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MagistrateDismissedChuka CMCC No. E072 of 2022 (Application dated 6th May 2024)· [2026] KEMC 511 (KLR)

Mutua v Invesco Insurance Company Limited; Gitonga (Interested Party) (Civil Case E059 of 2024) [2026] KEMC 511 (KLR)

Magistrates' Court
11 June 2024
TWTracy Wachira
1,330 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an insurance policy cannot stop an accident victim from seizing the insured driver's property to recover a court award.

What this practically means

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Executive summary

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The Applicant, registered owner of motor vehicle KCL 515U insured by the Respondent/Defendant insurer, applied by notice of motion dated 6th May 2024 in Chuka CMCC No. E072 of 2022 for an injunction and stay of execution. Her vehicle had been involved in a fatal road traffic accident on 31st August 2021, and the interested party, as legal representative of the deceased's estate, obtained a decree of Kshs. 2,421,925 (including interest). She argued the insurer ought to satisfy the decree under the policy and relied on Order 40 of the Civil Procedure Rules and the Giella v Casman Brown criteria. The Respondent did not respond. The interested party opposed, contending the application came ten months after judgment, that no substantial loss was demonstrated, and that stay criteria under Order 42 were unmet; execution should proceed against the insured directly. The court noted the application, seeking to set aside orders in a separate file, should have been filed in the primary suit file. It held the interested party was not privy to the insurance policy and was a legitimate decree holder; the applicant failed to demonstrate irreparable loss. Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act mandates insurers to satisfy judgments but does not provide for stay of execution, and the insured's statutory right to seek a declaration against the insurer does not bar direct execution against the insured. The application was dismissed with costs to the interested party.

Key legal issues

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01

Whether the interested party is privy to the insurance policy between the Applicant and the Respondent

Holding

The interested party is not privy to the insurance agreement and is a legitimate holder of a decree, entitled to execute against the insured judgment debtor directly.

Reasoning

The court held the interested party, being a stranger to the insurance contract between applicant and insurer, holds a lawful decree against the applicant. Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act obliges the insurer to satisfy judgments but confers no stay of execution. The insured's remedy is a declaratory suit against the insurer, which cannot bar the decree holder from executing. The applicant also failed to demonstrate substantial loss under the stay criteria.

p. 3

Legal principles established

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  • A decree holder may pursue the decretal sum directly from the judgment debtor notwithstanding the existence of an insurance policy
  • Section 10(1) of the Insurance (Motor Vehicle Third Party Risks) Act does not provide for a stay of execution against the insured
  • The insured's statutory right to seek a declaration against its insurer does not bar execution of the decree against the insured directly

Court orders

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  1. 1.The Applicant's application dated 6th May 2024 for injunction and stay of execution is dismissed with costs to the interested party

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Civil Procedure RulesOrder 42
  • Insurance (Motor Vehicle Third Party Risks) Actsection 10(1)

Cases cited (8)

  • Giella vs Casman Brown
    [1973] EA 358
  • Charles Makenzi Wambua vs Africa Merchant Assurance Company Limited and Another
    [2014] eKLR
  • Jane Wanjiru Mwangi v Explico Insurance Company Limited: Duncan Odhiambo Owino (Interested Party/Respondent)
    [2021] eKLR
  • Peter Kilonzo Vs Monarch Insurance Company Limited: Kisakwa Ndolo (Sued as a legal representative of the estate of Mwania Kisakwa-Deceased (interested party))
    [2021] eKLR
  • Dollk Limited v Invesco Assurance Company Limited & 5 others
    [2018] eKLR
  • Muthuri Ntara & Another v Francis Mworia Igweta
    [2016] eKLR
  • Peter Kilonzo Kioko v Monarch Insurance Co. Ltd; Kisakwa Ndolo King`oku (Sued as Legal Representative of the Estate of Mwania Kisakwa - Deceased (Interested Party)
    [2021] eKLR
  • Njeru Patrick v Invesco Assurance Company Limited; Granton Ukonde Mulala (Interested Party)
    [2021] eKLR
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules (injunction) and Order 42 (stay of execution) - Civil Procedure Act; Insurance (Motor Vehicle Third Party Risks) Act section 10(1)

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, "Mutua v Invesco Insurance Company Limited; Gitonga (Interested Party) (Civil Case E059 of 2024) [2026] KEMC 511 (KLR)", Case Analysis (2024). Chuka CMCC No. E072 of 2022 (Application dated 6th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/511/eng@2026-06-11

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