REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL SUIT NO. E002 OF 2026
MOSES AMBANI TEMBU ....…………………………………………………………APPLICANT
VERSUS
MONARCH INSURANCE CO. LIMITED.................................………………RESPONDENT
RULING
1. The plaintiff/applicant herein, Moses Ambani Tembu has filed suit against the defendant/respondent, Monarch Insurance Company Ltd through a plaint dated 19 th January 2026 seeking orders that:
a. A declaration that the defendant is statutorily obligated to absolve, indemnify and or hold indemnified the plaintiff from any/all actions, proceedings, procedures, process, liability, claims, damages, costs and expenses in relation to, arising out of use of motor vehicle registration number KAH 736G Toyota Pick-up.
b. An order of specific performance compelling the defendant to absolve, indemnify and/or hold indemnified the plaintiff from any/all actions, proceedings, procedures, losses, liability, claims, damages, costs and expenses in relation to, arising out of the use of motor vehicle registration number KAH 736G Toyota Pick-up.
c. Costs.
d. Any other relief that the court may deem fit.
2. Alongside the plaint, the plaintiff has filed a Notice of Motion dated 19 th January 2026 seeking one substantive order that, pending the hearing and determination of the suit this court issues an order of stay of proceedings and execution in Kwale No. E037 of 2025, Kwale E038 of 2025, Kwale E050 of 2025, Kwale E096 of 2025, Kwale E104 of 2025, Kwale E117 of 2025, Kwale E118 of 2025, Kwale E126 of 2025, Kwale E128 of 2025, Kwale E146 of 2025 Mombasa E844 of 2025, Mombasa E845 of 2025 Of 2025, and any suit that may arise.
3. The application is filed under article 159 of the Constitution of Kenya, sections1A, 1B, 3A, and 63 (e) of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 51 Rule 1 of the Civil Procedure Rules 2010 and all enabling provisions of the law. The grounds in support of the application are laid on the face therefore and expounded in the supporting affidavit sworn on 19 th January 2026 by Moses Ambani Tembu the applicant.
4. The grounds can be summarized as follows. The applicant is the registered and insured owner of a motor vehicle registration number KAH 736G Toyota Pickup. The respondent herein, Monarch Insurance Company Ltd issued the applicant with a policy of insurance No. HDO/0800/008898/2024 for the motor vehicle to indemnify the applicant from any claims, losses, damages, costs, liability arising out of the use of the subject motor vehicle.
5. On the 20 th December 2024, the authorized driver for the applicant while driving the motor vehicle registration No. KAH 736G Toyota Pickup from Ukunda heading to Likoni at Maganyakulo area was involved in a head on collision with motor vehicle registration No. KDL 775B Toyota matatu. As a result, there were two fatalities and multiple injuries sustained by the passengers in motor vehicle of registration No. KDL 775B Nissan matatu.
6. The applicant thus became exposed vicariously liable for the injuries to the passengers arising from the accident and various suits were filed against the applicant. The respondent, as the insurer of the accident vehicle, was served with statutory notices in accordance with section 10(3) of the Insurance (Motor Vehicle Third Party Risks) Act (Cap. 405) Laws of Kenya. The respondent, in satisfaction of its obligation as the applicant’s insurer, appointed advocates to act for the applicant in the ensuing suits.
7. On the 19 th November 2025, the respondent wrote to the applicant purporting to repudiate all claims against the applicant that arose from the accident and to avoid its obligations to the applicant under the policy as required under sections 5 and 10 of the said Act.
8. It is the applicant’s case that the advocate appointed by the respondent to act in the matters was instructed to cease from acting thereby legally exposing the applicant to face possible judgments and attachment of property in the cases where he was sued for vicarious liability.
9. The applicant has therefore sued the respondent seeking the borders outlined above on grounds that the respondent’s action is unlawful, illegal and in breach of the insurance policy entered into by the parties.
10. It is the applicant’s case that an order of stay of proceedings of all matters ensuing from the accident be granted, otherwise, he stands to suffer grave, unjustified, irreversible prejudice.
