Philomena Mutheu Nzyoka ( Suing As Legal Representative Of The Estate Of The Late Timothy Kiema Musango v Transpares Kenya Limited [2015] KEHC 534 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.269 OF 2011

PHILOMENA  MUTHEU NZYOKA

( suing  as legal representative  of the estate of the late

TIMOTHY KIEMA MUSANGO…………………………PLAINTIFF

VERSUS

TRANSPARES KENYA LIMITED ….................DEFENDANT

RULING

This ruling determines two applications. The first is an application dated    26th June 2015 by the plaintiff.  The second application is dated 13th July 2015 by the defendant.

The parties’ advocates agreed to have the two applications heard together and directions were given by this court to that effect on 15th July 2015.  The parties’ advocates canvassed the applications by way of oral submissions on 15th October 2015 and a ruling date set for today.

A brief background  to the  two applications is that this suit  was heard interpartes  by Honorable ( the late) Joyce Khaminwa ( as  she then was) and both  parties advocates  filed written  submissions.  On 17th July 2012  the  learned  judge reserved the matter  for delivery of judgment  on 17th September 2012 but that the said judgment  was not  ready  so it  was rescheduled  for 11th October 2012.  Nothing is recorded for 11th October 2012.  On 11th March 2013 the matter came up before Honourable Waweru J who set it for mention on 12th April 2013.  The matter was further mentioned on 10th May 2013, 30th May 2013, 23th September 2013.

On 5th May 2014  the matter  shifted  to  Ougo J when  the court was  notified  that the insurance Company had been placed  under statutory management and a moratorium of 12 months  given.  The court then directed that the proceedings be typed and the matter be mentioned on 3rd June 2014 for directions.  The defence then filed  an application  dated  20th May 2014  seeking stay of  proceedings  of the suit  until HCC 88/2014  consolidated  with HCC 38/2014 were heard  and determined.  The matter  came up  before me on 17th November  2014  and I  directed  that since  parties had  closed their  cases and the  matter was  pending judgment, only  an application for arresting  the  judgment could be made.  I granted the defendant 14 days within which to file and serve that application.  The defendant  did not  file the  application  until        13th July 2015  after the plaintiff  had filed  hers  dated 26th June 2015  and served  upon the defendant.

The defendant’s application seeks  orders for  enlargement of  time within  which to file   an application for  stay of delivery of judgment  and that the  applicants/defendant’s  application dated  23rd December  2014  filed on  24th  December 2014  be deemed to be duly filed within time given by the court.

On the  other hand, the plaintiff’s  application  dated  26th June 2015  seeks  orders that the court do  proceed  to pronounce judgment  for the suit;  the court  do exonerate  the plaintiff   from existing moratorium proceedings  between  the defendant’s insurer Concord  Insurance  Company Ltd especially in HCC 88/2013 consolidated  with HCC  38/2014  or any  other  proceedings  involving  concord  Insurance Company Ltd  with any other party; upon  pronouncement  of such judgment, the plaintiff  be at liberty to execute  any decree  thereof  directly  against the defendant; that  the court be pleased to issue  any other  order as  it may deem fit.

I will commence with the defendant’s application which seeks to stay judgment and asking for enlargement of time. On enlargement  of time, the  defendant relies  on Order 50 Rule 6  of the Civil Procedure Rules  and contends that due to  an avoidable  circumstances (sic) it  could  not file the application within 14 days as ordered  on 17th November 2014 by the court and that  it only  managed to file the  said  application on 24th December 2014  after expiry  of the said 14 days  and that it is in the interest  of justice that the court does  extend the  time to meet the  ends of justice since the application  has a high chances of success.  In  response thereto, the plaintiff opposed  the application by the defendant  dated 13th July 2015 and swore a replying  affidavit  on 27th July 2015 contending  that the defendant’s application  is an abuse of the court process  and that despite  filing the  application dated 23rd December 2014 , out of the 14 days  given on 17th November 2014, the defendant  never bothered  to secure  any hearing date prompting  the plaintiff to file her  application  dated 26th June 2015, which she served upon the  defendant  for hearing  on 15th July 2015  and on the eve of the said  hearing is  when the  defendant  filed its application seeking for enlargement of time  to enable  it prosecute  its  application dated 23rd  December 2014.   That the court should therefore not exercise its discretion to aid a sleeping litigant whose intention is to frustrate the plaintiff and continue delaying the matter.  Further , that the  moratorium  should not  apply to her. The plaintiff also contended the affidavit  sworn by the advocate for the defendant on 13th July 2015  is fatally defective, incompetent  and bad in law  and it  does not  disclose  or demonstrate  any genuine  valid  or lawful reason  explaining  why the  defendant  did  not comply  with the court order of 17th November  2014  and or why the application dated 23rd December  2014  was not  regularized  and prosecuted.  That the affidavit by the defendant’s advocate is disrespectful to the court and based on mere speculation.

