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ELRCDismissedNot stated in judgment· [2019] KEELRC 222 (KLR)

Grace Wanjiku Kageni Waiyaki v Pegrume Limited & another [2019] KEELRC 222 (KLR)

Employment and Labour Relations Court of Kenya
29 November 2019
MOMaureen Onyango
2,010 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Following a judgment of 4th December 2018 in which the claimant was awarded Kshs.745,978.50 with interest and costs, execution commenced and warrants of sale were issued to Jumbo Airlink Auctioneer for Kshs.1,170,754.00. On 6th May 2019 the auctioneer proclaimed goods which CAMMCARRIER SATELLITE SERVICES LIMITED claimed as its own, prompting objection proceedings under Section 31 of the Civil Procedure Act and Order 22 Rule 51(2) seeking a declaration that the proclamation was unlawful, that the proclaimed items belonged to the objector, and that the judgment debtor had no interest in them. The objector argued that the decree holder failed to intimate an intention to proceed under Order 22 Rules 21 and 53, relying on Siso Limited v Carolyne Wanjira. The claimant countered that the objector and respondent were sister companies sharing office space, address, stationery, machinery and directors under the Core Technology Group, that the notices were unsigned and unserved, and that ownership was unproved. The court held that Rules 53 and 54 were never activated because the notices were not valid under Rule 52, distinguishing Siso Limited. On the substance, the supporting affidavit was sworn by an officer of both companies; the invoice lacked proof of payment and concerned delivery elsewhere; ownership of the motor vehicle was unproved; and the shared-director averments went uncontroverted. The court, invoking Section 2 of the Employment Act on directors as employers, found the objection proceedings a sham and dismissed them with costs on 29th November 2019.

Key legal issues

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01

Whether the failure by the attaching creditor to intimate intention to proceed under Order 22 Rule 53 obliged the court to raise the attachment

Holding

No. Rules 53 and 54 were not activated because the objector did not serve a valid notice under Rule 51/52.

Reasoning

The court held that Rule 52 requires the attaching creditor to respond only if called upon by the court by notice in writing. The notices relied on by the objector were unsigned and not specifically served on the attaching creditor, hence not valid notices. The decree holder had also responded contesting the objection, so Rule 53 was inapplicable and the Siso Limited decision distinguishable.

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02

Whether the objector proved ownership of the proclaimed goods and motor vehicle

Holding

No. No proof of ownership of the furniture or the motor vehicle was adduced.

Reasoning

The supporting affidavit was sworn by Giri Babu, an officer of both companies; the invoice for the furniture was unaccompanied by proof of payment, was in a slightly different company name, and was for delivery at premises other than those where the proclamation occurred. Ownership of motor vehicle KAM 651V was also not proved.

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03

Whether the objection proceedings were an abuse of process designed to defeat the decree

Holding

Yes. The court found the proceedings a sham given the identity of directors, offices and shared premises between objector and judgment debtor.

Reasoning

Azhar Chaudry is a director of both the objector and the Managing Director of the respondent; the companies share office space, postal address, stationery and machinery under the Core Technology Group. The objector did not specifically deny these averments, which remained uncontroverted, explaining why the lease was in the objector's name.

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Legal principles established

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  • Rules 52 to 54 of Order 22 are only activated where a valid notice under Rule 51 is served on the attaching creditor and the court calls upon the creditor to respond; absent a valid notice, Rule 53 does not apply
  • A notice that is unsigned and not specifically served on the attaching creditor is not a valid notice under Rule 52
  • Directors of a company are employers and/or agents of an employer within the meaning of Section 2 of the Employment Act, against whom or whose property an employee may claim terminal dues

Court orders

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  1. 1.The objection proceedings are dismissed
  2. 2.Costs of the objection proceedings awarded to the claimant/decree holder

Authorities

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Legislation

  • Civil Procedure ActSection 31
  • Civil Procedure RulesOrder 22 Rules 51, 52, 53, 54, 55 and 21
  • Employment ActSection 2 (definition of employer)

Cases cited (1)

  • Siso Limited v Carolyne Wanjira
    (eKLR) 2015
Jurisdiction invoked
Original first-instance suit; objection proceedings under Section 31 of the Civil Procedure Act and Order 22 Rules 51-55 of the Civil Procedure Rules

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, "Grace Wanjiku Kageni Waiyaki v Pegrume Limited & another [2019] KEELRC 222 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/222/eng@2019-11-29

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