11. On the 28 th January 2026 the Court issued an order that the application be served on the respondent and all parties interested in the matter particularly the plaintiffs in Kwale No. E037 of 2025, Kwale E038 of 2025, Kwale E050 of 2025, Kwale E096 of 2025, Kwale E104 of 2025, Kwale E117 of 2025, Kwale E118 of 2025, Kwale E126 of 2025, Kwale E128 of 2025, Kwale E146 of 2025 Mombasa E844 of 2025, Mombasa E845 of 2025 Of 2025, to enable them file responses within 14 days from the date of the order.
12. The application is opposed by the respondent through a replying affidavit sworn by Rebekah Akinyi Ajigo the Legal Officer of the respondent on 12 th May 2026. She deposes that the respondent lawfully and procedurally repudiated liability under the insurance policy upon discovery that the motor vehicle at the material time was being driven by an individual who held a Type C license and who was therefore not licensed to operate that class of vehicle which required a Type B licence. As such, it was a fundamental breach of the terms of the insurance policy thereby discharging the respondent from the obligation to indemnify.
13. She deposes further that the applicant was duly notified of the repudiation of liability and the reason for repudiation. She deposes that once the respondent repudiated the policy, it ceased to have any contractual or legal obligation to continue acting for or defending the applicant in the court proceedings arising out of the accident. That unless the court dismisses the application the respondent stands to suffer grave prejudice by being compelled to shoulder for risks excluded under the policy.
14. The Interested Parties Counsel in Nos. Kwale SRMCC No. E096 of 2025, Kwale SRMCC No. E117 of 2025 and Kwale SRMCC No. E118 of 2025, filed a Statement of Grounds of Opposition dated 10 th February 2026 together with a Replying Affidavit sworn on 26 th March 2026 by Manase Ananda Calleb advocate in opposition to the applicant’s notice of motion. He deposes that the Interested Parties in the cases have not obtained any decree capable of being stayed. Further that the respondent is bound by law to indemnify the applicant for any decree that may arise from the judgments in favour of the Interested Parties. Further learned counsel deposes that the application is an affront to the constitutional rights of the Interested Parties with regards to access to justice.
15. A replying affidavit sworn on 9 th February 2026 by Ally Bakari Kibwana on his own behalf and on behalf of Masudi Juma Cheche, Nzula Arthur Makilya, Mwaka Mdigo Tumbo, Rosalia Loko Muli and Beruwa Oda Gonzi was also filed. The deponent deposes that the dispute between the applicant and the respondent is private between them based on the interpretation and enforcement of contractual obligations under the policy and does not in any way affect their rights to file suits in the trial courts to seek compensation for the accident. Further that the suits in the trial courts ought to be determined first before the it can be established whether the respondent as the insurer of the accident vehicle will be liable to indemnify the applicant and therefore compensate the Interested Parties.
16. Ally Bakari Kibwana did not disclose the case numbers in which the Interested Parties he had filed the affidavit on behalf of had sued the applicant before the trial courts. It is therefore difficult to place their response in its proper context.
17. Other parties who had been sued the applicant as listed above and who would be interested in the suit and the application were duly served but chose not to participate in the application.
18. The application was disposed of by way of written submissions of the applicant, respondent and the Interested Parties in Kwale E117 of 2015 and Kwale E118 of 2025.
19. The applicant filed submissions dated 28 th May 2026 and argued the application on the basis that it had satisfied the conditions for grant of an order of stay of proceedings as set out in various judicial authorities. He set out the principles as enunciated in the case of Global Tours & Travels Limited, Nairobi High Court Winding Up Cause No. 43 of 2000 (UR) as cited in numerous authorities as:
a. Whether the applicant has established that he/she has a prima facie arguable case.
b. Whether the application was filed expeditiously
c. Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.
20. Learned counsel for the applicants submits that the application meets the threshold for grant of the orders sought and should be granted. Learned counsel submits that arising out of the contract of insurance between the parties and the respondent having taken up the defence of the suits arising from the accident, the applicant had a legitimate expectation that the respondent would defend the cases to conclusion. That if the cases in the trial courts are allowed to proceed before the issues in the suit herein are determined the applicant will suffer prejudice by way of costs in defending the suits at the risk of adverse judgments against him.
