[2009] KEHC 3049 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)

Civil Case 402 of 2009

STEPHEN MBOGO MWANGI…….….………..PLAINTIFF

- VERSUS-

BLUESHIELD INSURANCE CO.LTD.........1ST DEFENDANT

REGINA MUTHONI MWANGI……...……2ND DEFENDANT

S. N. MBIJIWE T/A

BEALINE KENYA AUCTIONEERS…..….3RD DEFENDANT

RULING

The plaintiff filed suit against, inter alia, the 1st defendant Blueshield Insurance Company Ltd, seeking a declaratory order of this court that the 1st defendant be compelled to settle the entire amount decreed in Murang’a SPMCCC No. 261 of 2008 Regina Muthoni Gachambuiya vs Martin Wanjohi & 2 others (hereinafter referred to as the Murang’a case). Contemporaneous, the plaintiff filed an application pursuant to provisions of Section 3A of the Civil Procedure Act and Order XXXIX Rules 1, 2 & 9 of the Civil Procedure Rules, seeking orders of temporary injunction to restrain the 2nd and the 3rd defendants by themselves or by their servants or agents from selling, by way of public auction or disposing in any manner whatsoever, motor vehicle Reg. No.KAR 483D pending the hearing and determination of the suit. The plaintiff further prayed for an order of mandatory injunction to compel the 1st defendant to pay to the 2nd defendant the entire sum as per the decree issued in the Murang’a case together with all other consequential costs. The application is supported by the annexed affidavit of the plaintiff and the grounds stated on the face of the application. The application is opposed. The 2nd and 3rd defendants swore replying affidavits in opposition to the application.

At the hearing of the application, I heard rival submissions made by Mr. Njenga for the plaintiff, Mr. Mbuthia for the 2nd defendant and Mr. Oduor for the 3rd defendant. I have carefully considered the arguments made by the parties in this application. I have also considered the pleadings filed by the parties herein in support of their respective opposing positions. The issue for determination by this court is whether the plaintiff established a case to entitle this court grant him the order of injunction sought. The principles to be considered by this court in determining whether or not to grant the interlocutory injunction sought are well settled. The plaintiff must establish that he has a prima facie case with a high probability of success. He must also establish that he would suffer irreparable damage that is unlikely to be compensated by an award of damages should the injunction sought not be granted. If the court is in doubt, it will determine the application on a balance of convenience (see Giella vs Cassman Brown [1973] EA 358).

In the present application, the facts are more or less not in dispute. The plaintiff is the owner of a public service motor vehicle registration No.KAR 483D. At the material time, the plaintiff had insured the said motor vehicle with the 1st defendant. On 20th November, 2007 the said motor vehicle was involved in an accident with another public service motor vehicle registration No.KAY 369Q wherein the 2nd defendant herein was a passenger. As a result of the said accident, the 2nd defendant was injured. Subsequently thereafter, the 2nd defendant filed the Murang’a case seeking to be paid compensation on account of the injuries that she had sustained. It is not disputed that upon being served with summons to enter appearance, the plaintiff notified the 1st defendant who took over the conduct of the matter. The 1st defendant appointed the firm of Lucy Mwai & Company Advocates to act on behalf of the plaintiff herein in the matter. The suit was compromised on liability and consent judgment was entered thereto. The plaintiff and the 2nd defendant agreed to apportion liability as between themselves at the ratio of 90:10 in favour of the 2nd defendant. The issue as to quantum of damages was left for determination by the court.

On 8th April, 2009, judgment was entered in favour of the 2nd defendant as against the plaintiff for sum of Kshs.138,357/= plus costs and interest. It was apparent that after the decree was issued by the court, and after the 1st defendant had been notified of the judgment, that no settlement of the decree was forthcoming. The 2nd defendant obtained warrants of attachment and sale and instructed the 3rd defendant to execute the said warrants against the plaintiff. The plaintiff’s motor vehicle has already been attached. The thrust of the plaintiff’s case in this suit is that the 1st defendant, as the insurer of the said motor vehicle should be compelled to settle the said decree in accordance with the provisions of Section 10 (1) of the Insurance (Motor Vehicles Third Party Risks) Act which legally mandates the 1st defendant to settle such a claim. Pending the hearing and determination of the plaintiff’s suit as against the 1st defendant, the plaintiff wishes to stop the 2nd defendant through the 3rd defendant from executing the warrants of attachment against him in satisfaction of the decree in the Murang’a case hence this application for injunction.

Can this court grant injunction to restrain the 2nd defendant from executing a decree issued in her favour in the circumstances narrated above? I do not think so. Under Section 34 (1) of the Civil Procedure Act, all questions arising between the parties in the suit where the decree was passed relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not in a separate suit. It is evident that the plaintiff has a legitimate and valid cause of action against the 1st defendant. Under the Insurance Act, the 1st defendant is legally mandated to settle any claim once it became due. The plaintiff is therefore entitled to seek the court’s intervention when it is apparent that the 1st defendant had failed to abide by its statutory obligation to settle the claim.

However, the plaintiff cannot frustrate execution of a decree issued by a court of competent jurisdiction on the basis that he has a pending suit against an insurance company seeking to enforce the settlement of the claim as provided by the law. In the present application, it is evident that this court lacks jurisdiction to entertain any claim in regard to whether a decree passed by a subordinate court should be executed or not. The matter before this court is not an appeal. The plaintiff is not challenging the judgment of the subordinate court that the decree emanated from. The plaintiff has not sought to invoke this court’s judicial review jurisdiction in regard to the said decree issued by the Murang’a subordinate court. Section 34(1) of the Civil Procedure Act prohibits this court from considering any issue regarding a decree issued by another court, even if that court is subordinate to it. This court can only grant a remedy in regard to the said decree if its jurisdiction is properly invoked. In the present application, it is clear that the plaintiff has failed to establish a prima facie case.

The plaintiff has failed to persuade the court that it has the requisite jurisdiction to grant him the interlocutory application of injunction sought. The plaintiff is at liberty to pursue the 1st defendant for settlement of the decree issued in the Murang’a case. He has no cause of action against the 2nd and 3rd defendants in this case. It is this court’s view that the plaintiff conveniently enjoined the 2nd and 3rd defendants into this suit for the purpose of obtaining interlocutory orders of injunction. From the plaint, it is evident that the plaintiff has no claim in this suit against the 2nd and 3rd defendants. The application sought cannot therefore in the circumstances be granted.

I find no merit with the plaintiff’s application dated 3rd June, 2009. It is hereby dismissed with costs. It is so ordered.

DATED at NAIROBI this 19th day of JUNE, 2009.

L. KIMARU

JUDGE