REPUBLIC OF KENYAIN THE HIGH COURT OF KENYA AT KERICHOHCC CASE NO. E002 OF 2026
PRABJOT SINGH BAMRAH........................................PLAINTIFF/APPLICANTVERSUSOCCIDENTAL INSURANCE COMPANY LIMITED......DEFENDANT/RESPONDENTANDCAESAR BITTA........................................INTERESTED PARTY/RESPONDENT
RULING
1. The Plaintiff/Applicant filed the Notice of Motion dated 9th April 2026 brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 22 rule 22 and Order 42 rule 6 of the Civil Procedure Rules and all enabling provisions of the law.
2. The Applicant seeks, a stay of execution of the judgment and decree in Kericho SCCC No. E009 of 2025, Caesar Bitta v Prabjot Singh Bamrah, including attachment and/or sale by Betabase Auctioneers, pending the hearing and determination of this suit. He further seeks a mandatory injunction compelling the Defendant/Respondent to settle the decretal sum of Kshs. 523,649 together with costs, interest and execution costs, or in the alternative to deposit the decretal sum in an interest earning joint account.
3. The application is supported by the grounds on its face and by the affidavit of the Applicant. The Applicant’s case is that at the time of the accident giving rise to the decree in Kericho SCCC No. E009 of 2025, his motor vehicle was insured by the Defendant. He states that the Defendant was notified of the claim and the suit, and that the Defendant appointed advocates to defend him in the primary suit. Judgment was subsequently entered against him in favour of the Interested Party for Kshs. 523,649 plus costs and interest. The Applicant contends that despite demand, the Defendant has failed to satisfy the decree, thereby exposing him to execution.
4. The Interested Party opposed the motion through the replying affidavit sworn by Godfrey Isolio on 12th May 2026 and through written submissions. The Interested Party contends that the application is frivolous, incompetent, an abuse of the process of the Court and intended to deny him the fruits of his judgment. He also relies on earlier objector proceedings before the Small Claims Court in which one Charan Harjeet Kaur objected to the attachment of certain goods and motor vehicles.
5. The Defendant/Respondent did not file a replying affidavit or submissions in opposition to the motion despite being served with the same .
6. The application was canvassed by way of written submissions which I have considered together with the pleadings, affidavits, annexures and authorities cited.
7. The issues that arise for determination are: whether the present application is barred by the ruling in the objection proceedings; whether the Applicant has made out a case for stay of execution pending determination of this suit; whether a mandatory injunction should issue at this interlocutory stage; and who should bear the costs of the application.
8. On the first issue of Res judicata , the Interested Party submitted that the Applicant had previously moved the Small Claims Court through objection proceedings and should not be heard again. The record shows that the application before the Small Claims Court was filed by Charan Harjeet Kaur as Objector/Applicant. It concerned the attachment of specific movable property and motor vehicles said to be in her premises. The issue before that court was whether the objector had demonstrated a legal or equitable interest in the proclaimed property.
9. The instant application is materially different from that filed in the small claims case . It has been brought by the judgment debtor in the primary suit. It seeks to preserve this declaratory suit against the insurer and to stay execution pending determination of the question whether the insurer is liable to satisfy the decree under the insurance contract and section 10 of the Insurance (Motor Vehicles Third Party Risks) Act.
10. The doctrine of res judicata is anchored in section 7 of the Civil Procedure Act. It bars a court from trying a matter that was directly and substantially in issue in a former suit or proceeding between the same parties, or parties claiming under them, where the issue was heard and finally determined by a court or tribunal of competent jurisdiction. The doctrine serves the public interest in finality, but it applies only to matters actually and substantially determined, or matters which properly ought to have been raised in the earlier proceedings.
11. The parties, the issues and the reliefs in both cases sought are thus are not the same. The ruling in the objector proceedings therefore does not render the present motion res judicata. It is only relevant as part of the execution history between the parties.