21. The respondent on its part submits that it repudiated liability on the ground that the driver held a class “C” driving license while the insured motor vehicle allegedly required a class “B” license. That it was the duty of the applicant to disclose material facts with utmost good faith which is the very nature of insurance contracts. Counsel relied on the Court of Appeal case of Co-operative Insurance Company Ltd. vs. David Wachira Wambugu [2010] 1KLR 254 which states as below:-
“Contracts of insurance are contracts of the utmost good faith. This gives rise to a legal obligation upon the insured, prior to the contract being made, to disclose to the insurer all material facts and circumstances known to the insured which affect the risk being run. Lord Mansfield’s words in Carter vs Boehm (1766) Burr. 1905 have stood the test of time: Insurance is a contract of speculation. The special facts upon which the contingent chance is to be computed lie most commonly in the knowledge of the assured only; the underwriter trusts to his representation, and proceeds upon confidence that he does not keep back any circumstance in his knowledge to mislead the underwriter into a belief that the circumstance does not exist and to induce him to estimate the risqué as if it did not exist. The keeping back such circumstance is a fraud, and therefore the policy is void. Although the suppression should happen through mistake, without any fraudulent intention, yet still the underwriter is deceived and the policy is void; because the risqué run is really different from the risqué understood and intended to be run at the time of the agreement… The policy would be equally void against the underwriter if he concealed… The governing principle is applicable to all contracts and dealings. Good faith forbids either party, by concealing what he privately knows to draw the other into a bargain from his ignorance of the fact and his believing the contrary…”
22. For the respondent, its position is that it has rightfully repudiated the contract of insurance and it can no longer continue maintaining advocates for him as it is not legally bound to indemnify him in the various suits filed against him.
23. Learned counsel for the Interested Parties in Nos. Kwale SRMCC No. E096 of 2025, Kwale SRMCC No. E117 of 2025 and Kwale SRMCC No. E118 of 2025 filed submissions dated 28 th May 2026 and submitted that the Interested Parties have already given evidence in these matters at the trial court stating the applicant was the policy holder of the motor vehicle registration No. KAH 736G Toyota Pick up and the respondent was served with a statutory notice Under Cap 405 Laws of Kenya. No plausible/ reason has been given as to why the applicant wants to use the court to stay the lower court proceedings. That under Cap. 405 Laws of Kenya the Interested Parties are bound to file declaratory suits against the respondent in the event they obtain judgments against the applicant at the lower court. Learned counsel therefore urged the court to dismiss the application with costs.
24. The Interested Parties submit that it will amount to a denial of justice for the court to stay the proceedings in the trial courts s such an order will gag and prejudice the rights of the parties to compensation. Further that in any case, in the event the Interested Parties are successful, they will have to file declaratory suits against the respondent herein and so no prejudice will be suffered by the applicant.
25. The other Interested Parties did not file submissions on the application.
26. I have considered the application herein, the responses thereto and the submissions by the parties. The issue for determination is whether the applicant herein has offered sufficient reasons to warrant this court to exercise its discretion to stay the proceedings and execution in Magistrates Court Civil Case Nos. Kwale E037 of 2025, Kwale E038 of 2025, Kwale E050 of 2025, Kwale E096 of 2025, Kwale E104 of 2025, Kwale E117 of 2025, Kwale E118 of 2025, Kwale E126 of 2025, Kwale E128 of 2025, Kwale E146 of 2025 Mombasa E844 of 2025, Mombasa E845 of 2025 of 2025, and any suit that may arise before the trial courts pending the hearing and determination of the suit filed herein.
27. The requirements for stay of proceedings are different from those of stay of execution. There is guidance on this difference in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) where, while considering a similar application the High Court stated as follows:
“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent. See Ringera J in the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus;
“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. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously ” (emphasis added)
See also illumination on the threshold for stay of proceedings in the following passages in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”
“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
28. From the above case, this court is supposed to consider the pros and cons of granting the order of stay taking into account the following factors:
a. Whether the applicant has established that he has a prima facie arguable case.
b. Whether the application was filed expeditiously
c. Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.
