Zipporah Nduku Mutuku v Trident Insurance Company Limited

2. The application is based on the grounds of the face thereof and supported by the supporting affidavit and further affidavit of the applicant/Plaintiff. 3. The application is opposed by the Third Parties/Respondents vide the Replying Affidavit sworn on 27th September 2024 by the 1st Third Party and requests this honourable court to dismiss the application with costs to the Third Parties/Respondents. 4. The Defendant applicant has not entered appearance or filed a response to the applicationdespite service as per the affidavit of service by Kyenza Munyoki sworn on 1st August 2024. Factual Background 5. That, the Plaintiff/Applicant took out a motor vehicle insurance cover with the Defendant pursuant to the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 of the Laws of Kenya and the Defendant was therefore bound to settle all Third Party claims arising from the use of a motor vehicle registration number KCZ 562 X. 6. That, the subject motor vehicle registration number KCZ 562 X was involved in a road traffic accident on the 23rd day of February 2023 and thereafter three claims were filed by the Third Parties/ Respondents herein being Machakos Small Claims Court SCCC Nos.E292 of 2023, E290 of 2023 & E291 of 2023 seeking damages from the injuries sustained as a result of the said road traffic accident. 7. That, the matters proceeded for hearing and judgements were delivered on the 4th day of December 2023 in favour the Third Parties herein for a total and combined sum of Kshs.365,131.35/=. 8. That, the Defendant has failed to satisfy the judgement sum and this has necessitated the Third Parties in the said claims to apply for warrants of attachment and sale where they have already proclaimed some of the Applicant’s items. Further, to the foregoing, the Third Parties have also taken out Notice to Show Cause why execution should not issue against the Applicant in the above referenced three claims. 9. That the Applicant has already settled the premiums to the further settled the Insurance Excess as advised by the Defendant for purposes of the Defendant herein to take over the matter and settle the judgement sum but to which despite having settled the same, the defendant has failed and/or neglected and/or ignored and/or abandoned to settle the same leaving the Applicant exposed to execution by the Third Parties in the Small Claims Court matters. 10. That, as a matter of fact the Third Parties have already taken out Notice to Show Causes in the aforesaid matters and if the orders sought are not issued, the Plaintiff/Applicant shall be subjected to the execution proceedings with a possibility of her committal to civil jail by the Small Claims Court. 11. The defendant did not at all participate at the hearing of the Motion. Needless to say, both the Plaintiff/ Applicant and the Third Parties/Respondents filed written submissions on the Motion, pursuant to the directions given by this court on 1st October 2024. Analysis and Determination 12. I have considered the application, the supporting affidavit, the replying affidavit, further affidavit and the rival submissions filed by Parties’ counsel as well as the judicial decisions relied upon. In my view, the only issue for determination is whether stay execution can be granted as sought or better still, whether the court can issue an order staying the judgments and decrees in Machakos Small Claims Court in SCCC No. E292 of 2023, E290 of 2023 and E291of 2023 pending the hearing and determination of the present suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14734/eng@2025-02-06 2

