https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2351

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI** **ELRC NO. 2119 OF 2014** **JOSEPH MUTUA MUANGE AND DENNIS MUTISYA MUSOMBA & 402 OTHERS…………………………………………………..….APPLICANTS** **KENYA CHEMICAL AND ALLIED WORKERS UNION…………………………………………………...…………CLAIMANT** **JULIET CHEPCHUMBA TUWOT & 227 OTHERS…….……GRIEVANTS** **JOSEPH KARITHI MITHIKA & 209 OTHERS…………...….GRIEVANTS** **DANIEL LAU KITUMBO & 141 OTHERS………………...….GRIEVANTS** **ENOCK ODIRA & 30 OTHERS…………………..…………….GRIEVANTS** **ROSEMARY W MBUTHIAT/A MBUSERA AUCTIONEERS.........................................................................AUCTIONEERS** **KEN KAROGA T/A FIRST CHOICE AUCTIONEERS….AUCTIONEERS** **SANKARA AUCTIONEERS……………...…………………AUCTIONEERS** **VERSUS** **EAST AFRICAN PORTLAND CEMENT PLC…….……….RESPONDENT** **RULING** **Background** 1. The Applicants have filed the instant application seeking the following orders:- 2. THAT leave be granted to the firm of M/S Alakonya & Associates Advocates LLP to come on record for the Judgment Creditors/Applicants herein in place of the Law Firms of Gichuki King’ara & Co. Advocates, Nyabena Nyakundi & Co. Advocates and D.K Muema & Company Advocates respectively, subsequent to the delivery of judgment and pursuant to Order 9 rule 9(a) of *the Civil Procedure Rules*, 2010. 3. THAT pending inter-partes hearing and determination of the application, the court be pleased to stay all pending applications and any steps taken in furtherance thereof, including the Garnishee Order Nisi dated 16th April 2026 and all attachment proceedings. 4. THAT pending inter-partes hearing and determination of the application, the court stays execution of the decree dated 6th July 2015 pending reconciliation of the debt due and owing, taking into account the Applicants’ admission of settlement. 5. THAT an order do issue setting aside the Notice of Motion Application dated 13th April 2026 and the Order issued on 16th April 2026 for having been obtained and or procured on account of non-disclosure of material facts. 6. THAT the court be pleased to grant such further or other reliefs as it may deem just and equitable in the circumstances. 7. That the costs of the application be provided for. 8. The application is anchored on the grounds appearing on the face thereof and the joint affidavit of Joseph Mutua Muange and Dennis Mutisya Musomba. The affiants aver that they, together with over 690 others, are beneficiaries of the decree in the suit. 9. The affiants aver that they have the authority of 402 other beneficiaries to move the court for the orders sought in the application. They have annexed the lists of the individuals whom they aver have authorized them to move the court. 10. The affiants contend that they and the other beneficiaries they allegedly represent have all agreed to engage the services of the Law Firm of Alakonya & Associates Advocates LLP in place of the Law Firms of Gichuki King’ara & Co. Advocates, Nyabena Nyakundi & Co. Advocates and D.K Muema & Company Advocates who have previously been on record for them. As such, they seek leave of the court to allow this change in representation. 11. The affiants aver that the individual entitlements of the beneficiaries on whose behalf the application has been filed have been settled. They aver that the settlement was done in kind by way of allocation of land pursuant to an agreement reached in 2023 and by way of cash transfers by the Judgment Debtor into their respective accounts. 12. The affiants aver that the beneficiaries have not authorized any of the advocates on record for them or auctioneers to take out execution proceedings against the Judgment Debtor vide the application dated 16th April 2026 and warrants of attachment dated 13th April 2026. As such, they aver that the execution proceedings are without the consent and authority of the various beneficiaries mentioned in the application. 13. The affiants aver that their advocates did not disclose to the court that at the time of filing the Garnishee application, most of the beneficiaries of the decree had been fully settled. They contends that the disclosure was necessary in order to assist the court to determine any balance of the judgment sum. 14. The affiants aver that because most beneficiaries of the decree have been settled, to allow the execution process to be carried out in their name will result in double payment. They aver that this will result in unjust enrichment. 15. The affiants assert that the execution process is likely to jeopardize finalization of the settlement of the decree between them and the Judgment Debtor. They contend that the process may result in the Judgment Debtor declining to finalize transfer of the pieces of land it has allocated them in settlement of the decree yet most of them have already developed the pieces. 16. The Judgement Debtor (JD) supports the application. It has filed an affidavit sworn by one Roselyne Ominde to that effect. The JD avers that the position expressed by the Applicants in the application under consideration that most of the beneficiaries of the decree have been fully settled is correct. 