29. I am satisfied that the application was filed timeously. There is affidavit evidence that the respondent wrote to the applicant purporting to repudiate the contract of insurance on 19 th November 2025 and this application was filed two months later on 19 th January 2026. Taking into account factors such as correspondences between the parties within the period, the fact that under Order 50 Rule 4 of the Civil Procedure Rules time for filing pleadings does not run and is omitted from any computation of time for the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included.
30. The other two grounds of whether the applicant has established a prima facie arguable case and sufficient reasons to warrant grant of the orders sought will be considered together.
31. The applicant’s main reasons for seeking stay of proceedings in the primary suits is that the respondent/insurer has allegedly sought to avoid its obligations to indemnify the applicant of any losses or claims under the policy of insurance between the parties thereby exposing the applicant to potential execution of decrees arising from the various suits filed or to be filed arising out of the accident. Concomitantly the respondent has withdrawn instructions from advocates it had appointed to act for the applicant in the matters and therefore the applicant has to appoint his own advocates and meet the costs thereof. The question is whether these are sufficient reasons and whether it is in the interest if justice to grant an order of stay of proceedings in the suits pending before the magistrates’ courts.
32. First, it is worthy to note that the application for stay of proceedings is not in the present case but in cases filed by third parties in what is commonly known as primary suits. The proceedings in the various primary suits that are sought to be stayed are not in the present case. They involve the applicant and third parties who had not even been made parties to the proceedings herein, The court had to come in to have them brought on board as Interested Parties because they were definitely parties affected by any orders issued by this court. The pleadings in those suits are not before this court for it to determine whether they present a prima facie arguable case or not. However, it is patently clear that the applicant has not alleged that the cases are frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant has not attempted to show that the plaintiffs in the primary suits are unlikely to succeed on the basis of the pleadings and the facts of the respective cases. The question is, in whose interest will the stay of proceedings be? Obviously for the applicant and the respondent herein but definitely not for the Interested Parties. Consequently, I find that there is no prima facie case established by the applicant to warrant the order sought.
33. Furthermore, the applicant has not demonstrated any threat of execution against him in any of the primary suits capable of being stayed by this court. The suits in the trial courts are still ongoing with none having been concluded. Even the fact that the decisions will be against the applicant can only be speculative and not factual. I find that staying the proceedings at the trial courts will clearly impede the plaintiffs in the primary suits from pursuing their claims for no good reason.
34. I therefore find the application herein to be without merit as the same has not met the threshold for grant of the orders sought. I hereby decline to issue the order for stay of proceedings and stay of execution in Magistrates Courts Nos Kwale. E037 of 2025, Kwale E038 of 2025, Kwale E050 of 2025, Kwale E096 of 2025, Kwale E104 of 2025, Kwale E117 of 2025, Kwale E118 of 2025, Kwale E126 of 2025, Kwale E128 of 2025, Kwale E146 of 2025 Mombasa E844 of 2025, Mombasa E845 of 2025 Of 2025, and any suit that may arise from the accident involving the applicant’s motor vehicle registration number KAH 736G Toyota Pick-up that occurred on 20 th December 2024 along Ukunda-Likoni at Maganyakulo area. The application is dismissed.
35. The applicant shall bear the costs of the application for both the respondent and the Interested Parties who respondent to the application.
36. Orders accordingly.
ANDAYI W. F.
JUDGE
Written, dated and signed and d elivered on the Virtual platform, Microsoft Teams this 9 th day of July 2026.
In the presence of:
Juma (Ms) h/b for Adhoch for Applicant.
Masakhalia (Ms) for the Respondent.
Juma (Ms) for the Interested Parties.
Ananda for the Interested Parties.
Ummu: Court assistant
ANDAYI W. F.
