keelrc-2015-01212

Applicant relied on thedecided cases of In Re Standard Ltd Ex Parte TricomPaper International BV [2002] KLR 644, MohamedAdan Molly v Linksoft (K) Ltd & Another [2013] eKLR,K-Rep Bank v Basilio Pascal Kiseli & 2 Others [2012]eKLR, Equitorial Commercial Bank Ltd v BubaconAgencies Ltd & 3 Others [2013] eKLR all supporting theposition the Objector/Applicant had taken. 4. The Claimant/Decree Holder did not file submissions inopposition and thus recourse is to the Afidavit and Notice ofIntention to proceed with Execution filed by the Claimant. Inthe Afidavit sworn on 21st May 2012, the Claimant/DecreeHolder deponed that the Objector herein and theRespondent/Judgment Debtor are one and the same person.It was further deponed that the Judgment Debtor and theObjector had represented their name as Kiambu Club in theletter of appointment and subsequent correspondence thenthey could not avoid execution of judgment by claimingotherwise. 5. The cases cited by the Objector are a treatise on legalentities. In the case of Standard Ltd ex parte TricomPaper (supra) Ringera J. (as he then was) held that “alimited liability company is a legal person and there is a neatdifierence in law between it and its shareholders or directorsor business. The East African Standard being a businessname is nothing in law and if by any stretch of theimagination it was anything it is wholly difierent from theStandard Limited, the company that owns the businessname.” I agree that in company law there is a distinctionbetween a business name and a limited liability company. 6. In the present case, the Respondent herein Kiambu Clubupon being sued filed a Memorandum of Defence on 26th January 2011. In the defence the Respondent admitted thatit had employed the Claimant as a club manager (paragraph3 of the defence) and the only dichotomy is the averments inparagraph 2 of the Memorandum of Defence where theRespondent averred as follows: The description of theRespondent is denied and the Respondent shall seek to havethe Claim struck ofi. The record does not bear out anattempt to have the Claim struck ofi. 7. The Respondent it would seem held out to be an entity thatcould sue and be sued. There is no averment in the defencethat holds the Respondent as an entity incapable of suing orbeing sued in its own name. The acquiescence by theRespondent to the suit estops the Respondent from raisingthe issue of wrong legal entity. 8. The Employment Act is a complete code and provides thatan employer is any person, public body, firm, corporation orcompany who or which has entered into a contract of serviceto employ any individual and includes the agent, foreman,manager or factor of such person, public body, firm,corporation or company. The statute requires an employer toprovide a contract which must contain the followingparticulars inter alia – the name and sex of the employee,the name of the employer and the hours and place of work.The employer, in this case the Objector, was required in law to provide these particulars. The Objector instead gave itselfthe business name as employer in the contract dated 5thSeptember 2005 it cannot resile from it. It will not run awayfrom it. There is also no denial of service upon the Objectoras the Chairman of the Objector is the one who gaveinstructions to counsel to defend the suit as deposed to bythe Advocate for the Respondent David Njeru Nyaga. 9. The Objector it would appear is the legal person theRespondent represented using the name Kiambu Club. Fromthe authorities cited and legal precedent, it is clear the thereis a distinction between the cases cited and the presentcase. The challenge mounted could count for something incontract law or in the arena of commercial claims. Howeverin this Court granted the provisions of the Employment Actand the conduct of the Respondent which is a factor of theObjector there is estoppel in pais. The Respondent cannotassert otherwise as the Respondent is prevented by itsprevious conduct during the employment and consequenttermination and now execution held itself out as the correctparty. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1212/eng@2015-01-13 2

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10. The Application is thus devoid of merit and is dismissedwith costs to the Claimant/Decree Holder. All the costsordered by Njagi Marete J. be paid forthwith as well. 5 | Page Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF JANUARY 2015 NZIOKI WA MAKAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1212/eng@2015-01-13 3

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