Trident Insurance T/A Young Achievers School v Amos Njenga Gitau T/A Young Achievers School

RULING 1. What is before the court for determination is the Notice of Motion dated 21st September 2025, filed by the Defendant/Applicant, Amos Njenga Gitau t/a Young Achievers School ("the Applicant"), brought under Order 22 Rules 22 and 25, Order 40, Order 45, Order 51 Rules 1 and 2 of the Civil Procedure Rules, 2010, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Articles 25(c), 50(1) and 159(2) (d) of the Constitution of Kenya, 2010, and all other enabling provisions of the law. 2. The Applicant seeks, in substance, a stay of proceedings, execution of judgments, decrees, or warrants issued or in the process of being issued against him in Tawa SRMCC Nos. 40 of 2019, 67 of 2019, 147 of 2019, 196 of 2019, 197 of 2019, 198 of 2019, 199 of 2019, E009 of 2020, E044 of 2020, E088 of 2024, E089 of 2024, E176 of 2024, and any other related matter, pending the ,hearing and determination of this suit, together with costs in the cause. 3. The application is anchored on eleven (11) grounds: a. That the Defendant herein was the insured party under the subject insurance contract which the Plaintiff seeks to repudiate for breach of material terms. b. That the Defendant is currently a party to multiple suits (46) filed by various plaintiffs in the Magistrates’ Courts, all arising from the same road traffic accident and seeking compensation under the said insurance policy. c. That the Defendant has filed an application in this suit seeking to stay all the said primary suits pending the determination of this declaratory suit. d. That the Honourable Court, upon considering the nature of the application and the potential impact on the plaintiffs in the primary suits, directed that the said plaintiffs be enjoined as Interested Parties to safeguard their right to be heard and to avoid prejudice. e. That the plaintiffs in the primary suits have a direct and substantial interest in the outcome of this suit, as the determination of the insurance repudiation will affect their ability to enforce any judgment or claim against the Defendant. f. That the presence of the Interested Parties is necessary for the effectual and complete adjudication of all matters in dispute, and their participation will assist the Court in arriving at a just and binding determination. g. That no prejudice will be occasioned to any party by the enjoinment, and the application is made in good faith and in compliance with the directions of the Honourable Court. B. Background 4. The dispute traces its origin to a road traffic accident that occurred about 1st June 2018, involving motor vehicle registration KBY 892L, which was at the material time insured by the Plaintiff, Trident Insurance Company Limited, under Policy No. 030/080/1/024500/2018, in favour of the Applicant. 5. Following the accident, numerous suits ultimately numbering approximately forty-six (46), were instituted against the Applicant (and, in some instances, against Young Achievers School) at the Tawa Law Courts by various claimants seeking compensation for injuries or loss said to have arisen from the accident. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12381/eng@2026-07-30 2

