1.The 1st applicant is the registered owner of the Motor Vehicle Registration number KCF 372 C. He claims that he insured it with the Respondent vide policy number 050/0804/1/028540/2015/11 which commenced on 24th November, 2016 and expired on 23rd December, 2016 covering such persons or class of persons as specified in the policy in respect of injury or damages arising out of use of the said Motor Vehicle.
2.That motor vehicle was involved in a road accident on or about 4th December 2014 along Eldoret- Nakuru Road and as a result of the accident, Christopher Mokua Monyoncho, the interested party herein, sustained body injuries. He filed suit seeking compensation for special and general damages in Molo CMCC No. 109 of 2017 Christopher Mokua Monyoncho vs Joseph Maina & David Kipruto Tenai. On 22nd July 2019 Judgement was entered in favour of the interested party for Kshs. 1,512,550 plus cost and interest.
3.It is his position that he notified the respondent but it failed and or neglected to take any action in the matter and as such the aforementioned matter proceeded to its logical conclusion without its participation and now he faces the risk of execution against him.
4.On 29th May, 2021, he filed Notice of Motion under Article 40,48,50(1) and 159 of the Constitution of Kenya, Sections 1A,1B,63E and 3A of the Civil Procedure Act, Cap 21 of the Laws of Kenya, Order 22 Rule 22 and Order 51 Rule 18 of the Civil Procedure Rules,2010, seeking inter alia that:-1.Spent2.The Court be pleased to issue a stay of execution of Judgement and decree and any further proceedings in Molo Cmcc No.109 of 2017 Christopher Mokua Monyoncho vs Joseph Maina & David Kipruto Tenai pending the hearing and determination of this suit.3.Costs for this Application be provided for.
5.The grounds for the application are stated on the face of the application and his Affidavit sworn on 31st May 2021 on his behalf and on behalf of David Kipruto Tenai, 2nd Applicant.
6.It is the Applicant’s contention that he and the respondent had a contract within which the respondent was to pay compensation to the interested party. That since the respondent has failed to do so he has since filed a declaratory suit against the respondent and if orders sought are not granted the suit shall be rendered nugatory.
7.The interested party Christopher Mokua Monyoncho opposed the application vide Replying Affidavit sworn on 21st June, 2021.
8.He deposed that he is the decree holder in Molo CMCC No.109 of 2017 Christopher Mokua Monyoncho vs Joseph Maina and David Kipruto Tenai; that the matter in the lower court proceeded ex parte and on 22nd July, 2019 judgment was entered in his favour for Kshs.1,512,550/=; that the applicants then moved the lower court by Notice of Motion dated 29th October, 2019 seeking to set aside the ex parte proceedings and judgment but the Application was found to be unmeritorious and was dismissed.
9.He contended that the Applicant had not appealed against the decision or taken any further action until he commenced execution proceedings against him.
10.It is his position that he is not bound by the contract between the Applicant and the Respondent. That the respondent does not deserve the orders sought as he has not offered any security to demonstrate any good will. In any event the declaratory suit against the respondent is an afterthought and in bad faith as there are no reasons advanced by the applicant for the delay in instituting the same from the time the judgment was delivered.
11.The orders sought if granted greatly prejudice him as the realization of the fruits of his judgment will be unduly prolonged by litigation he is not privy to.
12.The respondent despite due service never filed any response to the Application.
13.The application was canvassed through written submissions.
14.The applicants filed their submissions on 29th July 2021.
15.They distilled three issues for determination. Namely:1.Whether there existed a contract between the applicant and the respondent.2.Whether the respondent breached the contract.3.Whether it is appropriate to grant the orders for stay of execution pending the hearing and determination of the declaratory suit.
16.On the first issue, the Applicants submitted that he took the insurance policy from the respondent under policy number 050/0804/1/028540/2015/11 for his motor vehicle registration number KCF 372 C commencing on 24th November, 2016 and expiring on 23rd December, 2016 and that the interested party was involved in an accident on or about 4th December, 2016 when the said policy was still in force and as such the Respondent under section 10(1) of the Insurance Motor Vehicle third parties risks Act Cap 405, is bound to indemnify him in respect of liability to third parties intended to be protected under section 5(b) of the Act for injuries occasioned to him in the use of the Motor Vehicle on the road.
17.On the second issue, the applicants submitted that the respondent has breached his contractual obligation by failing to satisfy the decree since it is statutorily bound to indemnify all 3rd party losses that occur during the subsistence of the policy.
