Fidelis Mwanzia Musyoka v Kenya Orient Insurance Co. Ltd

Applicant’s Case 3. The Interested Party/Applicant herein contends that he is the Decree Holder in Kangundo civil suit No. 40 of 2013 (Bernard Musyoki Kavavu vs Fidelis Mwanzia Musyoka), while the Plaintiff/1st Respondent is the Judgement Debtor; 4. The Applicant being the Decree Holder in Kangundo civil suit No. 40 of 2013 (Bernard Musyoki Kavavu vs Fidelis Mwanzia Musyoka), has a direct interest in the instant suit herein; 5. On 21st February 2019, the honourable E. Agade, SRM (as she was then known) sitting at Kangundo Magistrate’s Court entered judgement for the Plaintiff (Applicant herein) against the Defendant (1st Respondent herein) for Kshs. 207,796/=plus costs and interests. 6. Shortly thereafter the Defendant (1st Respondent herein) was served with a copy of the Judgement and Decree. 7. No stay of execution was requested and/or granted by the court following the delivery of the said Judgement and Decree. 8. The Defendant (1st Respondent herein) ignored and/or declined to make good and or to settle the decretal amount together with costs and interests in KANGUNDO CIVIL SUIT NO. 40 OF 2013 (BERNARD MUSYOKI KAVAVU vs FIDELIS MWANZIA MUSYOKA). 9. From 21st February 2019, the date of the Judgement in the subject suit, the Defendant (1st Respondent herein) has never made any efforts and/or showed any willingness to settle the Decretal amount. 10. The Defendant (1st Respondent herein) disappeared and could not be traced despite efforts by the Applicant. 11. The Applicant herein, being the successful litigant in Kangundo civil suit No. 40 of 2013 (Bernard Musyoki Kavavu vs Fidelis Mwanzia Musyoka), has been unable to enjoy the fruits of his judgment. 12. The Applicant is apprehensive that if the orders prayed for are not granted, he is set to suffer irreparable loss and or harm as he might never be able to recover the decretal amount plus costs and interest in Kangundo civil suit No. 40 of 2013 (Bernard Musyoki Kavavu vs Fidelis Mwanzia Musyoka). 13. That it is in the interest of justice that the orders prayed for herein are granted. The Plaintiffi/1st Respondent’s case 14. The Plaintiff/1st Respondent opposes the application on the premise that it is frivolous, vexatious, is an abuse of court process, lacks merit and the same ought to be dismissed on the very outset. 15. The grounds set out in the application and the facts stated in the supporting affidavit of the Applicant herein do not warrant the grant of the orders sought in the application. 16. In the very first instance, the 1st Respondent is aware that the Interested Party/Applicant herein was a Plaintiff in Kangundo Civil Suit No. 40 of 2013- Bernard Musyoki Kavavu -vs- Fidelis Mwanzia Musyoka, and which matter was prosecuted and judgement entered in favour of the Applicant for an amount amounting to Kshs.438,741.38. Since this matter is a declaratory suit which has a direct implication on the primary suit in Kangundo, the Applicant therefore has an interest in this matter. As such, the 1st Respondent does not have an objection to him being made an Interested Party in these proceedings and suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14461/eng@2025-05-08 2

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17. The application is premised on the fact that since the date of the judgement, the 1st Respondent has never made any efforts and/or showed any willingness to settle the decretal amount and further that the 1st Respondent allegedly disappeared and could not be traced despite efforts by the Applicant an allegation which is outrageous. No evidence has been attached to the application to suggest that the 1st Respondent had disappeared and could not be traced at all. As a matter of fact, it is the 1st Respondent who instituted this suit and obtained orders staying the proceedings at the primary suit in Kangundo which orders were served upon the Applicant's previous counsel, the law firm of Priscillah Kioko & Associates Advocates. 18. The 1st Respondent confirms that he is the proprietor of the subject motor vehicle registration number KAG 952Y, a Nissan Saloon which was insured by the Defendant/ 2nd Respondent herein under policy number 101090443 and which motor vehicle was involved in road traffic accident which occurred on the 31st day of July 2010 along the Kangundo - Mwala Road where the Interested Party/ Applicant alleged to be a pedestrian, sustained injuries as a result. 