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JudgmentKENYA ALLIANCE INSURANCE CO LTD VS WETALUNA BEN WANJALA7 min read

KENYA ALLIANCE INSURANCE CO LTD VS WETALUNA BEN WANJALA

High Court at Makueni High Court · · Matheka, Teresia Mumbua

RULING

  1. Before me is the Notice of Motion brought under Order 51 Rule 1 of the Civil Procedure Code, section 3, 3A of the Civil Procedure Act , section 10(4) of the Insurance )Motor Vehicle third Party Risk) Act Cap 405 of Laws of Kenya
  2. The application seeks leave for the applicants to be enjoined to these proceedings as interested parties.
  3. The application is supported by the grounds on its face and the supporting affidavit of Patrick Waiganjo Wachira – the grounds are inter alia:-
  4. That the applicants herein Ruth Mbithe Muia, Pamela Sikuku, Victor Maramba and Basil Mucheke were involved in an accident on the 22nd October, 2022 and involved the defendant’s motor vehicle registration number KCY 483K.
  5. That the applicants went ahead and instituted various suits against the defendant herein in Kilungu Chief Magistrates which are the subject of this proceedings.
  6. That the plaintiff herein has sought stay of proceedings in the said suits pending the hearing and determination of the instant suit.
  7. That the orders being sought by the plaintiff herein will have an impact on how the applicants will prosecute their suits.
  8. That it is in the interests of justice that the applicants herein are enjoined to the proceedings.
  9. Patrick W. Wachira depones that he is the advocate for the applicants in the various suits involving the applicants and the defendants/respondents in Kilungu MCCC E061 of 2023, E074of 2023, E075 of 2023, E079 of 2023. The suits arose out of a road traffic accident which happened on 22/10/2022 involving motor vehicle registration No. KCY 483. The applicants sustained injuries sued the defendant, the plaintiff herein was served.
  10. The defendant is the insurer of the plaintiff and the orders sought, to stay the proceedings in the lower court will affect the progress of the applicant’s cases.
  11. I searched the file seeking the replying affidavit but I did not see it. I even searched the CTS but I did not see the replying affidavit.
  12. Both parties filed submissions which I have considered and the only issue is whether the applicants have met the threshold to be enjoined to this suit as interested parties.
  13. It is noteworthy that both parties rely on the Supreme Court’s conditions on who is an interested party – in Francis Karioki Muruatetu & Another vs Republic & 5 Others [2016] e KLR. Jackson Mwaniki Ndungu  Anor –vs- Peter Anjenyo Vuhya & Anor; Peter Kamau Mwangi (Interested Party) [2018] e KLR – on the basis of enjoining a party as an interested party, Gateway Insurance Co. Ltd vs- Moses Jaika Luvai [2008] e KLR on the application of section 10(1) of the Motor Vehicle (Third Party Risks) Act –
  14. The respondent submits that Order 1 Rule 10(2) of the CPR provides for joinder
  15. Relying on Communication Commissioner of Kenya & 3 Others –vs- Royal Media Services Ltd & 7 Others [2014] e KLR on the considerations before joinder of interested parties, it is argued for the respondents that the suit between the plaintiff and the defendant is based on contract – that the applicants are not party to the contract and the plaintiff has not sought any orders against them; that the doctrine of privity of contract excludes the applicants from the suit. It is further argued that the applicant’s claims against the defendant are tortious in nature and the damages payable – the defendant is personally liable – and that there is no nexus between the applicants and the applicants and the claim in this suit. The respondent relies on Kenya Medical Laboratory Technicians & Technologist Board & 6 Others vs AG & 4 Others [2017] e KLR – for the proposition that the test for joinder is “whether the intended interested party has an identifiable stake or legal interest, or duty in the proceedings”. It is argued that the outcome of this suit would be a declaration that the plaintiff has no obligation under the contract between it and the defendant and that this has no bearing on the claims in the primary suit.
  16. I have perused the plaint filed on 25/4/2023. The matter arose out of the road traffic accident that occurred on 22/10/2022 involving motor vehicle registration number KCY 483K – insured by the plaintiff under policy No. 71/MPEQC/0626/04/comp. At paragraph 7 of the plaint is listed the four suits in which the applicants herein are  the plaintiffs against the  plaintiff’s insured. The prayers sought by the plaintiff are: –
  17. A declaration that it is not bound to pay and /or satisfy any judgment arising from:
  18. KILUNGU CMCC NO. E074 OF 2023 RUTHU MBITHE MUIA –VS- WETULUNA BEN WANJALA
  19. KILUNGU CMCC NO. E061 OF 2023 PAMELA SIKUKU –VS- WETULUNA BEN WANJALA
  20. KILUNGU CMCC NO. E075 OF 2023 VICTOR MARAMBA –VS- WETULUNA BEN WANJALA
  21. KILUNGU CMCC NO. E079 OF 2023 BASIL MUCHEKE –VS- WETULUNA BEN WANJALA
  22. A declaration that it is not bound to pay and/or satisfy any judgment in any suit arising from the accident involving the defendant’s motor vehicle and the plaintiff on 11/110/2022 and/or indemnify the defendant against any claim in respect of bodily injury to any person, property damage or satisfy any claim whatsoever arising out of the accident which allegedly occurred involving the defendant’s motor vehicle.
  23. Costs of the suit.
  24. Interest on (c) above at court rates.
  25. How then can the respondent argue that the applicants would not be interested parties – yet the subject matter of this suit is the subject matter of their suits, and the settlement of their claims would ordinarily depend on the fact that the motor vehicle was insured.
  26. In addition, the application brought by the plaintiff dated 31/3/2023 seeks inter alia that:
  • That the honourable court be pleased to issue an order staying proceedings in -
  • KILUNGU CMCC NO. E074 OF 2023 RUTH MBITHE MUIA VS. WETULUNA BEN WANJALA;
  • KILUNGU CMCC NO. EO61 OF 2023 PAMELA SIKUKU BS- WETULUNA BEN WANJALA;
  • KILUNGU CMCC NO. E075 OF 2023 VICTOR MARAMBA VS- WETULUNA BEN WANJALA and
  • KILUNGU CMCC NO. E079 OF 2023 BASIL MUCHEKE BS WETULUNA BEN WANJALA herein referred to as KILUNGU CMCC: VARIOUS PLAINTIFFS –VS WETULUNA BEN WANJALA pending the inter-parte hearing of the instant application.
  • That the honourable court be pleased to issue an order staying proceedings in the suits aforementioned pending the hearing and determination of the instant application.
  • That the honourable court be pleased to issue an order staying proceedings in the suits listed herein; KILUNGU CHIEF MAGISTRATES COURT; VARIOUS PLAINTIFFS –VS- WETULUNA BEN WANJALA pending the hearing and determination of the suit.
  1. The main ground for the application is that the plaintiff was at all relevant times the insurer of motor vehicle registration number KCY 483K, and the defendant was its insured – and that the applicants were allegedly among the persons who sustained injuries when the motor vehicle was involved in a road traffic accident and filed various suits seeking compensation. The nexus, in my view is right there – between the claims by the applicants and the claim by the plaintiff.
  2. To this end I must agree with the Judge in Gateway Insurance Co. Ltd vs Moses Jaika Luvai [2008] e KLR where the Judge stated

