Jubilee Insurance Company Limited v Silvernous K Njenga

and a pedestrian. The accident allegedly occurred on 29th January 2024 along the Mombasa-Nairobi highway at Katsimbalwena area. 5. It is the plaintiff/applicant’s case that the defendant never notified it of the occurrence of the said accident within seven days of its occurrence as provided for under Condition 9(4)(a) of the Insurance Policy schedule or at all. That he also failed to report the said accident to the police as provided for under Condition 9(4)(b) of the Insurance Policy schedule. 6. The plaintiff has therefore filed a disclaimer suit against the defendant seeking a declaration that it is not bound to pay and/or satisfy any judgments or liabilities arising from any potential suits and/or indemnify the defendant against any claim in respect of any bodily injuries and/or material damage/ losses incurred as a consequence of the said accident. 7. Alongside the plaint, the plaintiff filed the present application. 8. In a response through a replying affidavit sworn by the defendant Silvernous K. Njenga sworn on 25th September 2024. He deposes that the applicant has not furnished a copy of the policy of insurance number P/101/1001/2023/001276, the basis of the contract of insurance between it and himself and also to ascertain the terms, warranties or conditions that he has allegedly breached. 9. He deposes further that he was in correspondence with the insurer’s agents M/S Co-operative Insurance Brokers specifically one Ms Daisy through WhatsApp. No. 0791508867 and duly forwarded to them all correspondence in the matter for transmission to the insurer. Neither the agents nor the insurer reverted to him for the alleged breach of the conditions or warranty. 10. He was surprised to be served with a notice of formal proof in the primary suit coming up on 19th August 2024 and that was when he realized that no defence had been filed in the case. At the same time he recived an order of this court staying the proceedings in the primary suit. He sought clarification from the insurer and he was informed that there was a communication breakdown between them and their insurance agent in the processing of the claim. He thus had to appoint an advocate. 11. The defendant deposes that since the orders herein will adversely affect the plaintiffs in the primary suit, it is imperative that they be made parties to the suit herein for purposes of conclusively determining the issues in the suit. 12. On 11th October 2024, the plaintiffs in the primary suit were granted leave to be joined to the suit herein as Interested Parties. Subsequently, Ruwa Mwamvula Ruwa filed a replying affidavit sworn on 22nd October 2024. He opposed the application by the plaintiff for stay of proceedings contending that the suit herein is different from the primary suit, each being founded on a different cause of action and seeking distinct reliefs. 13. He deposed further that since no judgment had yet been obtained in the primary suit, there was no execution process that could take place against it and therefore the suit herein is premature. For that reason, the insurer/plaintiff has no reason to interfere with the primary suit by way of stay of proceedings. Otherwise, such an order will be highly prejudicial to the IP. 14. The application was disposed of by way of written submissions of the parties. 15. The applicant argued the application on the basis that it had satisfied the conditions for grant of an order of stay of proceedings as set out in various judicial authorities. He set out the principles as enunciated in the case of Global Tours & Travels Limited, Nairobi High Court Winding Up Cause No. 43 of 2000 (UR) as cited in numerous authorities as: a) Whether the applicant has established that he/she has a prima fade arguable case. b) Whether the application was filed expeditiously b) Whether https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4519/eng@2026-02-12 2

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the applicant has established sufficient cause to the satisfaction of the court that it is in the Interest of justice to grant the orders sought. The applicant submits that it has satisfied all the conditions. 16. The respondent on his part submits that the applicant has failed to satisfy the conditions for bringing a disclaimer suit for reasons that the conditions as enunciated in the case of Britam Insurance Co Ltd v Jane Muthoni Mwangi; Kevin Ouma Ochieng & 3 others (Interested Parties) [2021] KEHC 2131 (KLR) have not been satisfied. In that case, the High Court stated that these conditions are derived from Section 10(4) of the Insurance (Motor Vehicle Third Party Risks) Act which provides that: “ No sum shall be payable by an insurer under the foregoing provisions of this section if in an action commenced before, or within three months after, the commencement of the proceedings in which the judgment was given, he has obtained a declaration that, apart from any provision contained in the policy he is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact, or by a representation of fact which was false in some material particular, or, if he has avoided the policy on that ground, that he was entitled so to do apart from any provision contained in it: Provided that an insurer who has obtained such a declaration as aforesaid in an action shall not thereby become entitled to the benefit of this subsection as respects any judgment obtained in proceedings commenced before the commencement of that action, unless before or within fourteen days after the commencement of that action he has given notice thereof to the person who is the plaintiff in the said proceedings specifying the non-disclosure or false representation on which he proposes to rely, and any person to whom notice of such action is so given shall be entitled, if he thinks fit, to be made a party thereto.” 17. The High Court stated that arising from this section the three pertinent requirements of a disclaimer suit: i) that the suit should be filed before or within three months of the filing of the suit by the third parties; ii) notice with details of grounds of disclaimer is given before or within 14 days of the commencement of the disclaimer suit to the plaintiff in the primary suit; and iii) the person to whom notice of action is so given shall be entitled to be made a party thereto. 18. Although the point raised is a good one to consider whether the applicant has an arguable case, it is apparent from the foregoing exposition of the law that considering these issues will inevitably lead to delving into the main suit, yet the defendant complains that at the time he was served with the present application he had not even been served with summons to enter appearance, the plaint and accompanying documents. I will therefore leave the issues for consideration in the main suit. 19. The respondent further submits that the application does not explain the basis upon which the disclaimer suit was filed, that is the terms and conditions alleged breached, yet at the same time the applicant has not served him with the pleadings in the suit. He therefore submits that the applicant is acting mala fides through concealment of material facts to the suit. To that end, he has cited the case of Britam Insurance Company Limited v Njoki & another [2024] KEHC 14197 (KLR) to support the submission that the application does not meet the threshold for grant of an order of stay of proceedings. 20. The third parties on their part submit that no basis has been laid for stay of proceedings in the primary suit. They rely on the case of Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] KEHC 3174 (KLR) 21. They also submit that issuance of such orders against them will be prejudicial to them as their case is against the respondent and not the plaintiff who has a separate cause of action against the respondent and whatever the outcome of that cares, theirs is to proceed against the respondent who has an https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4519/eng@2026-02-12 3

