Mercy Gakii Njebi v Explico Insurance Company Ltd [2017] KEHC 3132 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL CASE NO. 3 OF 2017

MERCY GAKII NJEBI....................................................PLAINTIFF

VERSUS

EXPLICO INSURANCE COMPANY LTD.............…..….DEFENDANT

R U L I N G

1. This is a ruling on an application dated 22/03/2017 by the plaintiff/applicant seeking for orders for stay pending determination of this suit.  It also seeks for release of motor vehicle registration No. KCB 813 D attached in execution of the decree in CMCC No. 245 of 2015.

2. The interested parties were the plaintiffs in CMCC no. 245 of 2015 in which they obtained judgment for damages against the plaintiff/applicant herein.

3. Upon filing this application, this court gave interim orders on 23/03/2017 for temporary stay pending hearing inter parties.  The interested party filed an application dated 31/03/2017 seeking to have the interim orders set aside.  This court directed that the two applications for stay and  setting aside orders be heard together with the latter serving as a response to the first one.

4. It was agreed that the application be argued by way of written submissions.

5. However, the interested parties application became spent upon the discharge of the interim orders.  The defendant/respondent despite having been served did not file a replying affidavit.

7. This application is therefore unopposed.

8. The applicant relies on the grounds that his motor vehicle registration No. KCB 813 D was insured by the defendant at all material times.  The contract of insurance was that the defendant would indemnify the plaintiff against any loss or injury occasioned to a 3rd party as a result of any accident involving the said vehicle.  When the vehicle was involved in an accident and decree issued in CMCC No. 245 of 2015, the Defendant failed to honour the terms of the contract.

9. The plaintiff has not filed this declaratory suit against the defendant and prays for stay of execution and release of the vehicle pending hearing and determination of the suit.

10. It is not disputed that there was a contract of insurance between the parties in this application and that the defendant failed to settle the decree.  The plaintiff is in the process of enforcing his rights of contract in this suit.

11. I find the application merited and allow the same as prayed.

12. Each party to meet their own costs of this application.

DELIVERED, DATED AND SIGNED AT EMBU THIS 3RD   DAY OF OCTOBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Eddie Njiru for Mugendii for Interested Party.