Skip to content
Judgmentheritage insurance co ltd VS RONALD KIMUTAI YANO4 min read

heritage insurance co ltd VS RONALD KIMUTAI YANO

High Court at Bungoma High Court · · Rose Ougo

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA  AT BUNGOMA

CIVIL SUIT NO. E003 OF 2024

HERITAGE INSURANCE CO. LTD ………. PLAINTIFF/APPLICANT

VERSUS

RONALD KIMUTAI YANO ………………DEFENDANT/RESPONDENT

RULING

1. The applicant in a motion dated 28.8.2024 brought under Order 51 of the Civil Procedure Rules, Sections 3, 3A & 6 of the Civil Procedure Act seeks the following orders;

  1. Spent
  2. That this honourable court be pleased to grant a stay of proceedings and/or execution in Bungoma CMCC NO. E191, E192, E202, E204, E242 & E352 all of 2023 between various plaintiffs against the Respondent, pending hearing and determination of this declaratory suit to avoid miscarriage of justice.
  3. That in addition, pending the hearing and determination of this the Honourable Court be pleased to grant stay of proceedings and/or execution of any suit arising out of accident that occurred on 26th May, 2022 involving motor vehicle registration NO. KCF 744M/ZG1384 which was the subject of the Insurance Policy that had been issued by the plaintiff as Insurer to the Defendant as insured and which Policy was cancelled due to breach by the Insured.
  4. That this Honourable Court be pleased to grant temporary orders of stay of proceedings in terms of prayer (b) and (c) above pending the hearing and determination of this application inter-parties and pending further orders of the court.
  5. That such other orders be made as are just and expedient.
  6. Costs be in the cause.

2. The application is supported by the grounds on the face of the application and supporting affidavits sworn by Gibson Kamau and E.K. Ruto dated 28.8.2024. In brief, it is averred that the defendant/respondent took out an insurance cover from the Applicant/Plaintiff for carriage trailer registration No. ZG1384 under policy NO. 1021178070396 and the policy cover was being financed but the Respondent failed to honour the loan agreement to the financier and consequently, the financier declined and/or cancelled the payments of premiums to the Applicant. The Applicant/plaintiff proceeded to cancel the policy cover on 6th April 2022 and issued a cancellation certificate to the Respondent.   At the time of the accident which occurred on 26th May, 2022, the Respondent was not insured by the Applicant.  As a result of the said accident, various  claims,  to wit Bungoma CMCC No. E191 OF 2023  Teresia  Wahome –vs- Ronald Kimutai Yano, Bungoma  CMCC NO. E202  of 2023  Pamellah Namalwa –vs- Ronald Kimutai Yano, Bungoma CMCC NO. E192 of 2023   Pamellah Namalwa  -vs- Ronald Kimutai Yano, Bungoma CMCC No. E204  OF 2023, Jenepher Naliaka   -vs- Ronald Kimutai Yano, Bungoma CMCC No. 242 OF 2023 – Joshua  Wangunda  -vs-  Ronald Kimutai Yano & duplicate file Bungoma CMCC NO. E352 of 2022 – Joshua Wangunda –vs- Ronald Kimutai Yano were lodged.  The failure to pay policy premiums is a fundamental breach of the insurance policy hence the applicant seeks to repudiate any liability thereof.  The Applicant has currently filed a declaratory suit seeking a declaration that they are not liable to compensate and/or indemnify any third party in respect of the accident of 26th May 2022 involving the suit motor vehicle.  The  Applicant will be prejudiced improperly and the suit filed therein  will be rendered nugatory if stay of proceedings and or stay of further proceedings is not granted and the declaratory suit succeeds thereafter. That there will be conflicting orders from different courts if stay of proceedings is not granted. The Applicant raises a reasonable cause of action and it is in the interests of justice and fairness for stay of proceedings to be granted.

3. The application was not opposed by the respondent. In the case of Global Tours & Travels Limited; Nairobi HC Winding up Cause No. 43 of 2000 Ringera J, (as he then was) stated that: “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. ..”.

4. The applicant's reason for seeking the stay order is that it had cancelled the policy issued to the respondent at the time the accident occurred. The applicant has demonstrated that the order sought is necessary in the interest of justice. The applicant is granted the following orders;

a)  A stay of proceedings and/or execution in Bungoma CMCC NO. E191, E192, E202, E204, E242 & E352 all of 2023 between various plaintiffs against the Respondent, pending hearing and determination of this declaratory suit.

b).  A stay of proceedings and/or execution of any suit arising out of an accident that occurred on 26th May 2022 involving motor vehicle registration NO. KCF 744M/ZG1384.

c) Costs be in the course.

Dated, signed, and delivered at Bungoma on the 17th day of January 2025.

R.E.OUGO

JUDGE

In the presence of:

Applicant  - Absent

Respondent – Absent

Wilkister                                 C/A

    heritage insurance co ltd VS RONALD KIMUTAI YANO heritage insurance co ltd VS RONALD KIMUTAI YANO