JUDGE
kwale HCCC No. E002/202610/stay of proceedings
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL SUIT NO. E002 OF 2026
MOSES AMBANI TEMBU ....…………………………………………………………APPLICANT
VERSUS
MONARCH INSURANCE CO. LIMITED.................................………………RESPONDENT
RULING
1. The plaintiff/applicant herein, Moses Ambani Tembu has filed suit against the defendant/respondent, Monarch Insurance Company Ltd through a plaint dated 19 th January 2026 seeking orders that:
a. A declaration that the defendant is statutorily obligated to absolve, indemnify and or hold indemnified the plaintiff from any/all actions, proceedings, procedures, process, liability, claims, damages, costs and expenses in relation to, arising out of use of motor vehicle registration number KAH 736G Toyota Pick-up.
b. An order of specific performance compelling the defendant to absolve, indemnify and/or hold indemnified the plaintiff from any/all actions, proceedings, procedures, losses, liability, claims, damages, costs and expenses in relation to, arising out of the use of motor vehicle registration number KAH 736G Toyota Pick-up.
c. Costs.
d. Any other relief that the court may deem fit.
2. Alongside the plaint, the plaintiff has filed a Notice of Motion dated 19 th January 2026 seeking one substantive order that, pending the hearing and determination of the suit this court issues an order of stay of proceedings and execution in Kwale No. E037 of 2025, Kwale E038 of 2025, Kwale E050 of 2025, Kwale E096 of 2025, Kwale E104 of 2025, Kwale E117 of 2025, Kwale E118 of 2025, Kwale E126 of 2025, Kwale E128 of 2025, Kwale E146 of 2025 Mombasa E844 of 2025, Mombasa E845 of 2025 Of 2025, and any suit that may arise.
3. The application is filed under article 159 of the Constitution of Kenya, sections1A, 1B, 3A, and 63 (e) of the Civil Procedure Act (Cap. 21) Laws of Kenya, Order 51 Rule 1 of the Civil Procedure Rules 2010 and all enabling provisions of the law. The grounds in support of the application are laid on the face therefore and expounded in the supporting affidavit sworn on 19 th January 2026 by Moses Ambani Tembu the applicant.
4. The grounds can be summarized as follows. The applicant is the registered and insured owner of a motor vehicle registration number KAH 736G Toyota Pickup. The respondent herein, Monarch Insurance Company Ltd issued the applicant with a policy of insurance No. HDO/0800/008898/2024 for the motor vehicle to indemnify the applicant from any claims, losses, damages, costs, liability arising out of the use of the subject motor vehicle.
5. On the 20 th December 2024, the authorized driver for the applicant while driving the motor vehicle registration No. KAH 736G Toyota Pickup from Ukunda heading to Likoni at Maganyakulo area was involved in a head on collision with motor vehicle registration No. KDL 775B Toyota matatu. As a result, there were two fatalities and multiple injuries sustained by the passengers in motor vehicle of registration No. KDL 775B Nissan matatu.
6. The applicant thus became exposed vicariously liable for the injuries to the passengers arising from the accident and various suits were filed against the applicant. The respondent, as the insurer of the accident vehicle, was served with statutory notices in accordance with section 10(3) of the Insurance (Motor Vehicle Third Party Risks) Act (Cap. 405) Laws of Kenya. The respondent, in satisfaction of its obligation as the applicant’s insurer, appointed advocates to act for the applicant in the ensuing suits.
7. On the 19 th November 2025, the respondent wrote to the applicant purporting to repudiate all claims against the applicant that arose from the accident and to avoid its obligations to the applicant under the policy as required under sections 5 and 10 of the said Act.
8. It is the applicant’s case that the advocate appointed by the respondent to act in the matters was instructed to cease from acting thereby legally exposing the applicant to face possible judgments and attachment of property in the cases where he was sued for vicarious liability.
9. The applicant has therefore sued the respondent seeking the borders outlined above on grounds that the respondent’s action is unlawful, illegal and in breach of the insurance policy entered into by the parties.
10. It is the applicant’s case that an order of stay of proceedings of all matters ensuing from the accident be granted, otherwise, he stands to suffer grave, unjustified, irreversible prejudice.
11. On the 28 th January 2026 the Court issued an order that the application be served on the respondent and all parties interested in the matter particularly the plaintiffs in Kwale No. E037 of 2025, Kwale E038 of 2025, Kwale E050 of 2025, Kwale E096 of 2025, Kwale E104 of 2025, Kwale E117 of 2025, Kwale E118 of 2025, Kwale E126 of 2025, Kwale E128 of 2025, Kwale E146 of 2025 Mombasa E844 of 2025, Mombasa E845 of 2025 Of 2025, to enable them file responses within 14 days from the date of the order.
