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High CourtDismissedNot stated in the judgment (Plaintiff's Notice of Motion dated 3rd November 2017)

In re: Declaratory Suit – Stay of Proceedings in Milimani CMCC No 1349 of 2015 (Alice Kawira Wachira vs Andrew Kariuki & Ngure Isaac)

High Court of Kenya
27 November 2018
2,208 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A separate lawsuit cannot be used to force a pause on another person's legal proceedings.

What this practically means

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Executive summary

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The Plaintiff insurer filed a Notice of Motion dated 3rd November 2017 under Order 51 of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act seeking a stay of proceedings in Milimani CMCC No 1349 of 2015 (Alice Kawira Wachira vs Andrew Kariuki & Ngure Isaac), a compensation suit arising from a road accident of 7th February 2014 involving Motor Vehicle KAS 292S. The insurer had issued a declaratory suit seeking to avoid liability under Policy Cover Number HQS/701/044283/2011, alleging that the 1st Defendant had transferred the vehicle to the 2nd Defendant without notifying it, contrary to the policy terms. The 1st Defendant opposed, arguing the application was a parachute to save the lower court suit from collapsing for want of prosecution, and that he had never been served in the lower court matter. The 2nd Defendant filed no response. The court held that a stay under Section 63(e) presupposes an interlocutory order within the suit before the court and cannot be used to stay proceedings in which the applicant is not a party, as that would cause anarchy. It further held that staying the lower court suit would fetter the plaintiff therein's right of access to justice under Article 50 of the Constitution, since she had no knowledge of the declaratory suit. Relying on Section 10 of the Insurance (Third Party Risks) Act, the court noted the insurer could avoid liability even after judgment, for instance where it had no notice of the proceedings, so a stay would be futile. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether stay of proceedings in a suit in which the applicant is not a party can be granted under Section 63(e) of the Civil Procedure Act

Holding

No - Section 63(e) presupposes that the interlocutory order be made within the suit before the court; staying proceedings in which the applicant is not a party would cause anarchy.

Reasoning

The court held that an interlocutory order must be within the suit currently before the court. The plaintiff in the lower court was not a party to the declaratory suit, so staying her case would prejudice a stranger to these proceedings and open the door to non-parties halting suits, causing anarchy. The court associated itself with Nyamira F.C.S on the meaning of interlocutory orders.

p. 3
02

Whether the insurer's declaratory suit justifies staying the third-party compensation suit

Holding

No - the insurer has an adequate remedy even if the lower court suit proceeds to judgment, since Section 10 of the Insurance (Third Party Risks) Act permits avoidance of liability after judgment.

Reasoning

The court noted that under Section 10(1) and (2) of the Insurance (Third Party Risks) Act, an insurer can avoid liability after judgment has been entered, for example where it had no notice of the proceedings within fourteen days of commencement. It was unclear whether the lower court plaintiff had served such notice, so staying the lower court suit would be futile.

p. 3
03

Whether staying the lower court proceedings would prejudice the plaintiff therein

Holding

Yes - the lower court plaintiff was not a party to this suit and had no knowledge of it; staying her case would fetter her right of access to justice under Article 50 of the Constitution.

Reasoning

The court found that the parties in the declaratory suit differed from those in the lower court suit. Staying the lower court matter merely so the insurer's suit could be heard first would greatly prejudice the plaintiff therein, who had no knowledge of the declaratory proceedings, contrary to Article 50 of the Constitution. The insurer could proceed expeditiously with its own suit without fettering her rights.

p. 2

Legal principles established

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  • An interlocutory order under Section 63(e) of the Civil Procedure Act can only be made within the suit currently before the court; the provision cannot be used to stay proceedings in which the applicant is not a party.
  • The main suit must be alive for there to be an interlocutory order.
  • Under Section 10 of the Insurance (Third Party Risks) Act, an insurer may avoid payment after judgment where it had no notice of the proceedings before or within fourteen days of their commencement, or where the policy was cancelled in the prescribed manner.

Court orders

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  1. 1.The Plaintiff's Notice of Motion application dated 3rd November 2017 and filed on 10th November 2017 is dismissed
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act and Order 51 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re: Declaratory Suit – Stay of Proceedings in Milimani CMCC No 1349 of 2015 (Alice Kawira Wachira vs Andrew Kariuki & Ngure Isaac)", Case Analysis (2018). Not stated in the judgment (Plaintiff's Notice of Motion dated 3rd November 2017). Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.