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ELRCDismissedNot stated in the judgment· [2021] KEELRC 2240 (KLR)

Miriam Chari Mbogho v National Water Conservation and Pipeline Corporation [2021] KEELRC 2240 (KLR)

Employment and Labour Relations Court
29 January 2021
1,957 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to hold a state corporation's CEO personally liable for unpaid judgment debts because no formal decree had been extracted and the company, not the officer, owes the money.

What this practically means

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Executive summary

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This ruling by Maureen Onyango J of the Employment and Labour Relations Court at Nairobi, delivered on 29 January 2021, determines a notice of motion dated 25 September 2019 by the claimant, Miriam Chari Mbogho, following judgment in her favour on 26 October 2018 awarding her compensation of Kshs.1,423,260, unpaid reimbursable claims of Kshs.712,484, forfeited benefits, costs and interest. The claimant sought orders summoning Eng. Sammy Mburu, the respondent's Chief Executive Officer, to show cause why he had not satisfied the decree, why he should not be punished, and directing payment of Kshs.3,335,744.00 forthwith plus Kshs.29,816,338.00 representing forfeited benefits. The respondent filed a preliminary objection attacking the supporting affidavit as fatally defective for contravening the Statutory Declarations Act, relying on Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli. The court held the omission of the date of the oath alone did not render the affidavit fatally defective, since both deponent and Commissioner for Oaths signed it, distinguishing Konchellah where the affidavit was unsigned, uncommissioned and undated. However, the application failed on substantive grounds: no decree had been extracted or attached and the decretal sum was unascertained, making execution premature; the orders were in personam against the CEO while the debt was owed by the respondent, a separate corporate legal entity; and the CEO intended to be summoned was no longer in office and was deceased. The application was dismissed with no orders for costs.

Key legal issues

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01

Validity of the supporting affidavit lacking a date

Holding

Not fatally defective; only the date was missing and both deponent and Commissioner signed

Reasoning

Section 5 of the Statutory Declarations Act requires the Commissioner for Oaths to state the place and date of the oath. Here the date was omitted but the affidavit was signed and witnessed. The authority relied on by the respondent involved an affidavit that was unsigned, uncommissioned and undated, and was therefore distinguishable. Missing date alone, without missing signatures, does not invalidate the affidavit.

p. 3
02

Whether notice to show cause orders could issue against the CEO

Holding

No; the application was premature and misconceived

Reasoning

The application was in essence an execution application but no decree had been extracted or attached and the decretal sum was unascertained. Further, the respondent is a State corporation suable in its own name; the orders sought were in personam against the CEO while the debt was the respondent's. The intended target of the orders was also deceased. The application therefore failed.

p. 4

Legal principles established

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  • Omission of the date of the oath alone does not render an affidavit fatally defective where both the deponent and the Commissioner for Oaths have signed it
  • An affidavit merely supports an application; absence of defects in an affidavit will not save an application that fails on its substance
  • A Chief Executive Officer cannot be punished or arrested for failure to pay the debts of the corporate body he serves absent court orders directed at him personally which he has disobeyed

Court orders

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  1. 1.The application dated 25th September 2019 is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Statutory Declarations ActSections 5 and 8
  • Government Proceedings ActCap 40
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (1)

  • Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 Others
    [2018] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court; consequential application to enforce decree in the same suit

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, "Miriam Chari Mbogho v National Water Conservation and Pipeline Corporation [2021] KEELRC 2240 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2240/eng@2021-01-29

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