Miseda v Todays Online Limited & 2 others; Standard Chartered Bank (Garnishee) (Cause 704 of 2010) [2022] KEIC 2 (KLR) (Employment and Labour) (29 September 2022) (Ruling)
Neutral citation:
[2022] KEIC 2 (KLR)
Republic of Kenya
Cause 704 of 2010
J Rika, J
September 29, 2022
Between
David Nelson Miseda
Claimant
and
Todays Online Limited
1st Respondent
Milton Chomba Njanja
2nd Respondent
Loise Wahu Njanja
3rd Respondent
and
Standard Chartered Bank Limited
Garnishee
Ruling
1.Award was made by the court, in favour of the claimant, against the 1st respondent, for the sum of Kshs 2,085,000, on May 20, 2011.
2.11 years later, the award has neither been satisfied, nor appealed against, and overturned on appeal.
3.Instead, as shown in the affidavit of the claimant on record, sworn on July 11, 2021, the 1st respondent sold its assets to Communications Solutions Limited, and did not bother to redress its debt.
4.The claimant made attempt at enforcement of the award, by attaching and selling through auction, a motor vehicle he thought belonged to the 1st respondent.
5.His effort was thwarted by objection proceedings, successfully lodged by Communications Limited.
6.The 2nd and 3rd respondents are directors and shareholders of the 1st respondent. After they sold their business, they moved out of the country, and the claimant’s effort to engage them on enforcement of the award, has not succeeded.
7.The claimant states that the 2nd and 3rd respondents, hold current account number 0150xxxxxxxxx at the garnishee Bank.
8.Through an application dated July 11, 2021, the claimant prays the court to find the 2nd and 3rd respondents liable to satisfy the award, and issue order nisi against the 2nd and 3rd respondents, with regard to the above account.
9.The application came before the court on June 7, 2022. the claimant asked the court to grant order nisi. the respondents were all absent. The garnishee told the court it would make its position known, once the court determined, if garnishee proceedings could validly be taken against the directors, as opposed to their company.
The Court Finds:-
10.The acts of the 2nd and 3rd respondents, in disposing of their business, and placing themselves outside the jurisdiction of the court, and their decision not to honour the award of the court, which they were aware about, and remains in force without satisfaction for 11 years, are circumstances that justify lifting of the corporate veil.
11.These are deliberate acts meant to forestall satisfaction of an award of the court. They are fraudulent acts, meant to dispossess the claimant the benefit of an award, which he was granted by the court more than a decade ago.
12.Section 2 of the Employment Act defines an employer to include agents, foremen, managers or factors of any persons, public bodies, firms, corporations or companies which have entered into a contract of service to employ any individual.
13.The 2nd and 3rd respondents had the decisional control of the 1st respondent and the power to dispose of the business. they can conveniently be deemed as employers to the claimant, in the absence of their company which they have sold, and fled the jurisdiction of the court.
14.The claimant has traced what he considers to be a bank account of the runaway directors, and must be facilitated in proceeding against the said account.
IT IS ORDERED:-a.The 2nd and 3rd respondents shall personally pay the decretal amount due to the claimant, as computed by the claimant.b.Order nisi is granted, directing the garnishee to attach all monies/ debts in current account number 0150xxxxxxxx in the names of the 2nd and 3rd respondent, and to utilize such monies in satisfaction of the sum of Kshs 2,085,000.c.The garnishee shall file its replying affidavit within 7 days of this ruling, and a suitable date for inter parte hearing to be obtained at the registry.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 29TH DAY OF SEPTEMBER 2022.James RikaJudge