19. The substratum of this matter is a declaratory suit, where the 1st Respondent is seeking for orders of a declaration that the Defendant/2nd Respondent be bound to settle the decretal sum in Kangundo Civil Suit No. 40 of 2013 together with costs and interest thereon amounting to Kshs.438,741.38/ =.Despite the Defendant/2nd Respondent herein being the insurer of the said motor vehicle, the Defendant/2nd Respondent has refused and/or neglected to settle this claim arising out of the use of motor vehicle registration number KAG 952 Y while in fact the said motor vehicle insurance policy was in effect at the time of the accident and has not been repudiated. 20. That pursuant to the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 of the Laws of Kenya, it is the Defendant's /2nd Respondent's sole duty to cover and settle all third-party claims and liabilities which arise from the use of the aforesaid motor vehicle registration number KAG 952 Y which is insured by them. 21. Since the 1st Respondent was fully insured by the Defendant/ 1st Respondent herein is therefore not in the place of the 1st Respondent to deposit the decretal amount in Kangundo Civil Suit No. 40 of 2013 in this Court or in a joint interest earning account held by his advocate and the advocate for Interested Party/ Applicant herein as contemplated by the Interested Party/ Applicant in the application dated the 31s day of May 2023. Rather, it is for the Defendant/2nd Respondent to settle all third-party claims arising out of the use of motor vehicle registration number KAG 952Y. 22. Upon filing this suit, the 1st Respondent did also file an application under certificate of urgency dated 18th May 2023 and upon the court hearing the parties herein, the previous judge handling the matter made the following orders;- 23. a. That, there be stay of proceedings in Kangundo Senior Resident Magistrates Court, Civil Suit No. 40 of 2013 (Benard Musyoka Kavuvu vs Fidelis Mwanzia Musyoka); b. That, pending the hearing and determination of this suit, this Honourable Court be pleased to issue an order of stay of execution of the decree dated the 19th day of June 2019 issued in Kangundo Senior Resident Magistrates Court, Civil Suit No. 40 of 2013 (Benard Musyoka Kavuvu vs Fidelis Mwanzia Musyoka). Consequently, an order of stay of proceedings in Kangundo Senior Resident Magistrates Court Civil Suit No. 40 of 2013, and an order of stay of execution of the decree dated the 19th day of June 2019 were issued in Kangundo Civil Suit No. 40 of 2013 2013 (Benard Musyoka Kavuvu vs Fidelis Mwanzia Musyoka. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14461/eng@2025-05-08 3

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24. It is therefore incorrect for the Interested Party/Applicant to assert that the 1st Respondent is unwilling to settle the decretal amount herein. This declaratory suit is a form of execution where the Defendant herein ought to be compelled to fully settle the decretal amount herein. This illustrates that the 1st Respondent is willing to have this matter concluded and closed since it is the sole responsibility of the Defendant to settle the decretal amount. 25. The 1st Respondent prays that the application dated the 31st day of May 2023 should be dismissed as the Interested party/ Applicant is attempting to bypass this Honourable Court's orders by insisting that the 1st Respondent should settle the decretal sum, despite the Court having already issued an order of stay of proceedings in Kangundo Senior Resident Magistrates Court Civil Suit No. 40 of 2013 and an order of stay of execution of the decree dated the 19th day of June 2019 were issued in Civil Suit No. 40 of 2013. 26. The Interested party/ Applicant has not obtained an order setting aside orders 3 and 4 of the aforementioned application dated the 18th May 2023 where this court granted the orders of stay of proceedings in Kangundo Senior Resident Magistrates Court Civil Suit No. 40 of 2013 and an order of stay of execution of the decree dated the 19th day of June 2019 were issued in Civil Suit No. 40 of 2013. As such, the Interested party/ Applicant cannot insist that the Plaintiff/ 1st Respondent settles the aforementioned decretal sum. 27. It is also important for this court to note that the Interested Party/ Applicant alleges the Defendant/ 1st Respondent disappeared and could not be traced despite their efforts to find them. However, this is inaccurate as the Defendant/ 2nd Respondent is a company with a registered physical address as required by law. As for the himself, a declaratory suit was instituted to compel the Defendant/ 2nd Respondent to settle the third-party claim. Consequently, it is quite far from the truth for the Interested party/ Applicant to assert that the Plaintiff/ 1st Respondent disappeared without a trace. 