Gateway Insurance Company Limited v Catherine Ndinda Munyao [2001] KECA 80 (KLR)
The bottom line
#Kenya's Court of Appeal paused a KSh 2 million insurance payout, ruling voluntary passengers in private cars may not sue insurers directly.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal raises an arguable issue, namely whether a voluntary passenger in a private car is entitled to sue the insurer of the tort-feasor under Sections 5 and 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act
- 2.Whether the success of the intended appeal would be rendered nugatory if a stay of execution were not granted
Key legal issues
#Whether the intended appeal was arguable
The court found the issue of whether a voluntary passenger in a private car can sue the insurer under Sections 5 and 10(1) of the Act to be arguable, not frivolous.
The court read Sections 5 and 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act, Cap. 405, which mandate insurers to pay judgments only where the liability is of a kind required to be covered by the policy. Section 5's proviso excludes liability for death of or bodily injury to persons carried in the vehicle unless carried for hire or reward or under a contract of employment. Since the respondent's deceased husband was allegedly a passenger in the insured private vehicle, the applicant's intended argument on this exclusion was not frivolous and satisfied the arguability threshold.
Whether the appeal would be rendered nugatory without a stay
The court was satisfied that the nugatory test was met in the circumstances, given the decree exceeding Shs.2,000,000/= and the respondent's stated lack of means, and granted the stay.
The decretal amount was in excess of Shs.2,000,000/=. Counsel for the respondent had sworn an affidavit in the superior court stating that the respondent was not a woman of means, which cut both ways: payment out could leave an insurer recovering from an impecunious judgment-creditor if the appeal succeeded. The court held that sympathy for the respondent's plight could not override the legal requirements, and proceeded to grant the stay of execution pending the intended appeal.
Legal principles established
#- On a Rule 5(2)(b) stay application, the applicant must show an arguable appeal and that the appeal would be rendered nugatory if stay is not granted; sympathy for a judgment-creditor's lack of means does not displace the legal test.
- A reading of Sections 5 and 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act, Cap. 405 indicates that a voluntary passenger in a private car may not be a party entitled to sue the insurer of a tort-feasor, save where passengers are carried for hire or reward or in pursuance of a contract of employment.
Court orders
#- 1.Stay of execution of the decree in H.C.C.C. No. 5806 of 1993 dated 6th February 2001 granted, pending the hearing and determination of the intended appeal or further orders
- 2.Costs of the application to be costs in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 5806 of 1993
- Jurisdiction invoked
- Inherent jurisdiction of the Court of Appeal to grant a stay of execution pending the hearing and determination of an intended appeal (Rule 5(2)(b) application, per the cause title '105/2001 UR')
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Reading of Sections 5 and 10(1) of the Act shows that a voluntary passenger in a private car may not be a party entitled to sue an insurer of a tort-feasor.
The applicant in its intended appeal intends to argue this issue and we are unable to say that the issue is frivolous. It is certainly an arguable one.
In these circumstances the application succeeds and we grant a stay of execution of the decree in H.C.C.C. NO. 5806 OF 1993 dated 6th February, 2001 pending the hearing and determination of the intended appeal or further orders.
The costs of this application will be costs in the intended appeal.
Issues in the judgment
#The judgment does not expressly cite the rule under which the application was brought; the cause title designation '(105/2001 UR)' suggests a Rule 5(2)(b) application but the rule is never named in the text.
The record states the respondent sought to enforce a judgment in her favour, but counsel's affidavit refers to the respondent's deceased husband as the passenger, leaving the chain of title under the judgment unclear on the face of the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gateway Insurance Company Limited v Catherine Ndinda Munyao [2001] KECA 80 (KLR)", Case Analysis (2001). Civil Application No. Nai. 199 of 2001 (105/2001 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/80/eng@2001-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.