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13. In the instant suit, it is not in dispute that the Plaintiff/Applicant is the Judgment Debtor in Machakos Small Claims Court in SCCC No. E292 of 2023, E290 of 2023 and E291of 2023 (the primary suits) whereas the Third Partis/Respondents are the Decree Holders. It then follows that there are valid judgments in favour of the Respondents that the Applicant is legally liable to settle. 14. I observed that the instant Motion has been brought under the provisions of Article 50 (`1) of the onstitution of Kenya (on Fair hearing), Section 3A of the Civil Procedure Act (on the inherent powers of the court), Order 10, Rule 11 (on setting aside or variation of judgment/order) and Order 51 Rule 1 of the Civil Procedure, Rule 1 of the Civil Procedure Rules ( concerning filing of applications by way of a Notice of Motion where there is no provision for how a party ought to approach the court). 15. Be that as it may, I am of the view that the mere failure on the part of the Applicant in coming under the correct provisions would not render her application fatally defective and merely constitutes a procedural defect. In the interest of substantive justice, I will consider the merits of the Motion. 16. The Applicant has admitted that the Respondents have already commenced the process of execution by taking out Notice to Show Cause against her and which is a lawful process. The Applicant has also expressly stated that she does not wish to appeal against those judgments but intends to pursue the application for grant of stay of execution of the judgments pending the determination of the declaratory suit herein. In that connection, the provisions of Order 42 Rule 6 of the Civil Procedure rules which apply to an application for stay of execution of a decree subject of an appeal is inapplicable in relation to those judgments. 17. It is apparent that the order sought is that of a stay of execution pending determination of this suit and hence the correct provision would be Order 22, Rule 25 of the Civil Procedure Rules, which supports the averments made by the Third Parties/Respondents. The provision states as follows: “ Where a suit is pending in any court against the holder of a decree of such court in the name of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.” 18. From the foregoing provision, a court may on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided. 19. The Applicant has submitted that she is a Public Servant being a teacher at Kitondo School, a public school within Makueni County and that there is a clear possibility of her being committed to civil jail for failure to settle the decretal sums and the fact that she will be committed to civil jail shall in turn amount to her absconding her duties as a teacher in public school wherefore she will suffer substantial loss if the stay sought is not granted. 20. The Applicant has also submitted that she is willing to provide a bank guarantee to the Third Parties within a period of thirty (30) days from the date of the ruling as security for due performance of the decrees. 21. I noted that the Applicant has not supported by evidence her assertions of being a public teacher at the stated school as alleged and her ability to secure a Bank Guarantee as security for due performance of the decrees remains mere speculations and this court thus finds it difficult to believe her. The Applicant being likely to be committed to civil jail and therefore abscond duty is not in itself a basis of granting the orders of stay as sought. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14734/eng@2025-02-06 3

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22. I take the view that whereas an insured may well be entitled to seek a declaration that its insurer is entitled to settle the claims covered under the Insurance Policy, that statutory right of action does not bar a person who is injured from executing the decree issued in his favour against the insured directly. Therefore, the Respondents in this case is not barred by the declaratory suit from executing against the Applicant directly as they had opted to do. 23. As already stated, the law is clear under Oder 22 Rule 25 of the CPR that the court may stay execution on such terms as to security for the due performance of the decree. The applicant has not given any satisfactory security for performance of the decrees in her application, however, in the interest of administration of substantive justice and taking into consideration the circumstances of this case and the fact that the Applicant’s suit raises triable issues with probability of success pursuant to Section 10 of the Insurance (Motor Vehicle Third Party Risks) Act, Cap 405 of the Laws of Kenya, I see no reason to disallow her application. 24. In the end therefore, the Motion dated 23rd July, 2024 is hereby allowed, giving rise to the following orders: 25. a. There shall be a stay of execution of the judgment delivered on 4th December 2023 in Machakos Small Claims Court in SCCC No. E292 of 2023, E290 of 2023 and E291of 2023 on the condition that the Plaintiff/Applicant provides a Bank Guarantee of Kshs.500,000.00 from a reputable commercial Bank situated in the Republic of Kenya within Thirty (30) days from the date of the ruling hereof or in the alternative, the Plaintiff/Applicant deposits the entire decretal sum in court or in a joint interest earning account to be held in the joint names of the Parties’ advocates/firm of advocates within 60 days from today, failing which the order for stay shall automatically lapse and execution will proceed. b. Upon considering the nature of the present suit, I hereby order that the same be expedited and that the parties take dates before the Deputy Registrar on priority basis. c. Costs of the application to abide the outcome of the suit. It is so ordered. RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 6TH FEBRUARY 2025. NOEL I. ADAGI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14734/eng@2025-02-06 4

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