17. The JD contends that the Applicants and those they allegedly represent are entitled to legal representation by an advocate of their choice. As such, it avers that it does not object to their request for leave to engage M/S Alakonya & Associates Advocates LLP. 18. The JD contends that since several beneficiaries of the decree admit that they have been paid their dues under the decree, the court should allow the Applicants’ request to suspend execution to enable reconciliation of the amounts paid against what is outstanding. It contends that this is necessary to protect the interests of both the Judgement Creditor and the Judgement Debtor as was ordered by Justice Nduma Nderi in his ruling of 19th December 2024. 19. The JD avers that since the Applicants admit that the decree has been substantially settled, it is only just and fair that an order for stay of execution issues to allow the parties room to reconcile accounts with a view to determining what has been paid and what remains outstanding. The JD contends that this will obviate the current state of affairs where there are multiple execution processes being undertaken. 20. The JD asserts that although a substantial portion of the decree has allegedly been settled, it (the JD) has been unable to settle what remains of it (the decree) because of disagreements between the beneficiaries of the decree and their representatives regarding distribution of the decretal sums. It contends that these disagreements have frustrated finalization of the matter. 21. The JD avers that multiple execution proceedings have been commenced separately by various beneficiaries under the decree resulting in confusion. It avers that following the execution processes, several movable assets belonging to it have been attached. It further avers that the beneficiaries have also taken out Garnishee proceedings against its bank accounts resulting in attachment of approximately Ksh. 110,069,075.69 in the accounts. 22. The JD says that the entitlements of approximately 90% of the beneficiaries have been settled through allocation of land which the beneficiaries have taken possession of. It avers that it has allocated approximately 693 beneficiaries pieces of land to settle their dues. 23. The JD contends that taking the foresaid into account, it is unjust for the Decree Holder to pursue the current Garnishee proceedings in an attempt to recover Ksh. 6,415,280,349.68. Thus, it prays that the court allows the Applicants’ request for stay of execution pending taking of accounts. 24. The application is opposed by the Decree Holder (DH). It is also opposed by the other beneficiaries of the decree. 25. The DH contends that the Applicants have not obtained leave of the court to be standalone parties in the action. As such, it contends that they have no *locus standi* to apply for the orders they seek in the application. 26. The DH avers that the Law Firm of Alakonya & Associates Advocates LLP has never written to it (the DH) to intimate that it has instructions to come on record on behalf of some of the beneficiaries. The DH contends that most of the beneficiaries whose names have been included in the lists attached to the application have denied having instructed the aforesaid Law Firm to come on record for them. 27. The DH avers that the instant application has been filed at the behest of the JD in a bid to cause confusion in the matter. It denies that the application has the blessings of any of its members. 28. The DH avers that owing to the peculiar nature of this case, the court had directed that any beneficiary who wishes to change advocates should do so in person before the Deputy Registrar of the court. It avers that this was to avoid the perennial forgery of its members’ signatures. 29. The DH avers that the court has previously declined to revisit the issue of stay of execution emphasizing that the execution proceedings ought to be finalized. It further avers that the court directed that the decretal sum may be recovered from any property of the JD. 30. The DH avers that some of the individuals who are mentioned in the application under consideration have disowned it. At the same time, it contends that other individuals are deceased. As such, it avers that the application is based on suspect instructions and should be declined. 31. The DH avers that the JD has made several unsuccessful attempts to stall the execution process. It further contends that the court put a stop to these attempts and directed that execution be finalized. 32. The DH avers that the JD was granted conditional stay of execution by the Court of Appeal but did not satisfy the conditions therefor. As such, it avers that this court should not entertain any further requests of similar kind as they are merely intended to create confusion. 