12. The application is opposed by the respondent through a replying affidavit sworn by Rebekah Akinyi Ajigo the Legal Officer of the respondent on 12 th May 2026. She deposes that the respondent lawfully and procedurally repudiated liability under the insurance policy upon discovery that the motor vehicle at the material time was being driven by an individual who held a Type C license and who was therefore not licensed to operate that class of vehicle which required a Type B licence. As such, it was a fundamental breach of the terms of the insurance policy thereby discharging the respondent from the obligation to indemnify.
13. She deposes further that the applicant was duly notified of the repudiation of liability and the reason for repudiation. She deposes that once the respondent repudiated the policy, it ceased to have any contractual or legal obligation to continue acting for or defending the applicant in the court proceedings arising out of the accident. That unless the court dismisses the application the respondent stands to suffer grave prejudice by being compelled to shoulder for risks excluded under the policy.
14. The Interested Parties Counsel in Nos. Kwale SRMCC No. E096 of 2025, Kwale SRMCC No. E117 of 2025 and Kwale SRMCC No. E118 of 2025, filed a Statement of Grounds of Opposition dated 10 th February 2026 together with a Replying Affidavit sworn on 26 th March 2026 by Manase Ananda Calleb advocate in opposition to the applicant’s notice of motion. He deposes that the Interested Parties in the cases have not obtained any decree capable of being stayed. Further that the respondent is bound by law to indemnify the applicant for any decree that may arise from the judgments in favour of the Interested Parties. Further learned counsel deposes that the application is an affront to the constitutional rights of the Interested Parties with regards to access to justice.
15. A replying affidavit sworn on 9 th February 2026 by Ally Bakari Kibwana on his own behalf and on behalf of Masudi Juma Cheche, Nzula Arthur Makilya, Mwaka Mdigo Tumbo, Rosalia Loko Muli and Beruwa Oda Gonzi was also filed. The deponent deposes that the dispute between the applicant and the respondent is private between them based on the interpretation and enforcement of contractual obligations under the policy and does not in any way affect their rights to file suits in the trial courts to seek compensation for the accident. Further that the suits in the trial courts ought to be determined first before the it can be established whether the respondent as the insurer of the accident vehicle will be liable to indemnify the applicant and therefore compensate the Interested Parties.
16. Ally Bakari Kibwana did not disclose the case numbers in which the Interested Parties he had filed the affidavit on behalf of had sued the applicant before the trial courts. It is therefore difficult to place their response in its proper context.
17. Other parties who had been sued the applicant as listed above and who would be interested in the suit and the application were duly served but chose not to participate in the application.
18. The application was disposed of by way of written submissions of the applicant, respondent and the Interested Parties in Kwale E117 of 2015 and Kwale E118 of 2025.
19. The applicant filed submissions dated 28 th May 2026 and argued the application on the basis that it had satisfied the conditions for grant of an order of stay of proceedings as set out in various judicial authorities. He set out the principles as enunciated in the case of Global Tours & Travels Limited, Nairobi High Court Winding Up Cause No. 43 of 2000 (UR) as cited in numerous authorities as:
a. Whether the applicant has established that he/she has a prima facie arguable case.
b. Whether the application was filed expeditiously
c. Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.
20. Learned counsel for the applicants submits that the application meets the threshold for grant of the orders sought and should be granted. Learned counsel submits that arising out of the contract of insurance between the parties and the respondent having taken up the defence of the suits arising from the accident, the applicant had a legitimate expectation that the respondent would defend the cases to conclusion. That if the cases in the trial courts are allowed to proceed before the issues in the suit herein are determined the applicant will suffer prejudice by way of costs in defending the suits at the risk of adverse judgments against him.