18.Regarding the third issue, the applicants submitted that the purpose of the above provisions of Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 is to ensure that a third party injured by an insured motor vehicle gets compensated for his suffering, loss or inconvenience in the event the owner or driver of the accident motor vehicle is unable to settle the claims. For this proposition reliance was placed on the cases of Isaack Wakoli vs Xplico Insurance Company  eKLR cited with approval in the case of New Great Insurance Co. of India Ltd vs Lilian Everlyne Cross & Another (1966) EA, 90 & Charles Makenzi Wambua vs Africa Merchant Assurance Co. Ltd & another  eKLR.
The Interested Party’s Submissions
19.The interested party filed his Submissions on 19th July 2021.
20.He submitted that it is an established principle of law and requirements of Order 22 Rule 22 that for orders of stay of execution of a decree to issue, the court must satisfy itself of two things namely; that there is sufficient cause shown & that the Applicant is capable of offering security or adhering to other conditions that may be imposed by the court.
21.The interested party submitted that the applicant has not shown sufficient cause for grant of the orders sought because;1.There is no certificate of insurance to prove existing policy as averred in paragraph 4 of the Supporting Affidavit2.The applicant has recourse in law under the principle of indemnity which allows him to be compensated and restored to its initial financial position should he successfully prove his case against the respondent and that that right of action does not bar the interested party from executing the decree issued in his favour against the applicant directly. For this proposition he cited the case of Peter Kilonzo Kioko Vs Monarch Insurance Co. Ltd; Kisakwa Ndolo King’oku (Sued As Legal Representative Of The Estate Of Mwania Kisakwa – Deceased (Interested Party)  eKLR where the court held that;3.The Applicant has not demonstrated that he is not a person of means and therefore unable to make good the decretal sum4.This court under sections 1A & 1B of the Civil Procedure Act the court has overriding objective to have disputes resolved in a just, expeditious, proportionate and affordable manner and therefore it will be unfair to keep him waiting as the applicant and the respondent resolve issues which he is not privy to.
22.On security, the interested party submitted that the issue of costs was well addressed by the court in the case of Arun C. Sharma vs Ashana Raukundalia t/a Rairundalia & Co. Advocates & 2 others  eKLR, where the court stated:
23.He thus submitted that the Applicants have not offered any security to be considered by this Honourable Court and as such they are undeserving of the orders sought.
Issues for Determination
24.The only issue that arises for determination is whether this court should grant stay of execution of judgement, decree and any further proceedings in Molo CMCC No.109 Of 2017 Christopher Mokua Monyoncho vs Joseph Maina & David Kipruto Tenai.
Analysis & Determination
25.Order 22 rule 22 provides:
25.The applicant has not established prima facie that the respondent was the insurer of the said motor vehicle as no certificate of insurance has been annexed to the Applicants’ Supporting affidavit but the police abstract that was issued to the interested party after the accident confirms that the insurer of the Motor vehicle in question is the respondent herein, so that settles the issue. However as to the contractual agreement that would depend on the contract of insurance and that would be an issue for determination in the suit the applicant intends to prosecute.
26.However as correctly submitted and pleaded by the interested party he is not a party to the contractual arrangement between the applicant and the respondent and the orders of stay if granted will affect his interest and the enjoyment of his of the fruits of his labour.
27.While the 1st Applicant as an insured is entitled to seek a declaration that it’s insurer(the respondent herein) is entitled to settle the claims covered under the insurance policy, that statutory right of action does not however bar a person who is injured from executing the decree issued in his favour against the insured directly. In Dolk Limited vs Invesco Assurance Company Limited & 5 Others  eKLR and that of Muthuri Ntara & Another vs Francis Mworia Igweta  eKLR the court stated that despite the fact that section 10 (1) of the Insurance (Motor Vehicle Third Party Risks) Act provides for the mandatory satisfaction of a judgement of any sum payable to its insured under a policy, the section does not provide for a stay of execution against the insured by the third party and further that the statutory right to seek a declaration against the insurer by the insured does not and cannot bar a decree holder from executing his/her decree against the judgment debtor who is the insured.
28.The applicant has not appealed against the judgment delivered in the Molo neither has he challenged by way of review. The 1st Applicant has not also demonstrated that he lacks means of settling the suit herein neither has he offered any security. It will be unfair to keep the interested party waiting longer in order to enjoy the fruits of his judgment.
29.Jenipher Anyango Oloo vs Buzeki Enterprises Limited & another  eKLR dismissed a similar application on grounds that filing of a declaratory suit is no bar to execution of decree by a genuine decree holder. The court stated as follows:-
30.More importantly the proceedings in the lower court were undefended. Efforts to set them aside were denied by the court and the applicant did not challenge that Ruling. The judgment against him was passed in 2019. This application was filed on 3rd June 2021. The applicant retains the right to seek compensation from the respondent.
31.The applicant has also not provided any security as required by order 22 of the Civil Procedure Rules 2010.
32.Clearly this application is not merited and the same is dismissed with costs.