33. The DH avers that if some of the beneficiaries contend that their entitlements under the decree have been paid, they should stay away from the proceedings instead of being used to stall the execution process to the detriment of those yet to be paid. It further contests the JD’s averment that some beneficiaries have been paid in kind contending that the court stopped the process of the impugned land allocation. 34. Juliet Chepchumba Tuwot, representing some of the beneficiaries, contends that the issue of representation of parties at the post judgment stage in the cause was settled by the court in the ruling dated 7th July 2023. She contends that the court directed that any beneficiary who wishes to change advocates is to first provide evidence of settlement of legal fees for the advocates previously on record for him/her. She asserts that the Applicants and the beneficiaries they allegedly represent have not complied with this requirement. As such, she avers that the request for leave to hire the Firm of Alakonya & Associates Advocates LLP in place of the advocates currently on record for the Applicants should be declined. 35. Juliet Chepchumba Tuwot further avers that Justice Nduma Nderi directed in his ruling of 19th December 2025 that any settlement in kind between the parties should be reduced into a consent to be adopted by the court. She avers that the Applicants and those they allege to represent have not exhibited such consent to support their assertion that the decree has been satisfied in kind. Nevertheless, she avers that if the Applicants and those they represent have been settled, they should exit the proceedings instead of attempting to scuttle the execution process. 36. Juliet Chepchumba Tuwot contends that none of the attached property belongs to the Applicants and or those they allege to represent. As such and in her view, the Applicants are mere busy bodies litigating on behalf of and for the benefit of the Judgment Debtor in a bid to scuttle the execution process. 37. Juliet Chepchumba Tuwot further contends that the Applicants and those they allege to represent have not attached valuation reports to the application to demonstrate that the parcels of land which were allocated to some of the beneficiaries have settled the decretal sum. As such, she prays that the application be dismissed. 38. On their part, the 3rd group of beneficiaries represented by M/S Gichuki King’ara & Co Advocates filed a Notice of Preliminary Objection, replying and supplementary affidavits to anchor their resistance to the motion. They contend that the question of stay of execution, having been the subject of several applications before both this court and the Court of Appeal, is now a closed matter. As such, they aver that the court is now *functus officio* on the issue. 39. They aver that the Applicants are strangers to the proceedings and have no *locus standi* to apply for stay of execution. As such, they aver that the court lacks jurisdiction to entertain the application. 40. The 3rd group of beneficiaries aver that the court entered judgment in the cause for Ksh. 1.4 billion and that an appeal against the decision was dismissed. They contend that the Respondent has since attempted to avoid enforcement of the decree by: seeking stay of execution; deploying police and goons to block the execution process; and coercing some of the beneficiaries to accept settlements which are less than what they are entitled to under the decree. 41. The 3rd group of beneficiaries aver that the orders sought in the motion are meant to cause confusion in the execution process. They contend that the Judgment Debtor has failed to comply with earlier conditions for stay of execution of the decree and has also failed to live up to the terms of the consent order which was meant to settle the matter. 42. The 3rd group of beneficiaries aver that the Applicants, being co-decree holders, are not entitled to stall the execution process. As such, they contend that they (the Applicants) are working at the behest of the Judgment Debtor. 43. The 3rd group of beneficiaries contend that the instant application is anchored on forged documents. They contend that majority of the persons listed as beneficiaries in the application are unaware of it. Some of the beneficiaries whose names are included in the application under consideration have filed affidavits to deny that they gave instructions to the Applicants to mount the application. 44. The 3rd group of beneficiaries contend that several other applications seeking stay of execution have been declined by the court. They aver that any beneficiary who claims to have been paid should enter a consent confirming this fact and exit the proceedings. 45. The 3rd group of beneficiaries contend that it is not necessary to take accounts at this stage since the entitlement of every beneficiary to the decree is known. They contend that some beneficiaries have rejected the Judgment Debtor’s offer to pay them less than what they are entitled to under the decree. 