Paul Koech & 12 others v Pure Circle

d) THAT it is the respondents obligation to repay the loans that the applicant guaranteed them to borrow as a result of employer employee relationship. e) THAT some and/or most of the respondents were actually paid their dues but concealed and/or failed disclose the material fact hence will end up benefitting unfairly to the applicant’s detriment. f) THAT the Respondents are at liberty and may proceed to execute the Consent Order recorded in court by counsel for the parties on 11th August 2016 at any time. g) THAT in the premises it is only fair and just that there be stay of execution of the Consent Order recorded in court by counsel of the parties on 11th August, 2016 and the honourable court be pleased to freeze disbursement of funds stated in the said consent order to the respondents and/or their counsel pending the inter-parties hearing and determination of the instant application. The respondents oppose the application on grounds inter alia that this court’s orders of 11th August, 2016 were issued after hearing the applicant’s application dated 28th July, 2016 inter partes. These are not consent orders as alluded by the applicant herein, or at all. Again, this application is overtaken by events in that after hearing the claimant’s/applicant’s application dated 27th July, 2016, seeking release of the sum deposited in court was granted, these monies were thereon released and remitted to the claimants as awarded. The claimant/respondent further aver that any issues arising out of a loan or loans with Ndege Chai Sacco Limited are utterly foreign and were not raised at trial and therefore cannot be brought in this late in the day. The applicant in her written submission in support of the application for stay of execution of the orders of court cite and answers the prerequisites for an application for stay as follows; a) Whether substantial loss may result to the applicant unless the order is made. b) Whether the application was filed expeditiously, and c) Whether the applicant has established sufficient cause to the satisfaction of the court that it is in the interest of justice to grant the orders sought. She advances a positive approach to these issues and therefore enters a case for award of the application. The claimant/respondent faults the application as a delay tactic intended to frustrate the claimants from enjoying the fruits of judgement. It is their further submission that issues involving co-operative disputes have their own and different resolution mechanism and not as is employed by the respondent/ applicant. This application faults for the claimant/respondent. It would appear that it is grounded on the false premise of the orders complained of were in the first place consent orders. This is denied by the claimant/respondent. Again, as is submitted by the claimant/respondent, the issues raised have been overtaken by events. This is because the monies intended to be retained by the orders sought have been released and disbursed to the claimants. Any court orders at this moment would be in vain and an exercise in futility. I am therefore inclined to dismiss the claim with costs to the claimants/respondents. Delivered, dated and signed this 4th day of December, 2017. D.K.Njagi Marete JUDGE

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Appearances 1. Mr. Situma instructed by Mukite Musangi & Company Advocates for the respondent/applicant. 2. Mr. Maganga holding brief for Nyabena instructed by Nyabena Nyakundi & Company Advocates for the claimant/respondent.

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