The power to enlarge time is grounded in Order 50 Rule 6 of the Civil Procedure Rules which provides. From the said provision it is clear that the power to enlarge time is available to the court and is discretionary.  That discretion, however, must be exercised judiciously and not capriciously, taking into account all circumstances of the case.  In this case, the defendant  was granted 14 days  from 17th November 2014  within which to file  an application if any for stay of  delivery of judgment pending  the hearing and determination of the HCC 88 of 2013  wherein the defendant’s Insurers statutory  manager had obtained stay of  all proceedings affecting  any of the  claims against  its insured.  The defendant  did file   the application dated 23rd December, 2014 on 24th December 2014 way beyond  the 14 days timeline given by the court.  The application ought to have been lodged by 1st December 2014.  That  notwithstanding, the  defendant upon filing of the said  application  never took any hearing  date  to facilitate  its hearing  and or seeking  for enlargement  of  time.  It  waited  until the plaintiff  herein had vide  an application  dated 26th June 2015  sought  to proceed with this suit and fixed a hearing  date that  on the  eve of that  date for the hearing  of the plaintiff’s  application, the defendant   filed its  own  application seeking  to enlarge  time  within  which the application dated  23rd December 2014  ought to have  been filed; and  therefore  urging the  court to find that the  application  dated 23rd  December 2014 was filed  within the stipulated  time given by  the court  on 17th November 2014.

The question is, why did the defendant not file that application within the 14 days? What are  the reasons  given for  failure to  file the  application within time and  or filing  it on  23rd December 2014 and seeking  leave of  court  to enlarge the time, within reasonable  time instead, it  waited  until  the plaintiff moved the court is  when the defendant was awakened  to file its  application seeking to validate the application dated  23rd December 2014  7 months later.  The defendant in the supporting affidavit deposes that due to an avoidable circumstances (sic).  I presume it meant unavoidable circumstances.  Those  circumstances are not  disclosed  and neither  was there any  attempt in the oral submissions  to explain the reason why there was delay in filing  the application or for  seeking  enlargement  of  time.   In my view, the defendant   does not deserve the exercise of the discretion of  this court  in its favour.  Unexplained  delay which in my view  is inordinate, taking into account  the fact  that it took the plaintiff to file and  serve   her application seeking to proceed  with the  matter herein for the defendant  to wake up on the eve of the  hearing to forestall or scuttle  the  plaintiff’s  application is  unacceptable  and can only  be described as  calculated  to delay  and defeat  justice.  Equity frowns at delay and the same equity which is the mother of justice and fairness only aids the vigilant and not the indolent.  Furthermore, Article 159(2) (b) of the Constitution mandates the courts in exercising   judicial authority to be guided by the principle that justice shall not be delayed.  The deposition by the defendant that  they experienced  difficulties  fixing a hearing date  is fallacious. The order was for filing of an application. The act of taking of a hearing date involves   both parties through invitation.  There is no deposition that the registry refused to give a hearing date  and for that matter I note that the application was not even filed under any certificate of urgency noting that this is a fairly old matter and which was heard and conclude with only judgment delivery pending.

Nonetheless, where there is  delay, but which  is explained , the court  may nonetheless exercise  its discretion in favour of the  offending  party.  But as I have  stated earlier, in this case  the defendant  does not  attempt to give  any reason for  the delay in filing the application within 14 days, or even the failure to fix  a hearing date  for the  application filed  on 24th December  2014 and  or the failure to seek for enlargement  of time  until after the plaintiff  had moved  the court  about 7  months later. In my view, that conduct of the defendant is an overreach  and only intended , I reiterate, to obstruct  the course of justice.  It is for those  reasons that  I proceed and  dismiss the defendant’s application  dated 13th July 2015  with costs  to the plaintiff.  In the same  vein, as the application dated  23rd November 2014  was filed out  of the 14 days  stipulated in the  order of  17th November 2014  without leave of court, I hereby proceed  and strike  it out  with costs to the plaintiff.

