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ELRCStruck OutNot stated in the judgment· [2013] KEELRC 686 (KLR)

Kenya Petroleum Oil Workers Union v Delta Petroleum Trading Company (Cause 145 of 2010) [2013] KEELRC 686 (KLR)

Industrial Court of Kenya
19 July 2013
1,090 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan union's bid to make company directors personally pay a judgment debt failed because it skipped the basic step of extracting the court decree for execution first.

What this practically means

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Executive summary

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The claimant union, Kenya Petroleum Workers Union, moved the Industrial Court by Notice of Motion dated 11th March 2013 under Rules 22 and 35 of the Civil Procedure Rules, the Civil Procedure Act and the Companies Act, seeking orders that four named directors of the respondent company attend court for oral examination and produce the company's books of account, bank statements, VAT and income tax returns and other financial records for nine years, and that the corporate veil be lifted so the directors personally satisfy a decree of Kshs. 4,625,823/= plus costs and interest arising from an award of 15th June 2011. The 1st respondent opposed, stating he was acquitted in criminal case No. 3275 of 2007, that the claim against him had been dismissed and the decree amended, that a review application was pending, and that neither he nor his wife Savitri Bagwanji Parmar was a director of the 2nd respondent company. The court noted the award issued against two respondents but judgment was confirmed against the 2nd respondent only by decree dated 9th September 2011. It held that before a court entertains an application to lift the corporate veil for execution, it must be satisfied that efforts have been made to execute the decree as issued, and the claimant had not extracted the operative decree. The application was fundamentally flawed but the court, mindful of the objectives of section 3 of the Industrial Court Act and the union's long pursuit of the fruits of its award, struck out the application with liberty to file an appropriate application, with each party bearing their own costs.

Key legal issues

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01

Lifting the corporate veil for execution of a decree

Holding

The court may grant examination and production orders and lift the corporate veil only after confirming that efforts have been made to execute the decree as issued; the claimant had not extracted the decree of 9th September 2011 and so the application was premature and flawed

Reasoning

The court noted that the award was issued against two respondents but judgment was confirmed against the 2nd respondent only, per the decree dated 9th September 2011. The procedure for lifting the corporate veil on execution requires demonstrated efforts at execution. Since the claimant had not extracted the operative decree, the application could not be entertained, though the claimant was given leave to file an appropriate application.

p. 3
02

Personal liability of non-directors

Holding

Examination and veil-lifting orders cannot issue against persons who are not directors of the judgment debtor company, as confirmed by the company search

Reasoning

The 1st respondent stated he was only a manager, not a director, and that his wife Savitri Bagwanji Parmar was also not a director nor a party to the proceedings. The company search attached to the claimant's own affidavit did not list either as directors. The court had already found the claim lay against the 2nd respondent only, and a review application remained pending.

p. 2

Legal principles established

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  • Before a court entertains an application to lift a corporate veil for purposes of executing a decree, it must be satisfied that there have been efforts to execute the decree as issued

Court orders

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  1. 1.The claimant's application dated 11th March 2013 is struck out
  2. 2.The claimant is allowed time to file an appropriate application or move the court as appropriate
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesRules 22 and 35
  • Civil Procedure ActSections 1, 2 and 3
  • Companies ActNot specified
  • Labour Institutions ActNot specified
  • Industrial Court ActSection 3
Jurisdiction invoked
Industrial Court Act and Labour Institutions Act; application brought under Rules 22 and 35 of the Civil Procedure Rules, Sections 1, 2 and 3 of the Civil Procedure Act and the Companies Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Petroleum Oil Workers Union v Delta Petroleum Trading Company (Cause 145 of 2010) [2013] KEELRC 686 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/686/eng@2013-07-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.