Fidelity Shield Insurance Company Limited & 2 others (Both sued as representatives of the Estate of RM and also as next friend of FM (Minor)) v Ngonyo [2022] KEHC 13951 (KLR)

Fidelity Shield Insurance Company Limited & 2 others (Both sued as representatives of the Estate of RM and also as next friend of FM (Minor)) v Ngonyo (Civil Appeal E085 of 2021) [2022] KEHC 13951 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13951 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E085 of 2021

GMA Dulu, J

October 12, 2022

Between

Fidelity Shield Insurance Company Limited

1st Applicant

PMM

2nd Applicant

JMM

3rd Applicant

Both sued as representatives of the Estate of RM and also as next friend of FM (Minor)

and

Cyrus Mutua Ngonyo

Respondent

Ruling

1. Before me is an application by way of Notice of Motion dated November 29, 2021 brought under Order 42 Rule 6, Order 51 Rule 3 and 15 of the Civil Procedure Rules.

2. The application has several prayers some of which have been spent as follows-1. (Spent)2. (Spent)3. (Spent)4. That there be a stay of execution of proceedings and implementation of the orders/ruling made on18/11/2021 in Kilungu CMCC E249 OF 2021 Cyrus Mutua Ngonyo vs Fidelity Shield Insurance Co Ltd, PMM and JMM (both sued as personal representatives of the Estate of RM and also next of friend of FM (minor) herein pending and determination of the appeal.5. That the costs of the application be awarded to the appellant.

3. The application has grounds on the face of the Notice of Motion and was filed with a supporting affidavit sworn by Sammy Kamau Wanjiku the Claims Manager of Fidelity Shield Insurance Co Ltd, in which it was deponed that the company had not received the court orders in Kilungu CMCC 235/2019 and 236/2019 and that there was no judgment against the company in both cases, as well as in Kilungu SRM 271/2021.

4. It was also deponed that Kilungu CMCC E249/2021, and SRM 271/2021 were being prematurely pursued and that the dispute herein was subject to Makueni HCCA No 75 of 2021, which had not been determined.

5. It was deponded thus that the stay orders sought be granted in Kilungu CMCC No E429 of 2021, until the appeal is heard and determined.

6. The application was opposed through a replying affidavit sworn on December 16, 2021 by Cyrus Mutua Ngonyo the respondent, in which it was deponed that on November 18, 2021, there was a scheduled hearing and the appellant’s counsel failed to appear in court though served.

7. It was further deponed that, the primary suits herein were SRMCC No 235 of 2019, and SRMCC 236 of 2019, as well as the declaratory suit No 271 of 2019 at Kilungu, all of which had been determined in the respondent’s favour. Thus, according to the respondent, the applicant/appellant was obligated to satisfy the decrees resulting from the said suits.

8. It is to be noted that, though parties were given a chance to file written submissions to the application herein, only the respondent’s counsel Mutunga & Muindi filed written submissions. The applicant/appellant’s counsel did not file any written submissions.

9. This being an application for stay of execution and stay of proceedings, it is governed by the provisions of Order 42 Rule 6 of the Civil Procedure Rules.

10. An applicant has to demonstrate that he will suffer substantial loss if the stay orders are not made. An applicant has also to show willingness to provide security.

11. The applicants/appellants herein has not disclosed what substantial loss it will suffer if stay orders are not granted. Thus the application is for dismissal. More importantly, they have not pursued the prosecution of the application, as though on January 31, 2021. Mr Kioko for the applicant informed court that they wanted to file a further affidavit and submissions, they did not do so. As things are, it is as if they have abandoned the application. On that account also, the application stands for nothing and has to be dismissed.

12. In addition to the above, the applicants have not shown any intention to offer security for grant of stay of execution orders. They have also not explained the reasons for that reluctance. In my view, on that account also the application is for dismissal.

13. Consequently and for the above reasons, I dismiss the application with costs to the respondent.

DELIVERED, SIGNED & DATED THIS 12TH DAY OF OCTOBER, 2022, VIRTUALLY AT MAKUENI.………………………………….George DuluJudgeMs. Oginda for Pius Muteti 2nd applicant present.No appearance for other parties.