I now proceed to determine the plaintiff’s application dated 26th  June 2015  which urges this court to proceed and  pronounce judgment  in this suit wherein the court  heard and concluded  the matter only  pending  judgment; and that this court do exonerate  the plaintiff from the  existing moratorium proceedings  between the defendant’s insurer( Concord  Insurance Company Ltd) especially in HCC  88  of 2013 consolidated with HCC 38/2014  or any other proceedings  involving Concord  Insurance Company Ltd with any other party.  In opposition thereto, the defendant  filed replying affidavit sworn by Irene W. Kariuki contending that their motor vehicle registration No. KAE 906 N/ZB 5543 which the deceased was driving at the time of his death following  a road accident  was insured by Concord  Insurance Company Ltd which is  under statutory management.  She annexed copy of insurance policy together  with the renewal.  She also  annexed  copies of  the moratorium  and as extended and Gazette notice placing the said insurance company under  statutory  management  and that it is  fair and just that the suit  herein be stayed pending  determination of proceedings in HCC No. 88/2013  as consolidated  with HCC 38 of 2014.  The defendant  also contended that the plaintiff’s  application is misplaced  as this is  not the right forum  for this kind  of application.  That the applicant/plaintiff should have  appealed  against  the orders  in the right court.

Further, that unless the court stays judgment, it will lead the  defendant to pay the services  that the defendant  company  is already insured against.  The plaintiff on the other hand  maintained that she should  be exonerated from being affected by the moratorium  as she  had been greatly prejudiced by the moratorium proceedings  and that as  at the time  of hearing   the application, there was  no evidence  that the moratorium had been extended from when  it was last declared  as extended  up to August  2015  according to the public  notification dated              6th February 2015 by the statutory   manager(IWK 5).

To determine  whether  or not  to grant the orders sought in the  plaintiff’s notice of motion, I must  first examine the contents  of the order  on the moratorium issued on 6th February  2015  by Honourable Gikonyo J which is framed  in the following manner:

“…………IT IS HEREBY ORDERED:

That  application be  and is hereby certified urgent.

That the tenure of the statutory manager of Concord Insurance  Company Ltd, as well as he moratorium be and is hereby extended  for a further  6 (six) months  from the 6th February 2015.

That the matter shall be mentioned  on 8th April 2015  for further  directions  and to ascertain  progress made in the  enforcement  of the  recommendation by the statutory  manager.

That there be a stay of  all  proceedings  subsisting against  Concord  Insurance  Company  Ltd (under statutory management) during the currency of moratorium declared by the  statutory manager on 6th February  2013  and as further  extended by  the statutory  manager, for a further  period of  six months  from the 6th February 2015, be and is hereby granted.

That there be a stay of all taxation  proceedings  currently pending  and ongoing Concord Insurance  Company Ltd(under statutory management ) and  its policy holders and for which the  company or its  policy holders  may become  liable during  currency  of the  moratorium declared  by the statutory   manager on 6th February  2013 and  as further extended, for a further period of  six months  from the six months  from the 6th February 2015 be and is  hereby granted.

That all proceedings  of whatever  nature or  form against  Concord  Insurance Company Ltd ( under statutory management be and is  hereby barred during the  currency  of the moratorium declared by the  statutory manager.

That no statutory notices, demands or claims of whatever nature of form shall  be effective  against Concord  Insurance  Company Ltd  (under statutory management ) or its  property during the currency of the moratorium.

That the running  time for the  purposes  of any law  of limitation  in respect  of any notice, demand  or claim by policy holders or creditors of Concord Insurance  Company Ltd ( under statutory management) be and  is hereby suspended  and shall remain  suspended  during the currency of the  moratorium declared  by the statutory  manager.

That  all current, existing  and or pending  suit in the High Court , subordinate  courts  and any other judicial or quasi  judicial  tribunal against  Concord Insurance Company Ltd  (under statutory  management) and its  policy holders be and is hereby stayed  for as  long as  the moratorium declared  by the statutory  manager  exists.

That the  applicant, being  the statutory  manager be given  leave to publicize  the court’s orders  by publishing  them in the Kenya Gazette and two local daily newspaper of national circulation.