12. I now turn to the prayer for stay. Although the motion invokes Order 42 rule 6 of the Civil Procedure Rules, this is not an application for stay pending appeal. It is an application for stay of execution pending determination of a declaratory suit. The Court is therefore guided by its inherent jurisdiction, the overriding objective, and the need to balance the decree-holder’s right to enjoy the fruits of judgment against the Applicant’s right to prosecute a suit which may otherwise be rendered nugatory.
13. Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act imposes a statutory obligation on an insurer, subject to the exceptions set out in that section, to satisfy judgments obtained against persons insured by the policy in respect of liabilities required to be covered under the Act. Whether the Applicant has ultimately proved the statutory and contractual conditions for that relief is a matter for trial.
14. At this interlocutory stage, the Applicant has placed before the Court material suggesting that there was an insurance relationship, that the Defendant was notified of the claim and the primary proceedings, and that the Defendant appointed advocates to defend the primary suit. That material has not been answered by the Defendant.
15. The Interested Party has attacked the Applicant’s conduct and the issue of the motor vehicle registration particulars. Those matters may bear on discretion. However, they do not answer the central question whether the Applicant has an arguable declaratory claim against the insurer.
16. In Andrew Linge Mutua v Geminia Insurance Company Limited; Zipporah Mwende Mutua (Interested Party) [2021] KEHC 2349 (KLR), the Court recognised that although an injured decree-holder is not barred from executing against the insured, some measure of protection may be given to the insured so that the declaratory suit is not rendered merely academic. I am persuaded by that approach.
17. The decree in Kericho SCCC No. E009 of 2025 remains valid. The Interested Party is entitled to the fruits of that decree. However, if execution proceeds immediately and the Applicant’s property is sold before the question of the insurer’s liability is heard, the substratum of this suit may be substantially rendered nugatory. On the other hand, an indefinite stay would unfairly deny the Interested Party from enjoying the fruits of judgment.
18. The appropriate order, in my view, is that for a stay of execution with a rider that the suit be prosecuted expeditiously to avoid causing hardship to the interested party.
19. On the prayer for a mandatory injunction compelling the Defendant to pay the decretal sum or deposit it in a joint account. In the case of Kenya Breweries Ltd & Another vs Washington O. Okeya [2002] eKLR, the Court of Appeal stated as follows on mandatory injunctions; “A mandatory injunction ought not to be granted on an interlocutory application in the absence or special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction, the court had to feel a higher degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”
20. .Also in the case of Shariff Abdi Hassan Vs Nadhif Jama Adan (2006) eKLR where it stated that:“The courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.”
21. A mandatory injunction at the interlocutory stage is granted sparingly and only in clear cases, or where special circumstances exist.
22. The order sought would, in substance, compel the Defendant to satisfy the very relief sought in the main suit before trial. Although the Defendant has not opposed the application, the Court must be cautious not to determine the final rights of the parties on affidavit evidence unless the case is plain and beyond serious contest.
23. The Applicant has shown an arguable case but he has not, at this stage, established such a clear and exceptional case as would justify a final mandatory order compelling payment before the hearing of the suit. That prayer is therefore declined at this stage.
24. In the result, the Notice of Motion dated 9th April 2026 succeeds only in part. I make the following orders:
a. There shall be a stay of execution of the judgment and decree in Kericho SCCC No. E009 of 2025, Caesar Bitta v Prabjot Singh Bamrah, including attachment and/or sale by Betabase Auctioneers, pending hearing and determination of this suit.
b. The stay in paragraph (a) above is granted on condition that the suit is prosecuted within the next 4 months.
c. Mention on 22.10.26 for pre-trial directions.
d. The prayer for a mandatory injunction compelling the Defendant/Respondent to settle or deposit the decretal sum at this interlocutory stage is declined.
e. Costs of the application shall abide the outcome of the main suit.
