Britam General Insurance Company Limited v John Mbugua Ng’ang’a

5. Rom the material presented by the parties, it is not in dispute that on 03rd November 2024, the said vehicle was involved in a road traffic accident along the Keroka–Sotik road at Kijauri area, resulting in multiple fatalities and injuries. Consequently, the Respondent, as the vehicle’s registered owner, has been sued in Keroka PMCC Nos. E003, E004, E015, E016 and E081 (all of 2025) and Keroka PMCC No. E244 of 2024, by victims and/or their personal representatives seeking compensation. 6. The Plaintiff/Applicant avers that subsequent investigations revealed that the Respondent misrepresented or concealed material facts at the inception of the policy, contrary to the principle of utmost good faith, thereby vitiating the contract of insurance. Following this discovery, the Applicant issued a declinature letter dated 28th March 2025, disclaiming liability and invoking its statutory right under Section 10(4) of the Insurance (Motor Vehicles Third Party Risks) Act to seek declaratory relief. Applicant’s Case 7. The Plaintiff/Applicant contends that unless the subordinate court proceedings are stayed, the Keroka suits may culminate in judgments against the Respondent which the successful plaintiffs may subsequently seek to enforce against it. It is argued that such an outcome would render the present declaratory suit nugatory and expose the Applicant to potential prejudice. 8. Reliance is placed on Britam General Insurance Co. (Kenya) Ltd v Musila; Muli & Others (Interested Party), Civil Suit 19 of 2017 [2022] KEHC 12036 (KLR), Monarch Insurance Co. Ltd v Wycliffe Onyango Odenda [2016] eKLR, and Gateway Insurance Co. Ltd v Kaboykek Farmers Co-operative Society Ltd [2014] eKLR, where the courts upheld insurers’ rights to seek declarations avoiding liability where the insured procured a policy through misrepresentation or used the insured vehicle contrary to policy terms. 9. The Plaintiff/Applicant maintains that the issue of policy validity must be resolved before the subordinate courts proceed, to avert conflicting decisions and preserve the integrity of judicial process. Respondent’s Case 10. The Respondent, John Mbugua Ng’ang’a, opposes the motion as premature, speculative and misconceived, contending that the Keroka cases are not against Britam but against himself as the insured. Respondent argues that no claim has been brought against Britam and that the declaratory suit and the primary proceedings concern different matters: the former deals with the validity of the insurance contract, while the latter relates to liability in tort. 11. Respondent additionally submits that under Section 10(1) of Cap 405, an insurer’s duty to satisfy a judgment arises only upon entry of judgment against the insured, and that the declaratory cause can proceed independently without halting the victims’ claims. 12. Relaince was placed on APA Insurance Co. Ltd v George Mugo & Another [2012] eKLR, Kenya Wildlife Service v James Mutembei [2019] eKLR, and Saham Assurance Co. Ltd v Lameck Okari Mairura [2021] KEHC 164 (KLR) in support of the proposition that stay of proceedings should be granted sparingly, and that justice to accident victims requires expeditious disposal of their suits. Issue for Determination 13. I have considered the application in light of the affidavits on record and submissions by both parties. The sole issue for determination is whether the Plaintiff/Applicant has shown sufficient cause to justify an order for stay of proceedings in the Keroka suits pending the determination of this declaratory suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18386/eng@2025-11-06 2

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Analysis and Determination 5. The principles guiding the grant of a stay of proceedings are well settled. As was stated in Global Tours & Travels Ltd; Nairobi HC Winding Up Cause No. 43 of 2000, the question is whether it is in the interest of justice to order a stay, which involves a careful balancing of the competing rights of the parties. The Court must consider the need for expeditious disposal of cases, the potential prejudice to each side, and whether continuation of the proceedings before the subordinate court would render this declaratory suit nugatory. 6. It is to be remembered that a stay of proceedings, being a grave and discretionary remedy, must only be issued sparingly and in the clearest of cases. The burden always rests upon the Applicant to demonstrate that exceptional circumstances exist to justify interference with the ordinary course of litigation. 5. The decision in Kenya Wildlife Service v James Mutembei [2019] eKLR is instructive that a stay of proceedings is a grave measure that must not be deployed as a tactic to delay litigation. It should be reserved for cases where continuation would render the intended appeal or declaratory process nugatory. The ruling challenged herein arises from a contempt application, which is interlocutory and distinct from the main suit. The Applicant remains at liberty to prosecute its declaratory suit and, if necessary, appeal any adverse finding arising therefrom. 5. Similarly, in MRM alias RLM v SMRM (Civil Appeal No. 124 of 2022) [2024] KEHC 446 (KLR), the Court held that a stay should only issue where a jurisdictional issue arises or where there is a risk of prejudice that cannot be remedied by the ordinary appellate process. No such jurisdictional defect or irreparable prejudice has been demonstrated in this instance. 5. In Richard Nchapi Leiyagu v IEBC & 2 Others [2013] eKLR, the Court of Appeal emphasized the right to be heard as a cornerstone of the rule of law. Any stay of proceedings must therefore be carefully scrutinized to ensure it does not unjustifiably infringe upon a party’s right to a fair and expeditious hearing. 5. Collectively, these authorities demonstrate that the mere existence of a declaratory suit is not sufficient basis for stay of proceedings. It must be shown that continuation of the subordinate court matters would render the declaratory suit nugatory or cause substantial prejudice beyond the normal inconvenience of litigation. 5. In the present case, the Plaintiff/Applicant has not shown how the mere continuation of proceedings before the subordinate court would occasion irreparable harm or procedural injustice. No specific prejudice has been identified that would outweigh the public interest in the expeditious resolution of disputes before the trial court. Disposition 5. For the foregoing reasons, the Court finds that the Notice of Motion dated 08th April 2025 lacks merit and is hereby dismissed with costs to the Respondent. 5. For avoidance of doubt, this suit and the proceedings in Keroka PMCC Nos. E003, E004, E015, E016, and E081 (all of 2025) and PMCC No. E244 of 2024 shall proceed in the ordinary course of hearing and determination. DELIVERED AT NYAMIRA THIS 06TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18386/eng@2025-11-06 3

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Appearances Court Assistant - Hilda For Plaintiff/Applicant - Mr. Wafula for Kimondo Gachoka & Co. Advocates For Respondent - Mr. Mwanza for Beyo & Co. Advocates https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18386/eng@2025-11-06 4

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