Rotich v Madison General Insurance Ltd & 2 others (Civil Case E360 of 2025) [2026] KEMC 218 (KLR)

5. The costs of this application be provided for. 2. The Plaintifi’s application is premised on grounds that: The Plaintifi and the 1st Interested Party were involved in an accident whereby the 1st Interested Party filed SCC E025 of 2025: Moses Kebaso v Vincent Rotich in the Small Claims Court. At the time of the accident, the Plaintifi’s vehicle was comprehensively insured under policy No. MSA/701/202739/2021 by the Defendant. Immediately upon service of the pleadings in the small claims court, the Plaintifi forwarded to the Defendant to take up the matter and defend him under the doctrine of indemnity. The Defendant failed to take up the matter and fearing entry of default judgment against him he appointed his own advocates. After the suit was concluded the Defendant requested for documents to defend the Plaintifi in the small claims suit and was notified it had been concluded. The Defendant undertook to settle the decree and asked the Plaintifi to pay Kshs. 7,500.00 which he did. The Defendant did not even pay the decree as a result of which the 1st Interested Party took out warrants of attachment. On 11th September 2025, the 2nd Interested Party issued the Plaintifi with a proclamation notice threatening to sell his property. 3. The Defendant filed a replying afidavit sworn by Moses Barasa on 4th March 2026. The grounds raised are that the Defendant did not participate in the small claims proceedings and only became aware of it upon being served with the present application. The court cannot issue an injunction against a subsisting judgment. The Plaintifi and the Defendant entered into a third party only insurance policy which obligated the Plaintifi to notify the Defendant of any accident, loss or damage and to forward any summons within reasonable time. The Plaintifi did not report the accident or submit any claim form; or notify the Defendant of the small claims case. 4. The Interested Parties filed a replying afidavit sworn by Paul Murimi Kiongo. The grounds raised are that upon conclusion of the small claims case the court became functus oficio and the prayer for injunction against proclaiming is ridiculous. That a court’s judgment cannot be injuncted. The 1st Interested Party is not privy to the insurance contract between the Plaintifi and the Defendant. That the Plaintifi is bound to satisfy the small claims decree. 5. The application was canvassed by way of written submissions and at the time of writing this ruling, all the parties had filed their written submissions. Issues for Determination: 6. I have considered the Plaintifi’s application and the afidavit in support thereof, the Defendant’s replying afidavit, the Interested Parties’ replying afidavit, all the parties’ written submissions and cited authorities; and, the relevant law. 7. I find that the issues before court for determination are: a. whether the orders sought by the Plaintifi should issue. b. What orders ensue? Analysis and Determination: 8. The gist of the Plaintifi’s suit is that the Defendant, an insurance company, is obligated by law to settle the judgment entered against the Plaintifi, insured in favour of the 1st Interested Party and arising out of a road trafic accident. It is for this reason that the Plaintifi has sought stay of execution of the judgment obtained by the 1st Interested Party against him, pending the hearing and determination of his declaratory suit against the Defendant insurer. In other words, the Plaintifi seeks stay of execution of the decree in the primary suit. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/218/eng@2026-06-30 2