46. The 3rd group of beneficiaries further aver that nine of the individuals in the list of purported beneficiaries in the application under consideration are not beneficiaries under the decree. They contend that these persons purport to represent beneficiaries who are either deceased or incapacitated without demonstrating that they have been granted the requisite authority in law to do so. **Analysis** 1. After evaluating the application dated 10th July 2026 and the responses thereto, the following issues arise for consideration:- 2. Whether the Law Firm of Alakonya & Associates Advocates LLP should be granted leave to come on record for the Applicants. 3. Whether the court should stay execution of the decree herein on the ground that most of the beneficiaries of the decree have been settled. 4. The two issues will be considered separately in the following section of the decision. Whilst evaluating them (the issues), the court will take into account the submissions filed by the various actors in the cause. **Whether the Firm of Alakonya & Associates Advocates LLP should be granted leave to come on record for the Applicants** 1. The affiants to the affidavit in support of the application seeking leave to onboard the Law Firm of Alakonya & Associates Advocates LLP have annexed two lists of alleged beneficiaries of the decree in the cause (hereafter referred to as the beneficiaries), one comprising 390 individuals and the other 44 individuals. They state on oath that they have the authority of the several beneficiaries to swear the affidavit in support of the application for leave for the aforesaid lawyers to come on record for them. 2. However, Wario Dokata and Peter Ouko Onyango have sworn affidavits in response and contended that the application is founded on forged documents. They contend that a majority of the persons whose names are included in the list were in fact unaware of the request that has been presented to court. 3. To give credence to these averments, some of the beneficiaries whose names are included in the two lists supplied to court have sworn affidavits and written notes to deny that they have instructed the Law Firm of Alakonya & Associates Advocates LLP to act as their advocates in the cause. They include Esther Wambui Gichuru, Christopher J Waratho, Hannah Njoki Kinuthia, Jeremia Ndeti Mbuvi, Joseph Maina Githendu, Daniel Musyoka Mutuku, Shaban Makuke Chemiati and a number of other beneficiaries. 4. These developments cast aspersions on the truthfulness of the affidavit in support of the motion under consideration. They (the developments) give credence to the averments by Wario Dokata and Peter Ouko Onyango that the application is anchored on documents whose authenticity is suspect. 5. Having regard to these serious allegations, which appear to have a basis if the affidavits by Esther Wambui Gichuru, Christopher J Waratho, Hannah Njoki Kinuthia, Jeremia Ndeti Mbuvi, Joseph Maina Githendu, Daniel Musyoka Mutuku and Shaban Makuke Chemiati are anything to go by, the court is not persuaded that the request for leave for the Law Firm of Alakonya & Associates Advocates LLP to come on record for the several alleged beneficiaries mentioned in the application under consideration has the blessings of all the beneficiaries. 6. Further, Wario Dokata contends that some individuals in the list of the purported beneficiaries in the application before court are not part of the original beneficiaries under the decree. He has presented names of nine individuals whom he avers are purporting to represent original beneficiaries who have either passed away or are incapacitated without first demonstrating that they have obtained the requisite grants to do so. 7. The law does not allow a person to represent the interest of a deceased person in a pending case without first obtaining a grant of letters of administration and applying to be included in the suit as a legal representative of the deceased (see ***Odera v Wasonga & another (Suing as Legal Representative of the Estate of Bernard Ooko Otieno alias Bernard Otieno Odero - Deceased) (Civil Appeal E002 of 2023) [2025] KEHC 5417 (KLR) (2 May 2025) (Judgment)***). As such, it is not open to an individual to simply walk into ongoing proceedings without demonstrating that he has obtained grant of letter of administration. 8. This being the case, the nine individuals who have been identified as purporting to represent deceased beneficiaries cannot do so before complying with the aforesaid procedure. As such and until they do so, they lack the *locus standi* to take any steps in the instant cause including changing lawyers. 9. The court is alive to the right of litigants to be represented by a lawyer of their choice. However, this right has limitation in respect of civil matters which are at the post judgment stage. 10. Order 9 Rule 9 of *the Civil Procedure Rules*, which places this limitation, provides as follows: - *“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court:-* 1. *upon an application with notice to all the parties; or* 2. *upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.’’