21. The respondent on its part submits that it repudiated liability on the ground that the driver held a class “C” driving license while the insured motor vehicle allegedly required a class “B” license. That it was the duty of the applicant to disclose material facts with utmost good faith which is the very nature of insurance contracts. Counsel relied on the Court of Appeal case of Co-operative Insurance Company Ltd. vs. David Wachira Wambugu [2010] 1KLR 254 which states as below:-
“Contracts of insurance are contracts of the utmost good faith. This gives rise to a legal obligation upon the insured, prior to the contract being made, to disclose to the insurer all material facts and circumstances known to the insured which affect the risk being run. Lord Mansfield’s words in Carter vs Boehm (1766) Burr. 1905 have stood the test of time: Insurance is a contract of speculation. The special facts upon which the contingent chance is to be computed lie most commonly in the knowledge of the assured only; the underwriter trusts to his representation, and proceeds upon confidence that he does not keep back any circumstance in his knowledge to mislead the underwriter into a belief that the circumstance does not exist and to induce him to estimate the risqué as if it did not exist. The keeping back such circumstance is a fraud, and therefore the policy is void. Although the suppression should happen through mistake, without any fraudulent intention, yet still the underwriter is deceived and the policy is void; because the risqué run is really different from the risqué understood and intended to be run at the time of the agreement… The policy would be equally void against the underwriter if he concealed… The governing principle is applicable to all contracts and dealings. Good faith forbids either party, by concealing what he privately knows to draw the other into a bargain from his ignorance of the fact and his believing the contrary…”
22. For the respondent, its position is that it has rightfully repudiated the contract of insurance and it can no longer continue maintaining advocates for him as it is not legally bound to indemnify him in the various suits filed against him.
23. Learned counsel for the Interested Parties in Nos. Kwale SRMCC No. E096 of 2025, Kwale SRMCC No. E117 of 2025 and Kwale SRMCC No. E118 of 2025 filed submissions dated 28 th May 2026 and submitted that the Interested Parties have already given evidence in these matters at the trial court stating the applicant was the policy holder of the motor vehicle registration No. KAH 736G Toyota Pick up and the respondent was served with a statutory notice Under Cap 405 Laws of Kenya. No plausible/ reason has been given as to why the applicant wants to use the court to stay the lower court proceedings. That under Cap. 405 Laws of Kenya the Interested Parties are bound to file declaratory suits against the respondent in the event they obtain judgments against the applicant at the lower court. Learned counsel therefore urged the court to dismiss the application with costs.
24. The Interested Parties submit that it will amount to a denial of justice for the court to stay the proceedings in the trial courts s such an order will gag and prejudice the rights of the parties to compensation. Further that in any case, in the event the Interested Parties are successful, they will have to file declaratory suits against the respondent herein and so no prejudice will be suffered by the applicant.
25. The other Interested Parties did not file submissions on the application.
26. I have considered the application herein, the responses thereto and the submissions by the parties. The issue for determination is whether the applicant herein has offered sufficient reasons to warrant this court to exercise its discretion to stay the proceedings and execution in Magistrates Court Civil Case Nos. Kwale E037 of 2025, Kwale E038 of 2025, Kwale E050 of 2025, Kwale E096 of 2025, Kwale E104 of 2025, Kwale E117 of 2025, Kwale E118 of 2025, Kwale E126 of 2025, Kwale E128 of 2025, Kwale E146 of 2025 Mombasa E844 of 2025, Mombasa E845 of 2025 of 2025, and any suit that may arise before the trial courts pending the hearing and determination of the suit filed herein.
27. The requirements for stay of proceedings are different from those of stay of execution. There is guidance on this difference in the case of Kenya Wildlife Service v James Mutembei [2019] KEHC 10478 (KLR) where, while considering a similar application the High Court stated as follows:
“Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. Therefore, the test for stay of proceeding is high and stringent. See Ringera J in the case of Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000 persuasively stated thus;
“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. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously ” (emphasis added)
See also illumination on the threshold for stay of proceedings in the following passages in Halsbury’s Law of England, 4th Edition. Vol. 37 page 330 and 332, that:
“The stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation towards the trial on the basis of the substantive merits of his case, and therefore the court’s general practice is that a stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue.”
“This is a power which, it has been emphasized, ought to be exercised sparingly, and only in exceptional cases.”
“It will be exercised where the proceedings are shown to be frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant for a stay on this ground must show not merely that the plaintiff might not, or probably would not, succeed but that he could not possibly succeed on the basis of the pleading and the facts of the case.”
