GEORGE NDIRITU & 8OTHERS v TETU DAIRY FARMERS CO-OP. SOCIETY LTD [2010] KEHC 2444 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Miscellaneous Application 36 of 2010

GEORGE NDIRITU…………………………………………….……1ST APPLICANT

GICHECHA RIBUTHI…………………………….……..…………2ND APPLICANT

AMOS KARIMI…………………………………………..………….3RD APPLICANT

JOHN GITHINJI…………………………………………………….4TH APPLICANT

FRANCIS JAMES NDEGWA…………………………………..…..5TH APPLICANT

SHADRACK G. KARINGA……………………………………..…..6TH APPLICANT

JOSEPH MWATHI……………………………………………….….7TH APPLICANT

JOHN NDEGWA GITONGA……………………………………….8TH APPLICANT

DEDAN KIAI…………………………………………………….…..9TH APPLICANT

VERSUS

TETU DAIRY FARMERS CO-OP. SOCIETY LTD.............……..RESPONDENT

RULING

Pursuant to the provisions ofOrder XLI rule 4of the Civil Procedure Rules, the applicants herein, took out a Notice of Motion in which they sought for an order of stay of execution of the orders of 23rd February 2010 in the Co-operative Tribunal Case Nos. 205 of 2006, 206 of 2006, 207 of 2006, 208 of 2006, 209 of 2006, 210 of 2006, 211 of 2006, 213 of 2006 and 214 of 2006 (Tetu Dairy Co-operative Ltd.) =vs= George Ndiritu, Gichehu Ributhi, Amos Karimi, John Githinji, Francis James Ndegwa, Shadrack G. Karinga, Joseph Mwathi, John Ndegwa Gitonga and Dedan Kiai.The motion is supported by the affidavit of Francis James Ndegwa sworn on 9th March 2010. Tetu Dairy Farmers Co-operative society Ltd, the Respondent herein, opposed the Motion by filing the Replying Affidavit of its Chairman, Francis Kamweru Wamugunda sworn on 6th April 2010.

When the motion came up for interpartes hearing, the Respondent and its counsel failed to turn up hence the same proceeded for hearing exparte.I am aware this court is enjoined to consider the contents of the Replying Affidavit notwithstanding the absence of the Respondent.It is the submission of J. Macharia, learned advocate for the Applicants, that unless the order of stay is given, the Applicants are likely to be crippled financially because the monthly installments they had been ordered to pay is beyond their individual capacities to meet.The Applicants are also of the view that the intended appeal has high chances of success in that they will be able to show that the decisions were decided on the wrong premises and that summary judgment was entered whereas there were triable issues.

The Respondent opposed the Motion on the following grounds: First, it is argued that the Motion is fatally defective in that there was no authority permitting the proceedings filed on behalf of other persons.Secondly, that the Motion lacks merit.Thirdly, that the Motion isresjudicatasince the applicant had filed a similar application before the Co-operative Tribunal.

I have considered the grounds set out on the face of the Motion and the facts deponed in the affidavit filed for and against the Motion.The Motion is premised on the provisions ofOrder XLI rule 4of the Civil Procedure Rules.In such applications an applicant must show the substantial loss it would suffer if the order is denied.The application for stay must be filed without an unreasonable delay.The provisions for security for the due performance of the decree must be considered.In this case the Applicants aver that the monthly installments imposed would cripple them.It is on record that the Applicants were ordered to make payments by installments as follows:

“CASE NO.

JUDGMENT DEBTOR A M O U N T S

APPROXIMATE

PROPOSED IMPOSED

205/ 2006 George Ndiritu 330,000 5,000 18,000

206/2006 Gicheha Ributhi 1,300,000 5,000 75,000

207/2006 Amos Karimi 300,000 5,000 18,000

208/2006 John Githinji 330,000 7,000 18,000

209/2006 Francis James Ndegwa 1,300,000 5,000 75,000

210/2006 Shadrack G. Karanja 1,300,000 10,000 75,000

211/2006 No proposals made

213/2006 John Ndegwa Gitonga 1,300,000 5,000 75,000

214/2006 Dedan Kiai 330,000 8,000 18,000”

The Co-operative Tribunal made the aforesaid orders upon being beseeched by the Applicants.In fact they moved the Tribunal to exercise its discretion to be allowed to liquidate the decretal sum by monthly installments.It would appear if the order of stay is not given, the Applicants may be inconvenienced in meeting monthly installments.In my view that itself cannot amount to a substantial loss.I am not convinced that the Applicants have shown the substantial loss they would suffer.It is also alleged that the Motion isresjudicata.This averment is contained in paragraph 8 of the Replying Affidavit of Francis Kamweru Wamugunda.This averment has not been controverted despite the fact that the affidavit was served upon the Applicants’ counsel.I have perused the ruling of the Hon. Mr. Justice Makhandia delivered on 29th January 2009 and annexed to the affidavit of Francis Kamweru Wamugunda and it is obvious that the Applicants made a similar application which was heard and dismissed by the Hon. Mr. Justice Makhandia.I am convinced this Motion isresjudicata.The applicants have simply abused the Court process.

In the end I see no merit in this Motion.The same is ordered dismissed with costs to the Respondent.

Dated and delivered at Nyeri this 7th May day of 2010.

J. K. SERGON

JUDGE