Rosabel Wagicuyu Nyamu v Kieran Day & another [2014] KEELRC 1443 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Competence of a suit brought against receivers alone, without the company in receivership
The suit against the Receivers alone was incompetent and was struck out on preliminary objection
Relying on the Court of Appeal's decision in Lochab Brothers, the court restated that a receiver is the agent of the company, cannot sue in his own name, and by parity of reasoning (as applied by the same judge in Ashioya) cannot be sued personally for claims arising from the company's contracts, including employment contracts. Since only the two Receivers were named as Respondents and the company was not a party, the suit was incompetent. The claimant was left free to file a fresh suit against the correct parties.
Whether Article 159(2)(d) of the Constitution overrides the rule on who may sue or be sued in receivership
No - Article 159 cannot be an elixir for failure to comply with procedure where no justification is given
The claimant argued that the court should overlook the misjoinder under Article 159's command not to pay undue regard to procedural technicalities. The court held that while the Constitution is sacrosanct and inconsistent statutory or common law must yield, the claimant did not demonstrate that the substantive receivership law failed any constitutional threshold. The judge warned of the danger of Article 159 becoming an 'unruly horse' through casual invocation by non-compliant litigants.
Legal principles established
#- Receivers are agents of the company in receivership, have no locus standi to sue in their own name, and conversely a claim arising from the company's contract (such as an employment claim) must be brought against the company, not the receivers in their personal capacity
- Article 159 of the Constitution cannot be invoked to cure non-compliance with substantive and procedural law where no reason for the failure is offered
Court orders
#- 1.The preliminary objection is upheld
- 2.The Memorandum of Claim is struck out with no order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (employment relationship between Claimant and Respondent)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rosabel Wagicuyu Nyamu v Kieran Day & another [2014] KEELRC 1443 (KLR)", Case Analysis (2014). Motion dated 26 May 2014 (ELRC, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1443/eng@2014-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.