Mwaniki v Xplico Insurance Company Ltd; David & 2 others (Interested Parties) [2022] KEHC 3311 (KLR)

Mwaniki v Xplico Insurance Company Ltd; David & 2 others (Interested Parties) (Civil Miscellaneous Application E001 of 2021) [2022] KEHC 3311 (KLR) (7 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3311 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Miscellaneous Application E001 of 2021

GMA Dulu, J

July 7, 2022

Between

David Makali Mwaniki

Applicant

and

Xplico Insurance Company Ltd

Respondent

and

Boniface Muia David

Interested Party

Stephen Mbondo Munuve

Interested Party

Leaky Musya Mwanzia

Interested Party

Ruling

1. Before me is an application by way of Notice of Motion dated January 13, 2021 brought by the plaintiff under section 1A, 1B, and 3A of the Civil Procedure Act (cap.21), and Order 10 Rule 11 and Order 51 Rule 1 of theCivil Procedure Rules 2010. The plaintiff/applicant seeks a number of orders, some of whose prayers have been spent as follows –1)spent2)spent3)That pending the hearing and determination of this suit, this court be pleased to order stay of execution of the decree issued by the Principal Magistrate’s court at Kilungu in the following suits to wit –a)Kilungu PMCC No 209 of 2018 Boniface Muia David v David Makali Mwaniki & others.b)Kilungu PMCC No 2011 of 2018 Stephen Mbondo Munuve v David Makali Mwaniki & 2 others, andc)Kilungu PMCC No 212 of 2018; Leaky Muasya Mwanzia v David Makali Mwaniki & 2 others.4)That the costs of the application be in the cause.

2. The application has grounds on the face of the Notice of Motion, that the plaintiff/applicant is the owner of matatu registration number KCA150B with a valid insurance policy as at 10/10/2017, on which date it was involved in an accident at Mlima Kiu along Nairobi-Mombasa road, and that the interested parties herein were injured and the plaintiff reported the accident to the defendant who appointed advocates to represent the plaintiff in the suits, and that judgment was entered against the plaintiff for a total of Kshs.552,500/=, and that the defendant failed to pay the court award and the interested parties had now obtained warrants of execution against the plaintiff’s property.

3. The application was filed with a supporting affidavit sworn by the plaintiff on January 13, 2021, which amplifies the grounds of the application.

4. Though the application was served, no response has been filed.

5. Again though this court directed that parties file written submissions to the application, only the applicant’s counsel M/s Eboso & company filed written submissions.

6. Having considered the application, and same not being opposed, this court finds no reason to decline the same. I thus allow the application and grant prayer 3 and 4. Orders accordingly.

DELIVERED, SIGNED & DATED THIS 7TH DAY OF JULY, 2022, VIRTUALLY AT MAKUENI COURT...................................GEORGE DULUJUDGE