T. A. ODERAJUDGE
6.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 6 TH DAY OF JULY 2026 IN THE PRESENCE OF :
CA- BUSIENEI
MR KIPINDE -FOR THE PLAINTIFF OFF APPLICANT
N/A - FOR INTERESTED PARTY
N/A RESPONDENT : ABSENT
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PRABJOT SINGH BAMRAH........................................PLAINTIFF/APPLICANTVERSUSOCCIDENTAL INSURANCE COMPANY LIMITED......DEFENDANT/RESPONDENTANDCAESAR BITTA........................................INTERESTED PARTY/RESPONDENT
RULING
1. The Plaintiff/Applicant filed the Notice of Motion dated 9th April 2026 brought under sections 1A, 1B and 3A of the Civil Procedure Act, Order 22 rule 22 and Order 42 rule 6 of the Civil Procedure Rules and all enabling provisions of the law.
2. The Applicant seeks, a stay of execution of the judgment and decree in Kericho SCCC No. E009 of 2025, Caesar Bitta v Prabjot Singh Bamrah, including attachment and/or sale by Betabase Auctioneers, pending the hearing and determination of this suit. He further seeks a mandatory injunction compelling the Defendant/Respondent to settle the decretal sum of Kshs. 523,649 together with costs, interest and execution costs, or in the alternative to deposit the decretal sum in an interest earning joint account.
3. The application is supported by the grounds on its face and by the affidavit of the Applicant. The Applicant’s case is that at the time of the accident giving rise to the decree in Kericho SCCC No. E009 of 2025, his motor vehicle was insured by the Defendant. He states that the Defendant was notified of the claim and the suit, and that the Defendant appointed advocates to defend him in the primary suit. Judgment was subsequently entered against him in favour of the Interested Party for Kshs. 523,649 plus costs and interest. The Applicant contends that despite demand, the Defendant has failed to satisfy the decree, thereby exposing him to execution.
4. The Interested Party opposed the motion through the replying affidavit sworn by Godfrey Isolio on 12th May 2026 and through written submissions. The Interested Party contends that the application is frivolous, incompetent, an abuse of the process of the Court and intended to deny him the fruits of his judgment. He also relies on earlier objector proceedings before the Small Claims Court in which one Charan Harjeet Kaur objected to the attachment of certain goods and motor vehicles.
5. The Defendant/Respondent did not file a replying affidavit or submissions in opposition to the motion despite being served with the same .
6. The application was canvassed by way of written submissions which I have considered together with the pleadings, affidavits, annexures and authorities cited.
7. The issues that arise for determination are: whether the present application is barred by the ruling in the objection proceedings; whether the Applicant has made out a case for stay of execution pending determination of this suit; whether a mandatory injunction should issue at this interlocutory stage; and who should bear the costs of the application.
8. On the first issue of Res judicata , the Interested Party submitted that the Applicant had previously moved the Small Claims Court through objection proceedings and should not be heard again. The record shows that the application before the Small Claims Court was filed by Charan Harjeet Kaur as Objector/Applicant. It concerned the attachment of specific movable property and motor vehicles said to be in her premises. The issue before that court was whether the objector had demonstrated a legal or equitable interest in the proclaimed property.
9. The instant application is materially different from that filed in the small claims case . It has been brought by the judgment debtor in the primary suit. It seeks to preserve this declaratory suit against the insurer and to stay execution pending determination of the question whether the insurer is liable to satisfy the decree under the insurance contract and section 10 of the Insurance (Motor Vehicles Third Party Risks) Act.
10. The doctrine of res judicata is anchored in section 7 of the Civil Procedure Act. It bars a court from trying a matter that was directly and substantially in issue in a former suit or proceeding between the same parties, or parties claiming under them, where the issue was heard and finally determined by a court or tribunal of competent jurisdiction. The doctrine serves the public interest in finality, but it applies only to matters actually and substantially determined, or matters which properly ought to have been raised in the earlier proceedings.
11. The parties, the issues and the reliefs in both cases sought are thus are not the same. The ruling in the objector proceedings therefore does not render the present motion res judicata. It is only relevant as part of the execution history between the parties.
12. I now turn to the prayer for stay. Although the motion invokes Order 42 rule 6 of the Civil Procedure Rules, this is not an application for stay pending appeal. It is an application for stay of execution pending determination of a declaratory suit. The Court is therefore guided by its inherent jurisdiction, the overriding objective, and the need to balance the decree-holder’s right to enjoy the fruits of judgment against the Applicant’s right to prosecute a suit which may otherwise be rendered nugatory.
