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ELRCPartially AllowedCause No 1322 of 2016· [2023] KEELRC 1173 (KLR)

Kioko & 3 others v Primi Piatti Ltd & another (Cause 1322 of 2016) [2023] KEELRC 1173 (KLR)

Employment and Labour Relations Court
15 May 2023
2,307 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A company's property cannot be seized to settle another company's debt, even if the two operate from the same premises.

What this practically means

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Executive summary

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This is a ruling on an objection to attachment in execution of a decree of the Employment and Labour Relations Court at Nairobi, delivered on 15th May 2023 by Dr. Jacob Gakeri, Judge. The 2nd Respondent/Objector, a limited liability company, moved the court by Notice of Motion dated 5th October 2022 under Order 22 Rule 51 of the Civil Procedure Rules seeking the lifting of an attachment of movable property proclaimed by Betabase Auctioneers on 29th September 2022 in execution of a decree of Kshs.454,403.00 in favour of the Claimants against the 1st Respondent, Primi Piatti Ltd. The Objector argued it was a separate legal entity from the Judgement-Debtor, was the tenant of Shop 15A, Yaya Centre, operated there under a single business permit, and owned the proclaimed furniture and goods. The Decree-Holders, through John Mikosi Kioko, countered that the chattels belonged to and were used by the 1st Respondent, a sister company, that the permit and insurance documents did not establish ownership of the chattels, and that the objection was a scheme to defeat execution. The court framed a single issue: whether the application was merited. Applying the Salomon principle and holding that co-location of businesses does not prove ownership of goods, the court found the Objector's lease, business permit and burglary insurance on stock with a declared value of Kshs.14,531,250/= demonstrated at least an equitable interest, and that the Decree-Holders adduced no evidence of the Judgement-Debtor's ownership nor of any trust in its favour. The attachment was lifted and each party ordered to bear its own costs.

Key legal issues

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01

Whether the Objector established a legal or equitable interest in the goods proclaimed by Betabase Auctioneers on 29th September, 2022

Holding

The Objector established the requisite interest and the attachment was lifted

Reasoning

The Objector produced a lease of Shop 15A, Yaya Centre effective 2014 to 2024, a single business permit allowing it to carry on business there, and a burglary insurance policy on stock with declared value of Kshs.14,531,250/=. Insurance law requires a legal or equitable interest in property, so the insurable interest demonstrated at least an equitable interest in the goods. No evidence was adduced that the Objector held the goods in trust for the Judgement-Debtor, and the decree-holders adduced no proof of the Judgement-Debtor's ownership.

p. 5
02

Whether the Objector, as a separate legal entity from the Judgement-Debtor, could have its goods attached in execution of the decree

Holding

The two companies were distinct legal entities and only the 1st Respondent was the employer/judgement-debtor

Reasoning

Certificates of incorporation showed the Judgement-Debtor was registered on 15th July 2009 and the Objector on 4th October 2007, both existing when the decree-holders worked. Pay slips showed that other than the 4th Claimant, the claimants were employees of the 1st Respondent. The fact that the Judgement-Debtor operated at the same premises did not necessarily mean it owned the proclaimed goods.

p. 4
03

Allocation of the burden of proof between objector and decree-holder

Holding

While the objector bears the burden of showing entitlement or interest, the decree-holders here adduced no evidence that the goods belonged to the Judgement-Debtor

Reasoning

Following Arun C. Sharma, the Objector bore the burden of proving entitlement or a legal or equitable interest, which it discharged through the lease, business permit and insurance. The allegation that the ownership claim was a scheme to defeat execution was unsupported by any material.

p. 5

Legal principles established

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  • An objector bears the burden of proving that he is entitled to or has a legal or equitable interest in the whole or part of the attached property.
  • A distinct legal entity's property cannot be attached in execution of a decree against a separate judgement-debtor, and possession plus insurable interest evidences an equitable interest in proclaimed goods.

Court orders

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  1. 1.The attachment of the Objector/Applicant's property set out in the Proclamation of Attachment by Betabase Auctioneers dated 29th September, 2022 is lifted
  2. 2.Parties shall bear own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 22 Rule 51
  • Civil Procedure Rules, 2010Order 22 Rule 53
  • Civil Procedure Rules, 2010Order 21 Rule 1
  • Civil Procedure ActSections 1A, 1B & 3A
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (9)

  • Kem Paper Ltd V Kenya Times Media Trust Ltd
    (2006) eKLR
  • Kenya Chemical & Allied Workers Union (Claimant/Decree Holder) vs East African Portland Cement Co. Ltd (Respondent/Judgement Debtor) & Kenya Commercial Bank Kenya Ltd (Objector/Applicant)
    (2018) eKLR
  • Precast Portal Structures V Kenya Pencil Co. Ltd & 2 others
    (1993) eKLR
  • Salomon V Salomon & Co. Ltd
    (1897) AC
  • Lucena V Craufurd
    (1806) 2 B & P NR 269 H.L
  • Arun C. Sharma V Raikundalia T/A A. Raikundalia & Co. Advocates and 4 others
    (2014) eKLR
  • Chotabhae M. Patel V Chapraphi Patel
    (1958) Ed. 743
  • Ida Soman V Najib Mubiru
    HCCCA No. 234 of 2005
  • Tawakal Airbus Ltd V Irene Muthoni Njeri Njirati & another
    (2020) eKLR
Jurisdiction invoked
Order 22 Rule 51 of the Civil Procedure Rules, 2010 (objection to attachment in execution of a decree), with Section 1A, 1B & 3A of the Civil Procedure 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, "Kioko & 3 others v Primi Piatti Ltd & another (Cause 1322 of 2016) [2023] KEELRC 1173 (KLR)", Case Analysis (2023). Cause No 1322 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1173/eng@2023-05-15

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