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9. It is a common ground that the 1st Interested Party holds a valid decree against the Plaintifi. In the instant suit, the Plaintifi seeks judgment that the Defendant be compelled to meet its obligations under the contract of insurance by satisfying the said decree and that in the meantime, the execution of the decree be stayed. The Defendant has admitted to the existence of an insurance contract between it and the Plaintifi but cites breach of conditions by the Plaintifi in that, it was never made aware of the accident or the primary suit. While the Defendant feigns ignorance of the primary suit, the Plaintifi has filed a letter duly received by the Defendant on 3rd April 2025 notifying it of the primary suit days after it was filed. Judgment in the primary suit was delivered on 20th May 2025. Additionally, the Defendant sent an email acknowledging receipt of the letter and requested the Plaintifi to pay an excess amounting to Kshs. 7,500.00 for it to acknowledge liability. The Plaintifi has also exhibited evidence of payment of the excess. 10. The Plaintifi’s cause of action is anchored on the provisions of Section 10(1) of the Insurance (Motor Vehicles Third Party Risks) Act which provides as follows: “ 10. Duty of insurer to satisfy judgments against persons insured If, after a policy of insurance has been efiected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of Section 5 (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then notwithstanding that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments.” 11. I note that in his application, the Plaintifi did not rely on the provisions of the insurance (Motor Vehicles Third Party Risks) Act. However, I am minded by the provisions of Order 51 rule 9 of the Civil Procedure Rules that no application shall be refused merely by reason of a failure to state the law by virtue of which it made. 12. Since there is already an admission by the Defendant that it had insured the Plaintifi, from a reading of the above provisions, it appears that the Plaintifi has a genuine cause for complaint, as the provision gives him a definite cause of action against the insurer. I am therefore persuaded that the Plaintifi has demonstrated, on a prima facie basis, that there exists a right which may have been infringed by the Defendant as to call for a rebuttal from the Defendant. 13. Undoubtedly, the orders sought herein if granted will afiect the 1st Interested Party. It is unfortunate that the 1st Interested Party, a holder of a lawful judgment finds himself caught up in the tussle between the Plaintifi and the Defendant yet he is not even privy to the insurance contract between the two. 14. The above notwithstanding, the Plaintifi has demonstrated that his property is at risk of being sold in execution of the decree in the primary suit and yet there are issues touching directly on the obligation to settle the primary decree pending determination between it and its insurer. I am further persuaded that unless a measure of protection is given, the Plaintifi stands to sufier irreparably should his property be https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/218/eng@2026-06-30 3

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sold in execution. In Apollo Ogunda v Africa Merchant Assurance Co. Ltd & 4 others [2015] KEHC 71 (KLR) on a similar issue the High Court found that: The tragedy and prejudice is that, were this suit against the Respondents to succeed, and were this Court to find that the Respondent has no basis for repudiating the contract, then I don't think the applicant would even have a way of recovering the property which will already have been sold to satisfy the judgement on CMCC No. 666 of 2011. The issues as to whether section 5 and 10 of the Insurance Third Party Risks Act applies or not, are best canvassed at the substantive hearing of the suit. I agree with the applicant's Counsel that this application should not be confused with applications made under Order 42 Rule 6 - It is not an application for stay pending appeal- but that execution be stayed pending sorting out the issue regarding who between the applicant and Respondent should satisfy the judgement entered in the lower Court, taking into account the relationship that existed between the parties at the time of the accident. With greatest respect to the Interested Party's Counsel, this is not an application which is ill conceived as the suit raises factual and legal issues which must be addressed satisfactorily. They could not have been addressed during the trial before the Magistrate's Court because at that point, the Respondent had not indicated that it would no longer honour the contract it entered with the applicant, and that he was on his own. I hold and find that there is merit in granting stay of execution in Nakuru CMCC No. 666 of 2011, and staying the proceedings in Nakuru CMCC No. 254, 528 and 1186 all of 2011 until the suit filed in this High Court is heard and determined. 15. Having regard to the above analysis and guided by the cited provisions of the law and the binding authorities cited, a stay of execution of the decree in Narok SCCC No. E025 of 2025 is hereby granted pending hearing and determination of this suit. Costs to be in the cause. Case to be heard on priority basis. 16. It is so ordered. READ, SIGNED AND DELIVERED IN VIRTUAL COURT AT NAROK THIS 30TH DAY OF JUNE, 2026. E. M. MUTUKU RESIDENT MAGISTRATE In the presence of: Mr. Muimi for the Plaintifi. Ms. Amera for the Defendant Mr. Geno for the Interested Parties C/A: Lewis https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/218/eng@2026-06-30 4

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