13. Section 10 of the Insurance (Motor Vehicles Third Party Risks) Act imposes a statutory obligation on an insurer, subject to the exceptions set out in that section, to satisfy judgments obtained against persons insured by the policy in respect of liabilities required to be covered under the Act. Whether the Applicant has ultimately proved the statutory and contractual conditions for that relief is a matter for trial.
14. At this interlocutory stage, the Applicant has placed before the Court material suggesting that there was an insurance relationship, that the Defendant was notified of the claim and the primary proceedings, and that the Defendant appointed advocates to defend the primary suit. That material has not been answered by the Defendant.
15. The Interested Party has attacked the Applicant’s conduct and the issue of the motor vehicle registration particulars. Those matters may bear on discretion. However, they do not answer the central question whether the Applicant has an arguable declaratory claim against the insurer.
16. In Andrew Linge Mutua v Geminia Insurance Company Limited; Zipporah Mwende Mutua (Interested Party) [2021] KEHC 2349 (KLR), the Court recognised that although an injured decree-holder is not barred from executing against the insured, some measure of protection may be given to the insured so that the declaratory suit is not rendered merely academic. I am persuaded by that approach.
17. The decree in Kericho SCCC No. E009 of 2025 remains valid. The Interested Party is entitled to the fruits of that decree. However, if execution proceeds immediately and the Applicant’s property is sold before the question of the insurer’s liability is heard, the substratum of this suit may be substantially rendered nugatory. On the other hand, an indefinite stay would unfairly deny the Interested Party from enjoying the fruits of judgment.
18. The appropriate order, in my view, is that for a stay of execution with a rider that the suit be prosecuted expeditiously to avoid causing hardship to the interested party.
19. On the prayer for a mandatory injunction compelling the Defendant to pay the decretal sum or deposit it in a joint account. In the case of Kenya Breweries Ltd & Another vs Washington O. Okeya [2002] eKLR, the Court of Appeal stated as follows on mandatory injunctions; “A mandatory injunction ought not to be granted on an interlocutory application in the absence or special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction, the court had to feel a higher degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”
20. .Also in the case of Shariff Abdi Hassan Vs Nadhif Jama Adan (2006) eKLR where it stated that:“The courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.”
21. A mandatory injunction at the interlocutory stage is granted sparingly and only in clear cases, or where special circumstances exist.
22. The order sought would, in substance, compel the Defendant to satisfy the very relief sought in the main suit before trial. Although the Defendant has not opposed the application, the Court must be cautious not to determine the final rights of the parties on affidavit evidence unless the case is plain and beyond serious contest.
23. The Applicant has shown an arguable case but he has not, at this stage, established such a clear and exceptional case as would justify a final mandatory order compelling payment before the hearing of the suit. That prayer is therefore declined at this stage.
24. In the result, the Notice of Motion dated 9th April 2026 succeeds only in part. I make the following orders:
a. There shall be a stay of execution of the judgment and decree in Kericho SCCC No. E009 of 2025, Caesar Bitta v Prabjot Singh Bamrah, including attachment and/or sale by Betabase Auctioneers, pending hearing and determination of this suit.
b. The stay in paragraph (a) above is granted on condition that the suit is prosecuted within the next 4 months.
c. Mention on 22.10.26 for pre-trial directions.
d. The prayer for a mandatory injunction compelling the Defendant/Respondent to settle or deposit the decretal sum at this interlocutory stage is declined.
e. Costs of the application shall abide the outcome of the main suit.
T. A. ODERAJUDGE
6.7.26
DATED, SIGNED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 6 TH DAY OF JULY 2026 IN THE PRESENCE OF :
CA- BUSIENEI
MR KIPINDE -FOR THE PLAINTIFF OFF APPLICANT
N/A - FOR INTERESTED PARTY
N/A RESPONDENT : ABSENT
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