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ELRCPartially AllowedNotice of Motion dated 30th August 2018 (in the employment claim leading to decree dated 19th May 2017)· [2021] KEELRC 1804 (KLR)

Mcdonald Charo & 36 others v Bofa Maweni Limited [2021] KEELRC 1804 (KLR)

Employment and Labour Relations Court
29 April 2021
LNLINNET NDOLO
1,649 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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The Claimants, who had obtained judgment and a taxed decree against the Respondent, Boa Maweni Limited, sought an order under Order 22 Rule 35 of the Civil Procedure Rules for the examination on oath of the Respondent's Directors, Shahbaz Khan and Muhammad Faisal, as to the company's means and assets, with personal liability in default. Khan opposed, asserting he had resigned as Director on 12th November 2013 and transferred his shares, and that the decree postdated his resignation. The 1st Claimant countered with a CR 12 of 9th January 2017 showing Khan still a Director and challenging the legality of the resignation; Khan in turn questioned the authenticity of that record and produced a CR 12 of 28th January 2016 confirming his exit. The Court found the directorship question hotly contested, with two conflicting sets of company records, but held that this did not bar examination: Order 22 Rule 35 permits summoning any person, not only a Director, and Khan, having been a Director during the Claimants' employment, remained a person of interest regarding the unsatisfied decree. Relying on Ultimate Laboratories v Tasha B Loservice Limited, the Court directed Khan to appear for examination on 24th May 2021. The associated corporate veil issue was not determined for want of a corresponding prayer. Costs were reserved to the cause.

Key legal issues

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01

Whether a contested directorship bars examination under Order 22 Rule 35

Holding

No; the Court may summon a person whose directorship is disputed, including a former Director, for examination on the judgment-debtor's ability to settle the decree

Reasoning

The rival affidavits reveal conflicting company records on Khan's directorship. The Court held that this dispute does not bar examination, since Order 22 Rule 35 empowers the Court to summon even a person other than a Director or officer. Having been a Director during the Claimants' employment, Khan remains a person of interest regarding the Respondent's ability to pay the outstanding decretal sum.

p. 3
02

Scope of Order 22 Rule 35 examination

Holding

The rule permits examination of the judgment-debtor, any officer of a corporation, or any other person, as to debts owed to and property or means of the judgment-debtor

Reasoning

The Court quoted the rule and adopted Ringera J's formulation that where an applicant shows the respondent can provide information as to the judgment-debtor's debts and means, the court should summon that person, who need not have any direct connection with the issues in the case.

p. 2

Legal principles established

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  • Any person, whether or not still a Director or connected to the issues in the case, may be summoned for examination under Order 22 Rule 35 regarding the judgment-debtor's means

Court orders

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  1. 1.Shahbaz Khan shall appear before the Court on 24th May 2021 at 11.00 am for examination under Order 22 Rule 35 of the Civil Procedure Rules
  2. 2.Costs of the Motion in the cause
Jurisdiction invoked
Order 22 Rule 35 of the Civil Procedure Rules (post-decree examination of judgment-debtor's officers)

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, "Mcdonald Charo & 36 others v Bofa Maweni Limited [2021] KEELRC 1804 (KLR)", Case Analysis (2021). Notice of Motion dated 30th August 2018 (in the employment claim leading to decree dated 19th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1804/eng@2021-04-29

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