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6. The court issued orders staying certain Tawa suits pending determination of this declaratory suit. It is common ground that those 2019 orders were confined to the specific matters then pending and did not extend to suits instituted subsequently. 7. By a Notice of Motion dated 1st September 2025, supported by the affidavit of James Onjoro, the Plaintiff applied to enjoin the various claimants in the Tawa suits as Interested Parties in this suit, which application appears to have been acted upon, resulting in the parties now on record as the 1st to 10th Interested Parties. 8. The Applicant thereafter filed the instant Notice of Motion dated 21st September 2025, seeking to extend the 2019 stay orders to cover twelve (12) additional suits instituted after 2019 ,namely Tawa SRMCC Nos. 40 of 2019, 67 of 2019, 147 of 2019, 196–199 of 2019, E009 of 2020, E044 of 2020, E088 and E089 of 2024, and E176 of 2024 ,on the footing that these all arise from the same accident, motor vehicle and insurance policy, and that their omission from the 2019 orders was inadvertent. C. The Applicant's Case 9. Learned counsel for the Applicant submits that this court is clothed with supervisory jurisdiction over subordinate courts under Article 165(6) and (7) of the Constitution, and with inherent power under Sections 1A, 1B and 3A of the Civil Procedure Act to make such orders as the ends of justice require, including a stay of proceedings or execution in subordinate court matters arising from a common cause of action. 10. It is submitted that every suit listed in the Notice of Motion arises from the same road traffic accident involving motor vehicle KBY 892L and is governed by the same insurance policy, and that it is a settled principle that multiple claims arising from a single incident ought to be treated consistently to avoid conflicting outcomes and judicial waste. 11. . Relying on Order 45(1)(b) of the Civil Procedure Rules, the Applicant contends that the twelve additional suits constitute new matter that could not have been included in the 2019 orders, and that the commencement of execution in Tawa SRMCC E009 of 2020 ,where a school bus, motor vehicle registration KCQ 759U, was attached and seized pursuant to warrants of attachment ,is itself sufficient reason to extend the stay. 12. The Applicant places reliance on Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986] KECA 94 (KLR) for the proposition that substantial loss is what the grant of a stay is meant to prevent by preserving the status quo; on Silverstein v Chesoni [2002] 1 KLR 867, to similar effect; and on Otieno, Ragot & Company Advocates v Kenindia Assurance Co Ltd, Civil Appeal No. 165 of 2019, [2023] KECA 1443 (KLR), for the broader proposition that conflicting outcomes across related matters call for harmonisation. 13. It is submitted that unless the orders sought are granted, the Applicant will be exposed to substantial and irreparable loss, including the risk of being made to satisfy decrees personally despite the existence of insurance cover, and that this would defeat the purpose of the declaratory suit and expose the Applicant to fragmented and inconsistent outcomes across the various Tawa suits. The Applicant urges that the failure to include the subsequent suits in the 2019 orders was inadvertent, not deliberate, and that the overriding objective under Sections 1A and 1B of the Civil Procedure Act favours extension of the stay to prevent multiplicity of proceedings and piecemeal execution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12381/eng@2026-07-30 3

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D. Submissions In Opposition i. The 3rd, 4th and 5th Interested Parties 14. The 3rd, 4th and 5th Interested Parties submit, first, that no orders ought to issue in the suit as presently constituted because the Plaintiff has since been placed under receivership; that the receiver must first obtain the court's leave to take over the suit; and that, should that occur, the plaint would require amendment so that the receiver sues on the Plaintiff's behalf. In the alternative, and without prejudice to that position, they associate themselves with the submissions of the other Interested Parties. 15. They further submit that the Applicant has advanced no lawful basis for the stay beyond the bare fact that stay orders were obtained in other matters, and that this, without more, does not warrant the grant of the orders sought. They point out, relying on the Case Tracking System annexure, that Tawa CMCC Nos. 196, 197, 198 and 199 of 2019 have been coming up for hearing for a period of some six to seven years, and contend that the delay in bringing the instant application is undue, such that the court ought not to extend its assistance to what they characterise as an indolent litigant. They urge that the interested parties' rights ought not to be held in further abeyance while the Plaintiff and the Applicant resolve their own dispute, and that, if need be, the Applicant and the Plaintiff can settle accounts between themselves without dragging the Interested Parties into that dispute. They pray that the application be struck out with costs. (ii) The 6th Interested Party 16. The 6th Interested Party opposes the application on grounds of opposition dated 1st October 2025, and submits that a judgment is akin to a debt which must be satisfied; that judgment has already been entered against the Applicant in the 6th Interested Party's favour (delivered on 11 July 2024, some one year and eight months prior to these submissions); and that the Applicant has offered no security for costs or for the decretal sum. 17. Relying on Captain Motorcycles Manufacturing Company Limited v Jane Muthoni Mberere & Another, HMSC Application No. 22 of 2020 (Njuguna J, 30th July 2020) ,itself applying Jason Ngumba Kugu & 2 Others v Intra Africa Assurance Company Limited [2014] eKLR and James Wangalwa & Another v Agnes Naliaka Cheseto, Bungoma HC Misc. Application No. 42 of 2011 ,the 6th Interested Party submits that substantial loss is the cornerstone of the jurisdiction to grant a stay, and that an applicant must establish specific factors showing that execution will irreparably affect or negate the very core of his position, not merely assert loss in general terms. 18. It is submitted that the Applicant has not demonstrated that the 6th Interested Party would be unable to refund the decretal sum should the present suit ultimately succeed, and that, to the contrary, the Applicant is a person of means who operates an educational institution, Young Achievers School ,and is accordingly well placed to satisfy the decree and thereafter seek indemnity from his insurer. The 6th Interested Party further contends that the Applicant has not shown that he was unaware of the suit or judgment against him, nor that he made any effort to notify his insurer or settle the claim, which, it is submitted, points to a deliberate attempt to derail execution and deny the 6th Interested Party the fruits of a lawfully obtained judgment. 19. The 6th Interested Party relies further on Jenipher Anyango Oloo v Buzeki Enterprises Limited & Another, HCCA No. 40 of 2019 (Siaya), Aburili J., for the holding that the existence of a declaratory suit against an insurer does not bar a decree holder from executing directly against the insured, and that the statutory right under the Insurance (Motor Vehicle Third Party Risks) Act to seek indemnity from an insurer does not extend to barring execution against the insured. Reliance is also placed on https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12381/eng@2026-07-30 4

