1. The application before me is dated 4/3/2024 brought under section Section 1A, 1B, 3A of Civil Procedure Act, Cap 21 Laws of Kenya. Order 22 Rule 5, 34 Rule 3, 51 Rule 1 of the Civil Procedure Rules.
2. It seeks orders:
1) That the Honourable court be pleased to certify the application as urgent and service thereof be dispensed with in the first instance.
2) That the Honourable court be pleased to issue an order staying proceedings in Makindu MCCC No. E179 of 2024, Kelvin Muulu Nzuki versus Julius Stephen Kiarie and Osman Hassan pending the hearing and determination of the instant application.
3) That the Honourable court be pleased to issue an order staying proceedings in Makindu MCCC No. E179 of 2024, Kelvin Muulu Nzuki versus Julius Stephen Kiarie and Osman Hassan pending the hearing and determination of the suit.
4) That the costs of this application be provided for.
3. The application is based on the grounds on its face and in the supporting affidavit of Hellen Omiti sworn on 4/11/2024 inter alia that:
1) That the plaintiff was at all the relevant material times the insurer of motor vehicle registration number KDC 522F and the defendant was its insured.
2) That the defendant/respondent’s motor vehicle, registration number KDC 522F, was allegedly involved in a road traffic accident with a third-party vehicle, registration number KBY 99T, on 20TH August 2023 during which one Kelvin Muulu Nzuki, the plaintiff in Makindu MCCC No. E179 of 2024, Kelvin Muulu Nzuki versus Julius Stephen Kiarie and Osman Hassan was aboard as a passenger and sustained bodily injuries.
3) That the victim, has since filed a suit before the subordinate court Makindu MCCC No. E179 of 2024, Kelvin Muulu Nzuki versus Julius Stephen Kiarie and Osman Hassan a compensatory claim for damages arising from an accident that occurred on 20/8/2023 involving the defendant’s motor vehicle registration number KDC 522F and a third party vehicle, registration number KBY 996T.
4) That the said motor vehicle registration number KDC 522F is a subject matter of Policy Cover number C/2023/100/9001/48650, issued to the defendant/respondent herein by the plaintiff/applicant herein.
5) That a fundamental clause of the subject insurance Policy Cover stipulated that the plaintiff’s/applicant’s (the insurer) duty to indemnify the insured would only arise in the event of an accident caused or arising.
6) That the said motor vehicle registration number KDC 522F is the subject matter of policy cover number C/2023/100/9001/48650 issued to the defendant/respondent herein by the plaintiff/applicant herein.
7) That a fundamental clause of the subject insurance Policy Cover stipulated that the plaintiff’s/applicant’s (the insurer) duty to indemnify the insured would only arise in the event of an accident caused or arising from the use of the subject motor vehicle registration number KDC 522F subject to the terms and conditions and comprehensible exceptions of the policy.
8) That consequently, the insurance Policy Cover is subject to a clause that expressly excludes liability for any claims arising from the use of the insured vehicle for commercial purposes, including hire or reward, thereby absolving the plaintiff from any responsibility to indemnify the defendant in relation to the said accident.
9) That subject to the policy cover referred to, the said motor vehicle registration number KDC 522F was at all times to be used for personal and private purposes only and any use of the vehicle for commercial activities, including hire or reward, was strictly prohibited under the terms of the policy.
10) That at the time of the accident, motor vehicle registration number KDC 522F had been leased to a third lparty for commercial purposes, contrary to the terms of the insurance policy, which strictly prohibited such use and thereby invalidated any coverage for liabilities arising from the said accident.
11) That in the foregoing, the defendant/respondent herein breached the terms and conditions under Policy Cover number C/2023/100/9001/48650.
12) That consequently, the plaintiff repudiated the claim Makindu MCCC No. E179 of 2024, Kelvin Muulu Nzuki versus Julius Stephen Kiarie and Osman Hassan on account of breach of the terms of the insurance contract an specifically that the defendant’s motor vehicle registration number KDC 522F had been leased/rented to a third party contrary to the terms set out under the policy document/agreement between the plaintiff/applicant and the defendant/respondent herein. Consequent to the breach, the plaintiff is not liable whatsoever to assume any liability arising from the subject accident including any judgment arising from Makindu MCCC number E179 of 2024, Kelvin Muulu Nzuki versus Julius Stephen Kiarie and Osman Hassan.
13) That in the event the compensatory suit in the subordinate court proceeds to conclusion and judgment issued, then the plaintiff therein would be at liberty to enforce the judgment against the plaintiff/applicant herein as the insurer of the defendant’s motor vehicle, which event would render the instant application a mere academic exercise.
14) That the instant proceedings have a direct impact to the proceedings in Makindu MCCC No. E179 of 2024, Kelvin Muulu Nzuki versus Julius Stephen Kiarie and Osman Hassan as pursuant to the contract of insurance between the plaintiff and the defendant, the plaintiff is under an obligation to secure legal representation for the defendant in the primary suit and such a move in view of the instant proceedings would breed conflict of interest thus warranting the stay of the said proceedings awaiting the outcome herein.
15) That in the circumstances, it would be prudent and in the interest of justice that further proceedings in Makindu MCCC No. E179 of 2024, Kelvin Muulu Nzuki versus Julius Stephen Kiarie and Osman Hassan be stayed pending the outcome of this application and the declaratory suit, which application would result into orders directly affecting the said suit.
4. When the matter came for hearing the court was told by counsel for the applicant that the applicant had been served and there was no response.
5. The applicant asked the court to consider the application unopposed and grant the prayers.
6. The applicant has annexed the plaint in the Makindu MCCC E179 of 2024 and the investigator’s report. I have also seen the plaint in this matter.
7. I had indicated that the orders would be uploaded yesterday at close of business but due to pressure of work, I was unable to do so.
8. The plaintiff alleged he was a passenger in the said motor vehicle.
9. Is the application tenable?
10. Has the applicant established grounds for stay of proceedings in th subordinate court?
11. The main allegation is that the motor vehicle was leased to a third party contrary to the contract of insurance when the accident happened.
12. That is only an issue as between the insured and the applicant.
13. It is my view that it has no bearing as to whether or not the the plaintiff is entitled to damages for the injuries sustained in the alleged evidence and whether defendants were liable for the accident.
14. In my view the applicant needs to establish that their insured actually leased the motor vehicle to a 3rd party before they can walk away from their liability. Once again that is an issue between them and their insured.
15. The applicant will not be prejudiced if the matter before the subordinate court proceeds to hearing and determination.
16. They will only suffer prejudice if the plaintiff obtains judgment against the defendants and proceeds to execute against the applicant before the issue between them and the insured has been settled.
17. In my view nothing stops the applicant from proceeding with the suit against their insured, and should the plaintiff obtain judgment against their insured while their dispute is pending determination, then the applicant will have reason to seek stay of execution pending the hearing and determination of the suit between the applicant and their insured.
18. In the circumstances I find that it would not be in the interest of justice to stay the proceedings in the subordinate court when the applicant has another recourse that does not include putting a pause on another litigant’s pursuit of justice.
19. Hence, on the foregoing grounds the application for stay of proceedings is denied, as the applicant can always obtain stay of execution pending the hearing and the determination of the declaratory suit.
20. Orders accordingly.
Dated signed and uploaded on CTS this 5th March 2025
Mumbua T Matheka
Judge