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obligation to settle the interested party's judgement, if they are successful against him notwithstanding the fact that the motor vehicle was insured or not. 22. I have considered the application herein, the responses thereto and the submissions by the parties. The issue for determination is whether the applicant herein has offered sufficient reasons to warrant this court to exercise its discretion to stay the proceedings in the primary suit before the trial court. 23. The requirements for stay of proceedings are different from those of stay of execution. There is guidance on this difference in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) where, while considering a similar application the High Court stated as follows: “ Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent. See Ringera J in the case of Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus; “As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously” (emphasis added) See also illumination on the threshold for stay of proceedings in the following passages in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that: “ The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.” “This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.” “It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4519/eng@2026-02-12 4

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24. As was observed by the High Court considering a similar issue in the case of Britam Insurance Co Ltd v Jane Muthoni Mwangi; Kevin Ouma Ochieng & 3 others (Interested Parties) [2021] KEHC 2131 (KLR), the plaintiff/applicant’s main reasons for seeking stay of proceedings in the primary suit is that the respondent/defendant/insured breached fundamental warranties, terms and conditions of Insurance Policy thus entitling the plaintiff/applicant to avoid the obligations under policy .That further on determination of the primary suit the plaintiff /applicant will be held liable to settle the claims under the provisions of the Insurance (Motor Vehicle Third Party Risks)Act (Cap 415) Laws of Kenya, despite having filed this suit seeking declaration that it is entitled to avoid the policy. Are these good reasons to have this court exercise its discretion to grant an order of stay of proceedings? 25. It is patently clear that the applicant’s application herein is based on speculation. Speculation because there is a suit yet to be determined and so it envisages a situation whereby if it is determined against its insured, it will be called upon to settle the ensuing judgment. Although it has filed a declaratory suit against the respondent herein, yet it does not want to take chances with the result in the primary suit in the event that it is concluded ahead of the suit herein. It is therefore taking protective measures against an unpredictable outcome. But in doing so, it will clearly impede the plaintiff in the primary suit from pursuing its claim for no good reason. As deposed and submitted by the plaintiffs in the primary suit, their cause is against the respondent herein. How he settles any decree arising from the primary suit, if at all one will judgment will be in their favour, is not their concern. Of course it will be much easier and faster if the insurer can settle, but assuming that for whatever reason the insurer is not paying, then staying the proceedings in the primary suit will not have served any useful purpose but to delay the primary suit to the detriment of the plaintiffs. 26. I therefore find that no useful purpose will be served by staying proceedings in the primary suit yet the issues raised therein have no bearing on the merits of the applicant’s case against the respondent herein and where the hearing of the declaratory suit herein and the result thereof will not affect the merits of the primary suit one way or the other. 27. Consequently, this court finds that the applicant’s notice of motion dated 3rd August 2024 has no merit and the same is dismissed. The proceedings before the Mariakani Magistrate’s Court in MCCC No. E067 of 2024, Ruwa Mwamvula Ruwa & Another v Silvernous K. Njenga shall proceed as will be scheduled by the trial court. 28. The applicant shall bear the costs of the application for both the respondent and the interested party 29. Orders accordingly. 30. Mention on 29th April 2026 for directions on the main suit. DELIVERED, DATED AND SIGNED ON THE VIRTUAL PLATFORM, MICROSOFT TEAMS THIS 12TH DAY OF FEBRUARY 2026. ANDAYI W. F. JUDGE The judgment is uploaded on the CTS platform for access by the parties with Mr. Gichana for the Respondent having attended court earlier today. ANDAYI W. F. JUDGE SIGNED BY/FOR: HON. JUSTICE ANDAYI W.F. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4519/eng@2026-02-12 5

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# TH E JUDICIAR Y O F KENY A # HON. JUSTICE ANDAYI W.F. Kwale High Court https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4519/eng@2026-02-12 6

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