Geoffrey Gichomo Mwangi v Xplico Insurance Company Ltd & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL SUIT NO. E124 OF 2021 GEOFFREY GICHOMO MWANGI..................................................................PLAINTIFF VERSUS XPLICO INSURANCE COMPANY LTD................................................1 ST DEFENDANT ROSELINE KAGENDO NJIRU.............................................................2 ND DEFENDANT RULING 1. The plaintiff/applicant herein took out the motion dated 27 th May 2021 whereof he sought for the following orders: i. THAT this application be certified urgent and heard ex-parte in the first instance. ii. THAT this honourable court be pleased to grant a temporary stay of execution exparte in the interim and/or stay of further execution against the judgment/decree in Milimani MCCC no. 4610 of 2019 and all consequential orders and/or proceedings arising therefrom pending the hearing and determination of this application interpartes. iii. THAT this honourable court be pleased to order that in the interim the motor vehicle registration number KBW 060D Isuzu Minibus be released to the applicant pending the hearing and determination of this application interpartes. iv. THAT this honourable court be pleased to grant a stay of execution and/or stay of further execution against the judgment/decree in Milimani MCCC No. 4610 of 2019 and all consequential orders and/or proceedings arising therefrom pending the hearing and determination of this suit. v. That the warrants of attachment and sale of moveable property issued to M/s Compliance Auctioneers in execution of a decree for money be set aside pending the hearing and determination of this suit. 2. The plaintiff filed a supporting and a further affidavit he swore in support of the motion. The 2nd defendant filed a replying affidavit she swore to oppose the application. 3. I have considered the grounds stated on the face of the motion and the facts deponed in the rival affidavits. It is the averment of the plaintiff that on 27th January 2021 judgment in the sum of ksh.715,290 was entered against him and in favour of the 2 nd defendant in Nairobi Commercial Courts C.M.C.C. no. 4610 of 2019. 4. It is further stated by the plaintiff that Compliance Auctioneers have attached the plaintiff’s motor vehicle registration no. KBW 060D in execution of the decree. The plaintiff avers that he took an insurance cover with the 1 st defendant to cover such risks but the 1 st defendant has failed to settle the decree forcing the 2nd defendant to execute the decree. 5. The plaintiff has urged this court to stay further execution of the decree and sale of his motor vehicle pending the hearing and determination of this suit. It is stated that the 1 st defendant has been sued to compel it settle the decree pursuant to the provision of Section 5(b) of the Insurance (Motor Vehicle Third Party Risks)Act. 6. The 2nd defendant has urged this court to dismiss the plaintiff’s application stating the she has a lawful judgment which the plaintiff has not challenged on appeal hence there are no good reasons to enable this court grant the order to stay. The 2nd defendant further argued that

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