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Kassam Hauliers Limited v Mezgebu Gatachew Mammo, HCCA No. E30 of 2021 (Voi), Chepkwony J, and again on James Wangalwa (supra), for the proposition that the commencement or completion of execution does not, without more, amount to substantial loss, since execution is itself a lawful process; an applicant must establish additional factors showing that the execution will irreparably affect the core of his position as a party with a stake in the outcome of the main suit. 20. On this basis, they submits that the Applicant has failed to meet the threshold for a stay of execution,namely, a demonstration of the substantial loss he stands to suffer, and proof that the Plaintiff would be unable to refund monies paid out should the suit ultimately succeed and prays that the application be dismissed with costs. E. Issues For Determination 21. Having considered the application, the affidavits and the rival written submissions, the court considers that the following issues arise for determination; (a) a) Whether the question of the Plaintiff's receivership is properly before the court in this application and, if so, what effect it has on the application; (b) Whether the Applicant has satisfied the threshold for grant of a stay of proceedings and execution in the twelve additional Tawa suits, in particular whether he has demonstrated substantial loss; (c) Whether the application has been brought without undue delay; and (d) What orders and directions ought to follow, including on costs. F. Analysis And Determination (a) Whether the question of the Plaintifi's receivership is properly before the court in this application and, if so, what efiect it has on the application; 22. The 3rd, 4th and 5th Interested Parties raise, by way of submissions rather than by way of a formal application, the question whether the Plaintiff's alleged receivership affects the competence of the suit as presently constituted, and whether any receiver requires the leave of this court to take carriage of the proceedings. This is a substantive matter going to the standing and competence of the suit itself, and it would not be prudent for the court to pronounce on it, still less to resolve it against a party who has not had the opportunity to respond to it by way of a properly moved application. The point is accordingly reserved. It does not, in the court's view, dispose of the interlocutory application now before it, and the parties are at liberty to raise it formally, by appropriate application, if they consider it merited. (b) Substantial loss 24. The grant of a stay of proceedings or execution, whether under Order 40, Order 45 or the court's inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act, has consistently been held by our courts to turn substantially on proof of substantial loss. As was stated in James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, “ … the mere fact that execution has been put in motion, or is likely to be put in motion, does not by itself amount to substantial loss; even completed execution does not, without more, meet the threshold, because execution is a lawful process. An applicant must point to some https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12381/eng@2026-07-30 5