28. This is not an appeal where the 1st Respondent is required to deposit security to ensure prosecution of the appeal. This is a declaratory suit which has been instituted to compel the Defendant/ Respondent to settle the entire decretal amount herein for the benefit of the Interested Party. The Defendant/1st Respondent is the Party required to deposit the security should this Honourable court deem it necessary since it is its sole duty to settle the claim unless it can show this court that it is not legally mandated to do so. 29. The Interested Party/ Applicant will not suffer any irreparable loss and/or harm since a declaratory suit has been instituted to compel the Defendant/2nd Respondent to settle the decretal sum in primary suit together with costs and interest thereon all amounting to Kshs. 438,741.38/=. 30. The 1st Respondent prays that this court makes a finding that the application dated the 31st day of May 2023 is devoid of merit and proceed to dismiss the same with costs to the 1st Respondent. 31. The application was canvassed by way of written submissions. The Applicant/Interested Party and the 1st Respondent’s counsel filed and exchanged their respective submissions. 32. The Defendant/2nd Respondent on 19th November 2024 indicated that they did not wish to oppose the application or file submissions. Analysis and Determination 34. I have carefully considered the issues raised in this application, the response thereto and rival submissions filed by counsel for the Applicant and the 1st Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14461/eng@2025-05-08 4

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35. In this court’s own analysis, the issue for determination is whether the instant application is merited. It is not disputed that the Interested Party/Applicant herein is the Decree Holder in Kangundo civil suit No. 40 of 2013 (Bernard Musyoki Kavavu vs Fidelis Mwanzia Musyoka), while the Plaintiff/1st Respondent is the Judgement Debtor and the Defendant/2nd Respondent was the Insured of the Plaintiff/1st Respondent’s over motor vehicle registration number KAG 952Y which was involved in an accident with the Interested Party on 31st July 2010 as a result of which the Interested Party sustained personal injuries. 36. On 21st February 2019, the Learned Trial Magistrate sitting at Kangundo Magistrate’s Court entered judgement for the Plaintiff (Applicant herein) against the Defendant (1st Respondent herein) for Kshs. 207,796/= plus costs and interests. 37. The Interested Party/Applicant obtained warrants of attachment & sale of movable property in execution of the decree to attach and sale the Plaintiff's/1st Respondent’s property to realize a sum of Kshs, 438,741.78/=. Due to the fact that the Plaintiff/1st Respondent had an active policy with the Defendant/2nd Respondent at the time of the road traffic accident being insurance policy number 101090443, the Plaintiff/ 1st Respondent instituted this against the Defendant/2nd Respondent to settle the claim since it was mandatorily bound to settle the same pursuant to the provisions of Section10 (1) of the Insurance (Motor Vehicle Third Party Risks) Act. 38. Upon filing of this suit, the Plaintiff/1st Respondent herein had also filed an application dated the 18th May 2023 seeking that there be a stay of execution of the decree dated 19th June 2019 issued at the Kangundo Magistrates Court and upon hearing the parties, the court on the 7th day of February 2024, granted the stay of execution pending the hearing and determination of this suit. 39. I have looked at the proceedings herein and confirmed that in deed the 1st Respondent filed and application for filed an application dated the 18th May 2023 seeking that there be a stay of execution of the decree dated 19th June 2019 issued at the Kangundo Magistrates Court in Civil Suit No. 40 of 2013 pending hearing of this suit. 40. The Defendant/2nd Respondent failed to file a response to the instant application