Issued  at Nairobi this 6th day of  February 2015.

Deputy Registrar

High Court of Kenya at Nairobi

Milimani Commercial & Admiralty Division.”

From the  above order, and  more specifically, Order No. 9, it is clear that  the High Court in the  said matters  as consolidated, did  stay  all current, existing and or pending  suits against  not only the Concord Insurance  Company under statutory management, but  also its  policy holders, for as long as the  moratorium  declared by the statutory  manager  exists.

That being  the case, it would not be  necessary for the defendant  herein  to seek any  other orders of  stay in this matter since orders  in the HCC 88/2013 were issued by the High Court  Judge of concurrent  jurisdiction  with this  court.   It would, in my  view, be sufficient  for the defendant  to avail  to  this court evidence of such stay order in the form of a certified order or even applying to have the subject file brought before me for perusal and secondly, evidence  that the  said orders  are  current.  In other words, that there exists a current moratorium declared by the statutory manager.

And  for the plaintiff  who has  a pending  suit against  the policy holder, the correct  forum  for challenging  such order  is to file an appropriate application in the said  suit wherein the application or stay  orders were made  staying  all suits  pending  against  the policy  holders, and  not to file an application  in this suit  seeking  exoneration from application of the moratorium.  To seek orders  in this suit is  tantamount  to  appealing against or or reviewing  orders  made by  the learned  judge  in HCC 88/2013 through this suit which is  not permissible.  The plaintiff  can still  apply in HCC 88/2013 to challenge  the  order No. 9  thereof  or any part  thereof  by way of  review and provide  reasons  and that court (judge) would  have the competence  to consider  the said  application.  I have perused  a similar order made in the said HCC HCC 88/2013  and   I have  seen an application  made by an  affected party  Stephen  Muriuki  Maina & Majaliwa  Mengo Fredrick (interested parties) and Honourable  Gikonyo J did make a  finding on 12th May 2014  exonerating  that  affected party from the applicability of the  moratorium, after considering the spirit  and import  of Section 67 ( c ) (10) of the  Insurance Act.

I would , therefore, for the reasons  that this court cannot  review  orders made  by another  judge  in another  matter, decline to grant the  orders sought.

I would  also go further to establish  whether as at  the time  of urging  this application, there  was any current   moratorium declared  against the  Concord Insurance  Company Ltd.  As stated earlier, the  stay of proceedings  or action in  any matter affecting  the Insurance Company or its policy holders would  only be valid  if there was a moratorium (current).  In this case, the defendant did not annex any current moratorium. However, this court took the  liberty  to peruse HCC 383/2015 (OS) which was  at arm’s  length, in order to avoid a situation  where it would make orders  in vain and my perusal of  the said court  file revealed  that on 6th August  2015  Hon Ogola J did make an order that:

The period of statutory management of Concord Insurance Company Ltd which had been placed under statutory management be and is hereby extended for 45 days.

That the matter will be heard on 21st September 2015 for a consideration of the application in merits.

In that  application wherein the above  orders  were made, the court had been  urged to extend  the stay of the moratorium  issued on  6th February 2013  for another  6 months   from 6th August  2015, which are the same orders as those made in HCC 88/2013 on 6th February, 2015. There is no reason why the same party should open different files seeking for the same orders but that is for another day.

There is  no other evidence  showing  that there  are orders  staying   these  proceedings or that  a moratorium as extended  in HCC 383/2015 for 45  days on 6th August  2015  was extended  for any other period after the expiry of the 45 days.  That  being the  case, this court  does not  find any reason why  it cannot  proceed  to  write  and deliver   a judgment  pending  in this suit  and any aggrieved  party thereof  shall  have the liberty  to either  appeal or  seek for  stay   of execution of the judgment  or decree  pending  other  proceedings as the case may be, having regard  to the provisions  of Section 67( c) (o) of the Insurance Act.

In the end, I find that  there  is no order  staying these  proceedings  from being  concluded and I accordingly   order that  the court shall proceed  to write   and deliver  a judgment  in this matter  which was heard  by Honourable  Justice Joyce Khaminwa (RIP) to conclusion.

The registry to give parties a date for mention in the new term before a judge for purposes of fixing a date for judgment.

I make no orders as to costs of the plaintiff’s application.

Dated, signed and delivered d in open court at Nairobi this 23rd day of November 2015.

R.E. ABURILI

JUDGE