Aseka v Mumias Sugar Company Limited (Miscellaneous Civil Application E056 of 2022) [2022] KEHC 16264 (KLR) (13 December 2022) (Judgment)
Neutral citation:
[2022] KEHC 16264 (KLR)
Republic of Kenya
Miscellaneous Civil Application E056 of 2022
RE Aburili, J
December 13, 2022
Between
Nashon Aseka
Claimant
and
Mumias Sugar Company Limited
Respondent
Judgment
1.The applicant in this case is Nashon Aseka. He has brought these proceedings against the Respondent Mumias Sugar Company Limited (under Receivership) seeking leave of court to continue Kisumu ELRC Cause No 240 of 2018 against Mumias Sugar Company Limited, which is under receivership. He also prays for costs of the application.
2.The grounds upon which the application is predicated are on the face of the application, which grounds are also replicated in the Supporting Affidavit sworn by Nashon Aseka, theapplicant herein on February 15, 2022.
3.In the said grounds and supporting affidavit, the application asserts that he sued the respondent herein vide ELRC Cause No 240 of 2018 at Kisumu and that subsequently, therespondent was placed under receivership before the above suit was prosecuted and therefore the applicant could not prosecute the said suit without leave of court.
4.He deposes that he will be greatly prejudiced if the suit is not prosecuted and that he has brought this application without unreasonable delay. Further, that the application ought to be granted in the interest of equity and justice.
5.Therespondent despite service of the application upon it, there was no response filed to this application.
Analysis & Determination
6.I have considered the application, the grounds and supporting affidavit together with the annextures.
7.I find the issue to be determined to be whether this court should grant leave to the applicant who is the claimant in Kisumu ELRC Cause 240 of 2018 to continue the above suit before the Employment and Labour Relations Court.
8.The application is brought under the provisions of section 560(1) (d) of the Insolvency Act, Rule 10 of the Insolvency Regulations, 2016 and article 159(2) (b) of the Constitution.
9.Undersection 500 of the Insolvency Act:
10.Under section 560 (1) (b) of the Insolvency Act:
11.Section 560A of the Act thus sets out the considerations to take into account on applications for approval to lift moratorium. These include:
12.In Owiti, Otieno & Ragot Advocates v Mumias Sugar Company Limited (Under Administration) [2020] eKLR, the court held that:-
13.In the instant case, it is not disputed that the applicant is a former employee of the respondent and he had initiated proceedings vide Kisumu Employment and Labour Relations Court vide Claim No. 240 of 2018 against the Respondent before the latter was place under receivership and in the said claim before ELRC, the claimant seeks for declarations that his termination was unlawful and he further seeks for special damages of over Kshs 25,000,000.
14.In my humble view, theapplicant/claimant, subject to proof of his claim before the ELRC is a preferential creditor and therefore he has a legitimate interest which should not be overlooked once the company was placed under administration.
15.I am further persuaded that the dispute between the applicant and the respondent can only be resolved through a court process and if approval as sought is not granted, the applicant/claimant stands to suffer greater harm. Granting of leave will enable theapplicant continue prosecuting his suit to ascertain whether his claim for what appear to be his terminal dues is merited or not.
16.For the above reasons, I find this application to be merited. Theapplicant herein Nashon Aseka is hereby granted leave to continue with the legal proceedings against the respondent Mumias Sugar Company Limited (Under Receivership), to prosecute Kisumu ELRC No. 240 of 2018 to its conclusion.
17.I make no orders as to costs.
18.I so order.
Dated, Signed and Delivered at Kisumu this 13th Day of December 2022R. E. ABURILIJUDGE