[2019] KEELRC 1674 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CASE NO. 357 OF 2014

(Before Hon. Justice Mathews N. Nduma)

CAROLLY ONYANGO.......................................1ST CLAIMANT

ALBERT ISAGI...................................................2ND CLAIMANT

ELIUD MOKWERI.............................................3RD CLAIMANT

DENIS KINUA MWANGI..................................4TH CLAIMANT

CAREEN N. SIMIYU.........................................5TH CLAIMANT

OLIVER IYAYA SIMWELO.............................6TH CLAIMANT

DAIS OMUSOLO...............................................7TH CLAIMANT

KENNETH BOLO..............................................8TH CLAIMANT

WYCLIFFE M. MORARI.................................9TH CLAIMANT

CHRISTINE CHEMUK...................................10TH CLAIMANT

ALPHOSE OSSORETH..................................11TH CLAIMANT

AMBROSE KOSGEY......................................12TH CLAIMANT

BEN ODONDI OMONDI................................13TH CLAIMANT

RAY ODUOR....................................................14TH CLAIMANT

RISPER JEPKOECH MASSAI......................15TH CLAIMANT

OPAR BENARD ODHIAMBO.......................16TH CLAIMANT

ERICK ODHIAMBO OMUNDI....................17TH CLAIMANT

ERICK OCHIENG OMOLO.........................18TH CLAIMANT

FRED OMBUI..................................................19TH CLAIMANT

STEPHEN OMUGU.......................................20TH CLAIMANT

EDWARD NYAKINYA...................................21ST CLAIMANT

PHILIP JAMES MWANGALE....................22ND CLAIMANT

EZEKIAH OMUONO....................................23RD CLAIMANT

GEORGE OSANO.........................................24TH CLAIMANT

JOSELINE MUYANGU................................25TH CLAIMANT

FRED ASHIBONDO.....................................26TH CLAIMANT

GEORGE WANJALA...................................27TH CLAIMANT

PAUL WAKOLI.............................................28TH CLAIMANT

EVERLINE OMOLO....................................29TH CLAIMANT

IMELLIA ACHIENG...................................30TH CLAIMANT

VERSUS

JIANGXI ZHONGMEI ENGINEERING CONSTRUCTION

COMPANY LIMITED......................................RESPONDENT

RULING

1. The court delivered a judgment on 5th July 2018 in which an order was made.

“The Respondent is directed to compute and pay the claimants all leave due from date of recruitment to the date of either leaving employment or to date of filing suit being December 2014. ”

2. It is the Applicant’s case that execution has commenced before the applicant has complied with the said order in working out the computation. Instead the claimants/respondents did their own computation without involving the applicant, went ahead to extract a decree without causing the same to be extracted in line with the law and have purported to execute the same by way of attachment and Sale of the Applicant’s movable property.

3. The decree was not drawn and extracted in line with Order 21 Rule 8 of Civil Procedure Rulesand did not originate from the dictates of the judgment. That the same be set aside and claimant/respondent be directed to comply with the law.

4. The claimants/respondents filed a replying affidavit sworn by Robert Kundu an advocate of High Court of Kenya in conduct of this matter.

5. The Advocate deposes that the judgment was delivered on 10th May 2018. That the entire claim in this matter was dismissed by the court with each party to bear their own costs.

6. That the claimants/respondents having not instructed Dominion Auctioneers to execute anything in respect of this file and judgment there being nothing to execute.

7. That interim orders were obtained by the Applicants without full disclosure to the court since no decree or certificate of costs in the court file was issued for execution.

8. That prayer No. 7 of the Application was not granted hence no bar for the Dominion Auctioneers to execute the decree in other related files.

9. That in those files, the Applicant wrote to the Respondents to compute the judgement but they failed and used the computation by the Applicant.

10. Therefore there is nothing to be stayed in this file, the suit having been dismissed with each party to bear their own costs.

Determination

11. In the suit Civil Suit No. 375 of 2014, judgment of court dismissed the entire claim with each party to bear their own costs of the suit. There was nothing to compute in respect of the matter.

12. The court finds no decree was drawn nor attachment done in respect of the case.

13. There is no compelling reason why orders sought in this matter ought to apply to other causes being Kisumu ELRC Cause Numbers 2, 3, 15, 112, 113 and 144 of 2015 between other claimants and the applicant.

14. This application lacks merit and is dismissed with costs to the Respondents.

Ruling Dated, Signed and delivered this 2nd day of May, 2019

Mathews N. Nduma

Judge

Appearances

Mr. Kundu for the claimants

Mr. Onsongo for the Respondent

Chrispo – Court Clerk