* 3. In the case of ***Njoroge v Kigo [2023] KEHC 17790 (KLR),*** the court stated that the purpose of this limitation is to prevent litigants with mischievous intentions from withdrawing instructions from advocates who have previously represented them after judgment has been passed. To stem this eventuality, litigants who wish to change representation at this stage of litigation must either obtain the consent of their previous lawyers or seek leave of the court with notice to their previous advocates. 4. The court in the aforesaid case noted that the litigant seeking to change lawyers had not presented evidence to demonstrate that he had sought the consent of his previous advocates to change advocates without success. As such, the court declined the request to change advocates. 5. In the instant case, the two lists of the alleged beneficiaries which are on record show that they (the beneficiaries) are currently represented by the Law Firms of Gichuki King’ara & Co. Advocates and Nyabena Nyakundi & Co. Advocates. There is no indication that the Law Firm of Alakonya & Associates Advocates LLP engaged the two Law Firms to secure their consent to come on record on behalf of the various beneficiaries before they filed the instant application. 6. Whilst the court acknowledges that M/S Alakonya & Associates Advocates LLP were within their right to take the option of applying for leave to come on record for the various beneficiaries, it is on record that some of the beneficiaries have denied having instructed the said Law Firm to come on record for them. The court also notes that the Firm of Gichuki King’ara & Co. Advocates has sworn an affidavit to contend that some of the beneficiaries are seeking to change lawyers in a bid to evade the legal responsibility of paying the Law Firm’s costs. 7. Having regard to the foregoing, the court is of the firm view that the most appropriate way to resolve the dispute relating to representation is for Alakonya & Associates Advocates LLP to first seek the consent of Gichuki King’ara & Co. Advocates and Nyabena Nyakundi & Co. Advocates. This will obviate the questions of forgery and evasion of the obligation to pay fees which have been made in response to the application before court. 8. Having regard to the foregoing and until the issues of forgery and attempts not to settle legal fees which have been raised in response to the application are sufficiently addressed, the court declines to grant the request by M/S Alakonya & Associates Advocates LLP to come on record for the various beneficiaries mentioned in the lists attached to the application. It is so ordered. **Whether the court should stay execution of the decree herein on the ground that most of the beneficiaries of the decree have been settled.** 1. The Applicants contend that a majority of the beneficiaries, including them, have been paid (either in cash or in kind) and that the dispute between the parties is therefore largely settled. They allege that 678 out of 693 beneficiaries have been settled and nothing remains outstanding between them and the Judgement Debtor. As such, they aver that the execution proceedings that are currently being undertaken in the cause are without their blessings and are intended to benefit other persons. 2. However, after the application was served, some of the individuals who are alleged to have been paid (Esther Wambui Gichuru, Christopher J Waratho, Hannah Njoki Kinuthia, Jeremia Ndeti Mbuvi, Joseph Maina Githendu, Daniel Musyoka Mutuku, Shaban Makuke Chemiati) swore affidavits to deny this assertion. Further, other beneficiaries state that the fact that some of them have been paid is not a reason to stay execution proceedings unless there is proof of settlement of all of them. 3. The fact that some of the individuals who are said to have been paid their portions of the decretal sum have come out to dispute the assertion under oath can only imply that the Applicants in the motion under consideration were not entirely candid when they deponed to this issue. Having regard to this reality, the court declines the request to stay further execution for the decretal sum in dispute. 4. Importantly, the court notes that in the ruling by Justice Nduma Nderi dated 19th December 2024, he directed that any payments in kind to individual beneficiaries in satisfaction of the decree must be sanctioned by the Judgment Debtor and Decree Holder. The Applicants did not disclose this fact to court at the time of filing the instant application. They have also not presented to court evidence to show that both the Judgment Debtor and Judgment Creditor are aware of and have confirmed settlement of the amounts due to the beneficiaries in the application in kind as directed in the aforesaid ruling. **Determination** 1. The upshot is that the court finds that the application dated 10th July 2026 was presented without full disclosure of material facts and is premised on an affidavit whose truthfulness is now in doubt. 2. As such, the prayers sought therein are declined. **Dated, signed and delivered on the 31st day of July, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Claimant …………….for the Respondents **ORDER** **In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**