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ELRCStruck OutCause No 1322 of 2016· [2025] KEELRC 2911 (KLR)

Kioko & 3 others v Primi Piatti Limited & another (Cause 1322 of 2016) [2025] KEELRC 2911 (KLR)

Employment and Labour Relations Court of Kenya
24 October 2025
ANAgnes Kitiku Nzei
1,846 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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This is a ruling of the Employment and Labour Relations Court at Nairobi, delivered by Agnes Kitiku Nzei, J, on 24th October 2025, on a Notice of Motion dated 16th January 2024 brought by the Claimant/Decree Holders under Order 22 Rule 35 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. Judgment had been entered for the Claimants against the 1st Respondent/Judgment Debtor, and the decretal sum remained unpaid despite execution. The Claimants sought leave to serve by substituted means, an order compelling the Judgment Debtor's director, Michel Mouyart, to attend Court for oral examination on the company's means, production of the company's books and documents, and, in default, that the director be held personally liable for the decree, including warrants of arrest. The director's replying affidavit, filed about a month after a seven-day deadline without leave, was struck off. Counsel for the director thereafter left the matter to the Court, with prayers (c) and (d) being matters of fact uncontestable without the affidavit. The Court framed two issues: the validity of documents filed out of time without leave, and the merits. It held that filings outside a period limited by law or court order, without leave, are a nullity, and that although the application was unopposed, personal liability of a director requires lifting or piercing of the corporate veil - an equitable remedy not specifically sought. The application was struck off with no order as to costs, with leave to file a proper application.

Key legal issues

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01

Validity of documents filed out of time and without leave

Holding

The replying affidavit filed approximately one month after the seven-day deadline, without leave, was invalid and was properly struck off

Reasoning

The Court had on 11th February 2025 granted seven days to file a response. No filing occurred until 11th March 2025, without leave, and no subsequent application for extension or deemal was made. Filing outside a period limited by law or court order without leave is a nullity; the Claimant objected and the Court struck the affidavit off, leaving the application unopposed.

p. 4
02

Whether personal liability may be imposed on the director for the judgment debtor's decree

Holding

The prayer could not be granted because the application did not seek lifting/piercing of the corporate veil, which must be specifically sought and determined on equitable principles

Reasoning

Although the application stood unopposed, the Court noted that holding a director personally liable for a company's debt requires an equitable lifting of the corporate veil. That remedy was not pleaded in the application; parties are bound by their pleadings, so the relief was incompetent and incapable of being granted even unopposed.

p. 5

Legal principles established

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  • A document filed out of time limited by law or by court order, without leave, is a nullity and of no legal consequence and must be struck off
  • A director may only be held personally liable for a company's decree upon lifting/piercing of the corporate veil, an equitable remedy that must be specifically pleaded

Court orders

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  1. 1.The Notice of Motion dated 16th January, 2024 is struck off
  2. 2.No order as to costs
  3. 3.The Claimant/Decree Holders may file a proper application for consideration by the Court, if they so wish

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 35
  • Civil Procedure ActSection 3A
Jurisdiction invoked
Order 22 Rule 35 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent jurisdiction to enforce its own decree)

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 Limited & another (Cause 1322 of 2016) [2025] KEELRC 2911 (KLR)", Case Analysis (2025). Cause No 1322 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2911/eng@2025-10-24

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