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Case Brief · caselaw.co.ke
ELRCOtherMotion in a Cause filed 14 March 2024 (Claim filed 14 March 2024)

Kamau v iProcure Limited; Muthusi (Proposed Interested Party) (Cause E197 of 2024) [2025] KEELRC 902 (KLR)

Employment and Labour Relations Court
20 March 2025
655 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed you can ask it—not the administrator or the High Court—for permission to sue a company under administration.

What this practically means

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Executive summary

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The Claimant sued iPROCURE Ltd on 14 March 2024 for unfair termination and breach of contract. After the Respondent was placed under administration on 26 April 2024, the Claimant filed a Motion on 27 January 2025 seeking leave to continue the claim under section 560(1)(d) of the Insolvency Act and to enjoin Anthony Makenzi Muthusi of KPMG Advisory Services Ltd (the Administrator) as an Interested Party. The Administrator opposed, contending that jurisdiction to grant leave lay exclusively with the High Court handling the insolvency (Insolvency Cause No. E84 of 2024) and that granting leave would defeat the moratorium. On 17 March 2025, the Claimant filed a Notice to withdraw the Motion. The Court nonetheless addressed the legal questions raised, holding that section 560(1)(d) offers two alternatives - the Administrator's consent or the Court's approval - so the Administrator's consent is not a precondition, and that no authority supported the claim that only the Insolvency Court may grant leave. Radido Stephen, J reasoned that since the suit predated the administration and this Court enjoys the status of the High Court when exercising its jurisdiction, requiring parties to move the High Court would impede the constitutional right of access to justice. The Motion was marked as withdrawn with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether leave to continue legal proceedings against a company under administration should be sought from the Administrator or may be granted by the Court
  2. 2.Whether the leave/approval under section 560(1)(d) of the Insolvency Act must be sought from the High Court handling the insolvency proceedings or may be granted by this Court

Key legal issues

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01

Whether consent of the Administrator is mandatory before a person may continue proceedings against a company under administration

Holding

No - the section offers two options: the Administrator's consent or the Court's approval, and the Court has discretion to grant leave

Reasoning

Section 560(1)(d) of the Insolvency Act permits legal proceedings against a company under administration only with the consent of the administrator or with the approval of the Court. These are alternative routes. The Administrator's assertion that his consent must first be sought misreads the provision, since the section expressly contemplates either route.

p. 2
02

Whether only the Insolvency Court (High Court handling insolvency) may grant the leave

Holding

No - this Court has the status of the High Court and can grant leave; requiring parties to go elsewhere would obstruct access to justice

Reasoning

Although the Insolvency Act defines 'the Court' as the High Court or a division of the High Court dealing with insolvency disputes, this Court enjoys the status of the High Court when exercising its jurisdiction. Since the claim was filed before administration commenced, expecting the claimant to move the High Court would be an impediment to the constitutionally guaranteed access to justice and expeditious determination of disputes.

p. 2

Legal principles established

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  • A party seeking to continue proceedings against a company under administration may obtain the Court's approval; the Administrator's consent is not a precondition
  • This Court, having the status of the High Court when exercising its jurisdiction, may itself grant leave under section 560(1)(d) of the Insolvency Act; requiring parties to move the High Court would impede access to justice

Court orders

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  1. 1.The Motion dated is marked as withdrawn with costs.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court's first-instance jurisdiction; the Court's status as the High Court when exercising its jurisdiction, in light of section 560(1)(d) of the Insolvency Act and the constitutional guarantee of access to justice

Relief refused

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Leave to proceed and/or continue with the Claim against the Respondent

The Motion was withdrawn by the Claimant before the Court determined it

p. 2

Enjoinment of Anthony Makenzi Muthusi of KPMG Advisory Services Ltd as an Interested Party

Not determined; Motion withdrawn

Costs

The Motion is marked as withdrawn with costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Administrator’s objection that his consent must be sought is not correct. A Court has the discretion to grant the leave.
p. 2Administrator's consent not mandatory under section 560(1)(d)
This Court has the status of the High Court when exercising its jurisdiction and it would be an impediment to the right to access justice and expeditious determination of disputes without delay to expect parties before it to move the High Court to secure leave to continue legal proceedings against a company under administration.
p. 2ELRC's power to grant leave under section 560(1)(d) of the Insolvency Act
The Motion dated is marked as withdrawn with costs.
p. 3Final orders

Issues in the judgment

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minor

The Motion date is incomplete in the orders - the Court does not state the date of the Motion it marks as withdrawn

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, "Kamau v iProcure Limited; Muthusi (Proposed Interested Party) (Cause E197 of 2024) [2025] KEELRC 902 (KLR)", Case Analysis (2025). Motion in a Cause filed 14 March 2024 (Claim filed 14 March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/902/eng@2025-03-20

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