despite service as I have confirmed from the Affidavits of service filed on behalf of the Plaintiff/1st Respondent and on 7th February 2024, Hon. Francis Rayola, J allowed the application in term with prayers 3 and 4 of the application thus: -That, there be stay of proceedings in Kangundo Senior Resident Magistrates Court, Civil Suit No. 40 of 2013 (Benard Musyoka Kavuvu vs Fidelis Mwanzia Musyoka);That, pending the hearing and determination of this suit, this Honourable Court be pleased to issue an order of stay of execution of the decree dated the 19th day of June 2019 issued in Kangundo Senior Resident Magistrates Court, Civil Suit No. 40 of 2013 (Benard Musyoka Kavuvu vs Fidelis Mwanzia Musyoka). 41. When the above orders were issued, the Applicant/Interested Party herein was not yet a party to this suit although the same were served upon the Applicant's previous counsel, the law firm of Priscillah Kioko & Associates Advocates as confirmed to court by the Plaintiff/1st Respondent’s on 12th July 2023. 42. The Applicant/Interested Party has now filed the instant application first seeking to be enjoined as a party to the suit a prayer that is not opposed by the Plaintiff/ 1st Respondent and the Defendant/2nd Respondent. 43. Secondly, the Applicant/Interested Party seeks for orders that the Pending the hearing and determination of the instant suit herein, this Honourable Court be pleased to issue an order directing the Plaintiff/1st Respondent herein to deposit the decretal amount in Kangundo civil suit No. 40 of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14461/eng@2025-05-08 5

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2013 (Bernard Musyoki Kavavu vs Fidelis Mwanzia Musyoka) together with costs and interest thereon all amounting to Kshs. 438,741.38/= in this court or in a joint interest earning account held by the advocates for the Plaintiff and the Interested Party herein. 44. The substratum of this matter is a declaratory suit, where the 1st Respondent is seeking for orders of a declaration that the Defendant/2nd Respondent be bound to settle the decretal sum in Kangundo Civil Suit No. 40 of 2013 together with costs and interest thereon amounting to Kshs.438,741.38/ = and not an appeal where it is a mandatory requirement for an Appellant to deposit security to ensure prosecution of the appeal. This is a declaratory suit which has been instituted to compel the Defendant/ Respondent to settle the entire decretal amount herein for the benefit of the Interested party. 45. The law is clear that the provision of security for the due performance of the decree is a mandatory requirement in the granting of an order for a stay of execution. 46. The application for stay of execution has since been filed by the Plaintiff/ 1st Respondent and orders issued thereon by a competent court of equal jurisdiction and which orders have not yet been challenged to date either by the Defendant and/or the Interested party. The said orders are still in force. 47. In my opinion what the Applicant’s application is basically seeking is for this court to either hear an appeal by a Judge of equal status and or re-open the Plaintiff’s already determined application for stay of execution through this application. 48. On the foregoing analysis, it is my considered view that the Interested Party/Applicant upon being enjoined as a Party to this suit, ought to have either applied for setting aside, review or variation of the orders in place for stay of execution in Kangundo Senior Resident Magistrates Court, Civil Suit No. 40 of 2013 (Benard Musyoka Kavuvu vs Fidelis Mwanzia Musyoka) on account of the condition for security for costs. 49. The upshot is that I find no merit in the application dated 31st May 2023 which I hereby dismiss with no order as to costs. 50. I direct that the suit be set down for hearing and determination expeditiously and directions on the hearing of the main suit to be taken forthwith following this ruling. 51. Orders accordingly. RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 8TH MAY 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH MAY 2025 In the presence of : Mr. Mweni ..... for Applicant/Interested Party Mr. Muasya .... for 1st Respondent Mr. Kinyanjui hb for Mr. Mutegi ..... for 2nd Respondent Milly.............. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14461/eng@2025-05-08 6

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