REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

CAUSE NO. 1488 OF 2010

RAHAB WOTHAYA ESIROMO                                                               

JOSEPH KAMAU RUOYA                                                                       

SIMON MAINA CHEGE                                                                            

LABAN MAINA CHEGE................….…. CLAIMANTS                          

DAVID MUIRU NJOROGE                                                                       

MICHAEL GIKONYO KINYANJUI                                                          

NOBERT OMANYO WABWIRE                                                            

STEPHEN WAMBUGU WAWERU                                                        

VERSUS

BLUE SHIELD INSURANCE                                                                

COMPANY LIMITED ……………...………..…. 1ST REPONDENT

SHIELD ASSURANCE                                                                          

COMPANY LIMITED ………….……….…….. 2^ND RESPONDENT

STATUTORY MANAGER, BLUE SHIELD                                          

INSURANCE COMPANY LIMITED                                                    

(UNDER STATUTORY MANAGEMENT) ….... 3^RD RESPONDENT

M/S Wetende for applicant

Mr. Kirimi for respondent   

RULING

1. By a notice of motion application filed on 24^th March 2016, the 2^nd respondent Shield Assurance Company Limited seeks interalia orders that;

the warrant of attachment of movable property in execution of decree for money issued by the Honourable court on 24^th February 2016 as against the 2^nd respondent/Applicant to Elijah Mbuthia Irura of Warleen Auctioneers and all consequential orders and or actions attendant thereto be set aside and that Warleen Auctioneers be restrained from attaching the applicant’s goods proclaimed on 29^th January 2016 or any of its goods or property.

2. The application is based on the grounds set out on the notice of motion.

3. The sole basis of the application is that there is no judgment against the applicant to warrant any attachment of its property as alleged or at all and therefore, the applicant will suffer substantial loss and damage if the orders sought are not granted.  The application has been brought timeously and no prejudice will be suffered by the claimant.

4. That in her Judgment delivered on 29^th April 2013, at page 10 thereof, Hon. Lady Justice Onyango held interalia that the claim against the applicant had been overtaken by events as the claim for pension benefits against the second respondent has been met by Roberts Insurance Brokers.  The Judge also held that there was no order for costs in respect of the 2^nd respondent.

5. Furthermore, upon application by the second respondent on 19^th Match 2014, Hon. Maureen Onyango reviewed the Judgment and from the bottom of page 5 of her ruling she held interalia that

“the Judgment does not say the 2^nd respondent will pay the outstanding debt.”

6. The applicants pray the application be allowed.

Responses

7. In the replying affidavit filed on 30^th March 2016, the claimant states that the application for review of the Judgment was dismissed on 19^th March 2014.  That the respondent dissatisfied with the ruling filed an appeal vide a notice of appeal dated 2^nd April 2014.

8. The court has never ordered that the 2^nd respondent is not liable.  The claimants pray that the application be dismissed with costs.

Determination

9. The court has perused the Judgment of Hon. Maureen Onyango J. and in particular at page 10 thereof and it reads;

 “the claim against the second respondent has been overtaken by events as the claim for pension benefits against the 2^nd respondent has been met by Roberts Insurance Brokers.  There shall be no orders for costs in respect of the 2^nd respondent.”

10. It is alleged further that, in a ruling delivered on 19^th March 2014, the Judge reviewed the Judgment at page 5 of her ruling and held interalia that;

“the Judgment does not say the 2^nd respondent will pay the outstanding debt.”

 11. Indeed, the learned Judge clarified her statement on page 10 of the Judgment aforesaid thus;

“the issues I was to determine are set out at page 10 of the Judgment.  I only absolved the 2^nd respondent from payment of costs in respect of pension benefits which responsibility had been met by Roberts Insurance Brokers on intervention of the respondent benefits Authority.”

12. The Judge went to find that the 2^nd respondent having been a party to the claim and having applied and failed to be released from the case the 2^nd respondent is to pay costs.

13. The Judge went further to clarify that;

 “the Judgment does not say that the 2^nd respondent will pay the outstanding debt but the judgment says;

Any balance is to be recovered from the 1^st and 2^nd respondents as part of the debt to be paid by the 3^rd respondent in accordance with law under which the receiver manager has been appointed.”

14. Accordingly, the application lacks merit.  The 2^nd respondent was not released from the Judgment debt in its entirety.  Any ambiguity was clarified in the ruling of Maureen Onyango J.  delivered on 19^th March 2014.

15. The application is dismissed with costs to be met by the 2^nd respondent/applicant.

Dated and delivered at Nairobi this 9^th day of December 2016

MATHEWS NDERI NDUMA

PRINCIPAL JUDGE