[2022] KEHC 16304 (KLR)

Thumbi v Monarch Insurance Compant Limited & 3 others (Constitutional Petition E023 of 2021) [2022] KEHC 16304 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16304 (KLR)

Republic of Kenya

In the High Court at Meru

Constitutional Petition E023 of 2021

TW Cherere, J

December 15, 2022

IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS PURSUANT TO ARTICLE, 46,47 AND 40 OF THE CONSTITUTION OF KENYA 2010,SECTION 3A (2) (B) OF THE INSURANCE ACT, CAP 487 LAWS OF KENYA, SECTION 4 AND 5 (B) (IV) OF INSURANCE (MOTOR VEHICLES THIRD PARTY RISKS), CAP 405 LAWS OF KENYA AND SECTION 12 (2), 13(2) AND 94 OF THE CONSUMER PROTECTION ACT NO. 46 OF 2012 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS AND ENFORCEMENT OF THE CONSTITUTION) PRACTICE AND PROCEDURE RULES, 2012

Between

Julius Muthuri Thumbi

Petitioner

and

Monarch Insurance Compant Limited

1st Respondent

Insurance Regulatory Authority

2nd Respondent

Josphat Ntongai

3rd Respondent

Attorney General

4th Respondent

Judgment

Background 1)Judgment was entered for the 3rd respondent as against the petitioner for Kes 14,682,029/- in Meru CMCC No 302 of 2016 and a decree for the sum of Kes 16,682,029/- was issued on October 15, 2021.

2)Petitioner’s pleads that the 1st respondent has failed to settle the claim and stated that even if they pay, they will not pay in excess of Kes 3,000,000/- as a consequence of which his household goods and motor vehicle KBD xxx have been attached in execution of the decree.

3)Petitioner claims that the execution is a violation of his right to consumer protection enshrined under article 46 of theConstitution and that section 5 (b) (iv) of the Insurance (Motor vehicles Third Party Risks) Act, Cap 405 Laws of Kenya which provides for the insurer’s liability shall not be in excess of three million shillings, arising out of a claim by one person is unconstitutional.

4)From the foregoing, petitioner seeks the following orders:a)An order of permanent injunction restraining the 3rd respondent either by themselves, agents, auctioneers, employees, their successors in title or anyone acting on their behalf from auctioning/selling household goods and motor vehicle registration number KBD xxx or levying any further execution on the petitioner with regard to Meru CMCC No 302 of 2016. b)An order for release of the attached household goods and motor vehicle registration number KBD xxx to the petitioner forthwith.c)A declaration that the Petitioner’s right to consumer protection has been violated.d)An order against Monarch Insurance ordering Monarch Insurance to pay the entire decretal award in Meru CMCC NO 302 of2016 to the 3rd respondent and in default execution to issue against Monarch Insurance.e)A declaration that section 5(b) (iv) of Insurance (Motor Vehicles Thirty Party Risks), Cap 405 Laws of Kenya is unconstitutional.f)An order against the 2nd respondent ordering the 2 nd respondent to protect the petitioner as a policy holder in terms of section 3 A (2) (b) of the Insurance Act, Cap 487 Laws of Kenya by ensuring Monarch Insurance pays the entire decretal award in Meru CMCC No 302 of 2016 to the 3rd respondent.g)A declaration that the petitioner’s constitutional right to a fair administrative action has been violated.h)Such other orders that the court may deem just and expedient in the circumstances to grant in order to serve the ends of justice.

5)1st respondent did not oppose the petition. By grounds of opposition filed on November 11, 2020, the 2nd and 4th respondents argue that petitioner has not shown precisely what provisions of theConstitution has been infringed and in what manner.

6)Petition was similarly opposed by the 3rd respondent through his guardian Solomon Gitundu in an affidavit filed on February 22, 2022 in which he accuses the petitioner of using this petition to avoid settling the decretal sum.

Analysis and determination 7)I have considered the submissions filed on behalf of the petitioner and on behalf of the 2nd and 4th respondents and also by the 3rd respondent.