“… The aforesaid provision is clear and speaks for itself. The plaintiffs in the suits which the insurer seeks to avoid liability under section 10(1) by way of declaratory suit must be notified of the institution of the declaration suit and after which the said plaintiffs are entitled to be made parties to the insurer’s suit if they think fit. The provision is mandatory and the court has no discretion on the matter. The discretion and election lies with the plaintiffs who have sued the insured for damages and losses arising from motor accidents. It is a right which none of the parties or the court can take away. As a result since the plaintiffs have applied to be enjoined in this suit as defendants, I do hereby grant prayer 2 and order that they be added as defendants in the suit ..”

  1. In the circumstances, and further guided by Francis Karioki Muruatetu & Another vs Republic & 5 Others [2016] e KLR for one to be enjoined as an interested party. These are the conditions:
  2. The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. The applicants’ interests does not need over emphasis.
  3. The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the court. It must also be clearly outlined and not something remote. The applicant’s will suffer prejudice if they are not enjoined. That clearly emerges from the pleadings.
  4. Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court. This has been done
  5. I find that the application is merited. The application is allowed as prayed with costs in the cause.

Dated, signed and delivered this 26th day of July 2024

Mumbua T Matheka

Judge

    KENYA ALLIANCE INSURANCE CO LTD VS WETALUNA BEN WANJALA KENYA ALLIANCE INSURANCE CO LTD VS WETALUNA BEN WANJALA