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additional factor demonstrating that execution will irreparably affect or negate the very core of his position in the pending litigation.” 25. That approach has been applied consistently in this jurisdiction in matters materially similar to the present one. In Jenipher Anyango Oloo v Buzeki Enterprises Limited & Another (supra), the court held that the existence of a declaratory suit by an insured against its insurer does not bar a judgment creditor from executing a decree directly against the insured, since the statutory right under the Insurance (Motor Vehicle Third Party Risks) Act to seek a declaration that an insurer must settle a claim does not extend to barring execution by a genuine decree holder against the insured. In Kassam Hauliers Limited v Mezgebu Gatachew Mammo (supra), the same principle was applied to decline a stay sought by an insured pending a declaratory suit against its insurer, the court holding that the insured's statutory right of action against its insurer does not bar the decree holder from executing directly against the insured. 26. Measured against that standard, the court is not satisfied that the Applicant has discharged the burden resting on him. Beyond the general assertion that execution has commenced in Tawa SRMCC E009 of 2020, resulting in the attachment of a school bus, the Applicant has not demonstrated ,whether in the supporting material or in submissions ,that the Interested Parties, or any of them, would be unable to refund monies recovered through execution should the Plaintiff ultimately succeed in this suit. Nor has the Applicant shown that he lacks the means to satisfy the decrees in question and thereafter pursue indemnity from the Plaintiff insurer, should the declaratory suit fail. 27. The court is alive to the Applicant's concern that piecemeal execution across some forty-six related suits carries a real risk of inconsistency, and that consistency and judicial economy are legitimate values which the court must weigh. However, those values cannot by themselves substitute for the specific evidentiary threshold ,substantial loss demonstrated with reference to the particular claimant against whom execution is sought or apprehended ,that our courts have consistently required before a stay of execution will be granted. A generalised submission that all the suits arise from one accident, without more, does not meet that threshold in respect of each of the twelve suits for which an extension of stay is sought. (c) Delay 27. The court also takes into account the submission of the 3rd , 4th and 5th Interested Parties that several of the suits for which a stay is sought ,in particular Tawa CMCC Nos. 196 to 199 of 2019 ,have been pending for a period in the order of six to seven years, and that the 2019 stay orders, addressed to the matters then pending, were never extended at any point between 2019 and the filing of the instant application in September 2025. While the court accepts the Applicant's explanation that the omission of the subsequent suits from the 2019 orders may have been inadvertent, the extended lapse of time before any step was taken to remedy that omission is a factor properly weighed against the discretionary grant of the relief now sought, particularly where, as here, some of the Interested Parties hold judgments which they have to date, been unable to enforce. (d) Conclusion 28. On the foregoing, the court finds that the Applicant has not made out a case for the grant of a stay of proceedings and execution in respect of the twelve additional Tawa suits identified in the Notice of Motion dated 21st September 2025. The application does not, however, fail entirely without residual consequence: the court considers it appropriate, in the interests of the overriding objective under Sections 1A and 1B of the Civil Procedure Act, to direct that the substantive suit ,including the question of the Plaintiff's liability to indemnify the Applicant, which lies at the heart of the dispute ,be set https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12381/eng@2026-07-30 6

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down for expedited hearing, so that the underlying uncertainty which gives rise to these repeated interlocutory applications may be resolved without further delay. G. Orders 29. For the reasons set out above, the court makes the following orders: (i) The Notice of Motion dated 21st September 2025 is hereby dismissed, save as provided in order (iii) below. (ii) The stay orders issued in 2019 shall continue to apply strictly to the matters to which they were originally addressed and are not extended to Tawa SRMCC Nos. 40 of 2019, 67 of 2019, 147 of 2019, 196 of 2019, 197 of 2019, 198 of 2019, 199 of 2019, E009 of 2020, E044 of 2020, E088 of 2024, E089 of 2024 and E176 of 2024, or any other suit not the subject of those original orders. (iii) This matter shall be mentioned within thirty (30) days for pre-trial directions and the fixing of an expedited hearing date for the main suit, including the question of the Plaintiff's liability to indemnify the Applicant under Policy No. 030/080/1/024500/2018. (iv) The question concerning the effect of receivership of the Plaintiff ougt to be raised at the appropriate time (v) The costs of this application shall be borne by the Applicant, the costs as between the Plaintiff and the Applicant in respect of the main suit shall abide the outcome of the suit. It is so ordered. DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 30th DAY OF JULY2026. E.N. MAINA JUDGE In the presence of: Ms. Karanja for the for the Plaintiff/Respondent Ms. Kwamboka for the Defendant Miriam Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12381/eng@2026-07-30 7

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