8)The petitioner contends that its insurer’s failure to settle the decretal sum and the execution of the decree by the 4th respondent violates its right enshrined under articles 40, 46 and 47 of theConstitution. In support of its case, petitioner has placed reliance onCaroline Karimi Moses v Insurance Regulatory Authority & 3 others [2019] eKLR and Monarch Insurance Company Limited v Moses Caleb Ochnago & another [2019] eKLR where the courts held that the limitation of the insurance amount payable to Kes 3 million was not justified.

9)The the 2nd and 4th respondents argue petitioner has not demonstrated how and in what manner the 2nd respondent has failed in performing its functions as stipulated under section 3 of the Insurance Act. They argued that section 5 (b) (iv) of the Insurance (Motor vehicles Third Party Risks) Act, Cap 405 Laws of Kenya places an obligation on an insured to pay the sum over and above Kes 3 million nad that that in itself does not violate the petitioner’s rights.

10)3rd respondent on the other hand submitted that the issues raised by petitioner are civil in nature and do not raise any constitutional issue and in support thereof relied on CNM v WMG (2018) eKLR (paragraph 18), the court observed that a constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute.

11)3rd Respondent urged the court to invoke the doctrine of constitutional avoidance which was recapitulated in the persuasive case of Matatu Welfare Association & another v Invesco Assurance Co Ltd & 3 others [2019] eKLRwhere the court stated in part;'I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is, the course which should be followed.'

12)Additionally, 3rd respondent submitted that petition does not meet the threshold of a constitutional petition formulated in the case of Anarita Karimi Njeru v R (No 1) 1979 KLR 154where the court stated that:'We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to theConstitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.

13)3rd respondent likewise relied on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR where the Court of Appeal emphasized the importance of precise claims and Benard Murage v Fine serve Africa Limited & 3 others [2015] eKLR where the court held that not each and every violation of the law must be raised before the High Court as a constitutional issue.

14. After careful consideration of the pleadings and submissions by the petitioner, 2nd and 4th respondents and by 3rd respondent and the authorities that they cited, I note that the issue for determination is whether the petitioner’s fundamental rights under theConstitution were violated by the respondents.

15. The law on the court that has jurisdiction to determine questions relating to execution of decrees is to be found under section 34 of the Civil Procedure Act which provides as follows:All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.

16. In the case of Kenya Bus Services Ltd & 2 others v Attorney General & 2 others [2005] eKLR, the court was faced with a situation such as the one presented in this petition and Nyamu J (as he then was) rendered himself as follows:Judgments of competent courts cannot be challenged in a constitutional court except on grounds of lack of due process or anything that borders on unconstitutionality

17. The petitioner has neither pleaded nor demonstrated that the execution complained of did not follow due process. It has similarly not demonstrated that the 3rd respondent’s realization of the fruits of a lawful decree borders on unconstitutionality.

18. From the foregoing, I am persuaded that the petitioner’s remedy does not lie in a constitutional petition lies in seeking orders of stay of execution in the same suit in which the decree was issued or in filing a declaratory suit against its insurer pursuant to section 10(2) of the Insurance (Motor Vehicle Third Party Risks) Act.

19. For the reason that this petition seeks the interpretation of a statute, does not set out with a reasonable degree of precision that of which petitioner complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed, does not claim that execution of the decree in issue did not follow due process and that the issues relating to the execution, discharge or satisfaction of the decree ought by law be determined by the court executing the decree and not by a separate suit, I find that the petition does not meet the threshold of a constitutional petition.

20. Consequently, the court finds that the petition has no merit and it is dismissed with costs to the 2nd, 3rd and 4th respondents.

DELIVERED THIS 15TH DAY OF DECEMBER 2022WAMAE TW CHEREREJUDGEAppearancesCourt Assistant - KinotiFor Petitioner - Ms Gachohi for GM Wanjohi & Co AdvocatesFor 1st Respondent - N/AFor 2nd & 4th Respondents - For the Attorney GeneralFor 3rd Respondent - Maitai Rimita & Co Advocates