer security. Further, the decree would ultimately be binding on him if he were to fail in the declaratory suit. Justice must cut both ways and it would, in the circumstances of this case, be prejudicial to the Interested Party if security was not provided. It would further be prejudicial as delay would continue to deny her the fruits of her judgment if the suit was not heard and determined expeditiously. See Vishram Ravji Halai vs. Thornton Turpin (1963) Ltd, Civil Application 15 of 1990 (UR)

14. For the above reasons, I allow the application dated 3rd March 2017. A stay of execution is granted pending the hearing and determination of the suit. The applicant shall deposit in court One hundred thousand shillings (Kshs.100,000) within 30 days of today. I further direct that the suit be set down for hearing within 45 days of this ruling. The stay shall automatically lapse at the 46th day of this Ruling if the plaintiff shall not have taken any active steps to prosecute the case.

Ruling delivered, dated and signed in open court this 12th day of October 2017

...............................

R. LAGAT KORIR

JUDGE

In the presence of:

C/A Emojong

Mr. Kambo holding brief for Murimi for plaintiff

N/A for defendant

Ms. Oseko holding brief for Githiru for interested party