[2023] KEHC 22888 (KLR)

Wanyonyi v Monarch Insurance Co Ltd; Otondo (Interested Party) (Sued as the Administrator of the estate of Kelvin Onywoki (Deceased) in Kitale CMCC No 378 of 2021) (Civil Suit 9 of 2023) [2023] KEHC 22888 (KLR) (2 October 2023) (Ruling)

Neutral citation: [2023] KEHC 22888 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Suit 9 of 2023

AC Mrima, J

October 2, 2023

Between

Festus Wanyonyi

Plaintiff

and

Monarch Insurance Co Ltd

Defendant

and

Patrick Akenga Otondo

Interested Party

Sued as the Administrator of the estate of Kelvin Onywoki (Deceased) in Kitale CMCC No 378 of 2021

Ruling

1. The gravamen in this matter is the contract of insurance between the plaintiff and the defendant.

2. It was averred that the plaintiff insured his motor vehicle registration number KBN 015D make Toyota Saloon with the defendant under policy number ELD/0xxx/0xxx/21 for the period from February 19, 2021 to February 18, 2022.

3. That, during the currency of the insurance cover, the motor vehicle was involved in a road traffic accident a result of which one Kelvin Onywoki suffered fatal injuries. The estate later instituted Kitale CMCC No378 of 2021 and judgement therein was subsequently rendered.

4. There being no satisfaction of the decree therein despite demand, the estate executed by way of committal to civil jail. The plaintiff is now still serving a civil jail term.

5. It is on the said background that the instant suit was filed. in this suit, the plaintiff, as the insured, alleged breach of contract on the part of the defendant and prayed for several declaratory orders towards the defendant satisfying the judgement in Kitale CMCC No 378 of 2021.

6. Contemporaneously with the filing of the plaint was the filing of an application by way of notice of motion dated September 11, 2023. The application sought the following orders: -1. That this application be certified urgent and service hereof be dispensed with in the first instance.

2. That this honourable court be pleased to order for the immediate release of the plaintiff/applicant from civil jail respecting committal warrants issued in Kitale CMCC No378 of 2021 Patrick Akenga Otondo v Festus Wanyonyi.

3. That pending the inter-partes hearing hereof, this honourable court be pleased to order for stay of execution of the judgment/decree in Kitale CMCC No378 of 2021 Patrick Akenga Otondo v Festus Wanyonyi.

4. That pending the hearing and determination of this application this honourable court be pleased to order for stay of execution of the judgment/decree in KitaleCMCC No378 of 2021 Patrick Akenga Otondo v Festus Wanyonyi.

5. That pending the hearing and determination of this suit, this honourable court be pleased to order stay of execution of the judgment/decree in Kitale CMCC No378 of 2021 Pat rick Akenga Otondo v Festus Wanyonyi.

6. That pending the hearing and determination of this suit, this honourable court be pleased to order stay of any further proceedings in Kitale CMCC No378 of 2021 Patrick Akenga Otondo v Festus Wanyonyi.

7. That this honourable court be pleased to issue such other or further directions as may be appropriate.

8. That costs hereof be borne by the defendant in any event.

7. The application was supported by two affidavits sworn by the plaintiff. There was the supporting affidavit deposed to on September 11, 2023 and a supplementary affidavit filed on September 20, 2023.

8. When served upon the defendant and the interested party, it was only the interested party who defended the application.

9. The interested party filed grounds of opposition dated September 13, 2023 and a replying affidavit sworn by Patrick Akenga on September 18, 2023.

10. The interested party’s position was that the orders sought cannot issue since the plaintiff began satisfying the decree in KitaleCMCC No 378 of 2021. To that end, the plaintiff made a part payment of Kshs 100,000/= and also issued a post-dated cheque of Kshs 800,000/=.

11. The instant application was also described as an abuse of the court process since it was alleged that the plaintiff had filed a similar suit and an application in Kitale CMCC No 276 of 2023 and which suit and application were still pending.

12. Both parties to the application filed comprehensive submissions wherein they expounded on their rival positions and referred to several decisions.

13. This ruling is, therefore , on the application.

14. This court has carefully considered the instant application, the response, the submissions and the decisions variously referred to. As stated, the defendant did not defend the application, but the interested party.

15. The interested party raised two issues. The first one was that there was a similar application pending in Kitale CMCC No 276 of 2023. In response, the plaintiff annexed copies of a notice to act in person and a notice of withdrawal of suit both dated September 19, 2023. They were also filed on the same date.

16. The interested party, however, argued that there has to be an endorsement of the withdrawal of the suit before one can authoritatively assume that a suit is no more. The decisions in Jenipher Anyango Oloo v Buzeki Enterprises Ltd & Another (2021) eKLR, Jackson Wahome Ngotia v Agridutt (K) Ltd & 2 others and Joseph Ndungu Njoroge v Lilian Atieno Siwolo (2015) eKLR were referred to.