28. From the above case, this court is supposed to consider the pros and cons of granting the order of stay taking into account the following factors:
a. Whether the applicant has established that he has a prima facie arguable case.
b. Whether the application was filed expeditiously
c. Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought.
29. I am satisfied that the application was filed timeously. There is affidavit evidence that the respondent wrote to the applicant purporting to repudiate the contract of insurance on 19 th November 2025 and this application was filed two months later on 19 th January 2026. Taking into account factors such as correspondences between the parties within the period, the fact that under Order 50 Rule 4 of the Civil Procedure Rules time for filing pleadings does not run and is omitted from any computation of time for the period between the twenty-first day of December in any year and the thirteenth day of January in the year next following, both days included.
30. The other two grounds of whether the applicant has established a prima facie arguable case and sufficient reasons to warrant grant of the orders sought will be considered together.
31. The applicant’s main reasons for seeking stay of proceedings in the primary suits is that the respondent/insurer has allegedly sought to avoid its obligations to indemnify the applicant of any losses or claims under the policy of insurance between the parties thereby exposing the applicant to potential execution of decrees arising from the various suits filed or to be filed arising out of the accident. Concomitantly the respondent has withdrawn instructions from advocates it had appointed to act for the applicant in the matters and therefore the applicant has to appoint his own advocates and meet the costs thereof. The question is whether these are sufficient reasons and whether it is in the interest if justice to grant an order of stay of proceedings in the suits pending before the magistrates’ courts.
32. First, it is worthy to note that the application for stay of proceedings is not in the present case but in cases filed by third parties in what is commonly known as primary suits. The proceedings in the various primary suits that are sought to be stayed are not in the present case. They involve the applicant and third parties who had not even been made parties to the proceedings herein, The court had to come in to have them brought on board as Interested Parties because they were definitely parties affected by any orders issued by this court. The pleadings in those suits are not before this court for it to determine whether they present a prima facie arguable case or not. However, it is patently clear that the applicant has not alleged that the cases are frivolous, vexatious or harassing or to be manifestly groundless or in which there is clearly no cause of action in law or in equity. The applicant has not attempted to show that the plaintiffs in the primary suits are unlikely to succeed on the basis of the pleadings and the facts of the respective cases. The question is, in whose interest will the stay of proceedings be? Obviously for the applicant and the respondent herein but definitely not for the Interested Parties. Consequently, I find that there is no prima facie case established by the applicant to warrant the order sought.
33. Furthermore, the applicant has not demonstrated any threat of execution against him in any of the primary suits capable of being stayed by this court. The suits in the trial courts are still ongoing with none having been concluded. Even the fact that the decisions will be against the applicant can only be speculative and not factual. I find that staying the proceedings at the trial courts will clearly impede the plaintiffs in the primary suits from pursuing their claims for no good reason.
34. I therefore find the application herein to be without merit as the same has not met the threshold for grant of the orders sought. I hereby decline to issue the order for stay of proceedings and stay of execution in Magistrates Courts Nos Kwale. E037 of 2025, Kwale E038 of 2025, Kwale E050 of 2025, Kwale E096 of 2025, Kwale E104 of 2025, Kwale E117 of 2025, Kwale E118 of 2025, Kwale E126 of 2025, Kwale E128 of 2025, Kwale E146 of 2025 Mombasa E844 of 2025, Mombasa E845 of 2025 Of 2025, and any suit that may arise from the accident involving the applicant’s motor vehicle registration number KAH 736G Toyota Pick-up that occurred on 20 th December 2024 along Ukunda-Likoni at Maganyakulo area. The application is dismissed.
35. The applicant shall bear the costs of the application for both the respondent and the Interested Parties who respondent to the application.
36. Orders accordingly.
ANDAYI W. F.
JUDGE
Written, dated and signed and d elivered on the Virtual platform, Microsoft Teams this 9 th day of July 2026.
In the presence of:
Juma (Ms) h/b for Adhoch for Applicant.
Masakhalia (Ms) for the Respondent.
Juma (Ms) for the Interested Parties.
Ananda for the Interested Parties.
Ummu: Court assistant
ANDAYI W. F.
JUDGE
kwale HCCC No. E002/202610/stay of proceedings