17. This court has considered the decisions. The answer to the issue is in order 25 rule 1 of the Civil Procedure Rules, 2010 which states as follows: -Withdrawal by plaintiff [order 25, rule 1]At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.

18. Therefore, the onus on the part of the party withdrawing the suit is precise. Such a party has to issue a notice in writing to the court and serve it upon the rest of the parties. The issue of endorsement of the notice, hence, does not lie on the party withdrawing the suit. The party must only show that the notice was filed and served.

19. That is the case in this matter. The plaintiff filed and served a notice of withdrawal of Kitale CMCC No 276 of 2023. It was dated and filed on September 19, 2023. Unless for other grounds, which none has been rendered so far, this court considers, finds and hold that the suit instituted as Kitale CMCC No 276 of 2023 was duly withdrawn on the basis of the filed and served notice of withdrawal of the said suit.

20. The second issue raised by the interested party was the part-payment of the judgement sum in the primary suit Kitale CMCC No 378 of 2021.

21. The fact was not disputed by the plaintiff. The interested party did not also disclose the aftermath of the cheque issued by the plaintiff forKshs 800,000/= which was due on April 18, 2023.

22. Be that as it may, and on a keen consideration of the issue, this court is of the considered position that if the duty to satisfy the judgment sum in Kitale CMCC No 378 of 2021 is statutorily decreed upon the defendant herein, then the part-payment by plaintiff does not absolve the defendant from that duty. In such a case, the plaintiff will outrightly be entitled to a refund from the defendant.

23. This court is also alive to the fact that the issues raised by the plaintiff as against the defendant are subject to settlement at the hearing of this suit.

24. At this point in time, this court is to ascertain whether there is a prima facie case for issuing stay orders. As stated earlier, the application was not defended by the defendant. The plaintiff has exhibited a copy of the insurance policy between himself and the defendant. As at now, that policy has not been controverted.

25. By placing the foregoing and the provisions of section 10 of the Insurance (Motor Vehicles Third Party Risks) Act, cap 405 of the Laws of Kenya, side by side, this court finds that there is a prima facie case established by the plaintiff as against the defendant.

26. There are also the conditions to be satisfied in stay applications under order 42 of the Civil Procedure Rules. The conditions are that the applicant must demonstrate that it will suffer substantial loss unless the order is made, the application is made without any unreasonable delay and the applicant offers security for the due performance of the decree. (See Antoine Ndiaye v African Virtual University [2015] eKLR)

27. The Court of Appeal inButt v Rent Restriction Tribunal [1979] KLR discussed what ought to be considered in determining whether to grant or refuse stay of execution. The court stated that the power of the court to grant or refuse an application for a stay of execution is a discretionary, and the discretion should be exercised in such a way as not to prevent an appeal. Secondly, the general principle in granting or refusing a stay is, if there is no overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should the appeal court reverse the judge’s discretion. Thirdly, a judge should not refuse a stay if there are good grounds for granting it merely because, in his or her opinion, a better remedy may become available to the applicant at the end of the proceedings. Finally, the court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and its unique requirements.

28. On the issue of substantial loss, this court does not think that the incarceration of the plaintiff in civil jail per se amounts to substantial loss. The reason is that the process is a lawful one. However, the point of departure as at now is that the plaintiff has preliminarily demonstrated, by way of a prima facie case, that the duty to satisfy the judgment in Kitale CMCC No 378 of 2021 is on the defendant. It is on that basis that this court finds that the continued incarceration of the plaintiff amounts to substantial infringement and loss of his liberty rights. There is need for restraint to, in the first instance, determine the suit herein.

29. Having said so, this court remains alive to the intrigues of filing civil cases up to execution. Many litigants are frustrated in that, on one hand, the matters take so long to be finalized and, on the other hand, the aspect of the costs. Indeed, the advocates are also not an exception. It is, therefore, of paramount importance that even as a court grants stay orders or injunctions, the twin considerations must always be at the fore.

30. It is on the strength of the above that this court hereby makes the following final orders in this matter: -a.There shall be a stay of the execution of Kitale CMCC No 378 of 2021 pending the determination of this suit.b.As such, the plaintiff shall forthwith be released from the civil jail.c.This matter shall be fixed for mention, on a date to issue, to ascertain whether the defendant would have entered appearance or the plaintiff would have applied for an interlocutory judgment. The court will also give further directions and orders towards the hearing of this suit.d.The costs of the notice of motion dated September 11, 2023 shall be in the suit.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 2ND DAY OF OCTOBER, 2023. A. C. MRIMAJUDGERuling No 1 virtually delivered in the presence of:Mr. Kirimi for Mr. Murimi, Counsel for the Applicant/Plaintiff.No appearance for Counsel for the Defendant.Mr. Mukhabane, Counsel for the Interested Party.Regina/Chemutai – Court Assistants.