[2016] KEELRC 286 (KLR)
The court found that the Objector, Safe Haven t/a Nairobi International School, admitted to being the beneficial owner of Nairobi International School, where the Claimant was employed. This admission established a close nexus between the Objector and the Judgment Debtor. The court held that the Objector could not...
Source-derived case information.
- Citation
- [2016] KEELRC 286 (KLR)
- Parties
- Claimant: Catherine Rotich Holden; Respondent: Board of Governors Nairobi International School; Respondent: Radhika Lee; Applicant: Safe Haven t/a Nairobi International School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1542 of 2013
- Procedural Posture
- Objection Application / Ruling on Objection to Execution
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Execution of Judgments, Objector Proceedings, Beneficial Ownership, Separate Legal Personality
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Rotich Holden
Claimant
Board of Governors Nairobi International School
Respondent
Radhika Lee
Respondent
Safe Haven t/a Nairobi International School
Applicant
Procedural Posture
Objection Application / Ruling on Objection to Execution
Legal Issues
- 1 Whether the Objector has established ownership of the proclaimed property sufficient to nullify the execution process.
- 2 Whether the Objector is a separate legal entity from the Judgment Debtor or a façade for the Judgment Debtor.
- 3 Whether the execution proceedings can lawfully proceed against the proclaimed property.
Ratio Decidendi
The court found that the Objector, Safe Haven t/a Nairobi International School, admitted to being the beneficial owner of Nairobi International School, where the Claimant was employed. This admission established a close nexus between the Objector and the Judgment Debtor. The court held that the Objector could not claim to be a stranger to the proceedings, and the argument that the Respondents were non-existent should have been raised at the main hearing, not at the execution stage. Consequently, the Objector failed to demonstrate that the proclaimed property was not liable to execution, and the application was declined.
Court Disposition
application dismissed
Orders
- The Objector's application is declined.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
CAUSE NO 1542 OF 2013
CATHERINE ROTICH HOLDEN….......…….….……….CLAIMANT/DECREE HOLDER
VERSUS
BOARD OF GOVERNORS NAIROBI
INTERNATIONAL SCHOOL……….….……..1STRESPONDENT/JUDGMENT DEBTOR
RADHIKA LEE………………………………2NDRESPONDENT/JUDGMENT DEBTOR
AND
SAFE HAVEN T/A
NAIROBI INTERNATIONAL SCHOOL………...………………..OBJECTOR/APPLICANT
RULING
1. This application is brought by the Objector seeking orders declaring the proclamation by Domicile Auctioneers on 4th November 2016 unlawful on the ground that the proclaimed property belongs to the Objector and not the Judgment Debtor.
2. The Objector states that it has a legal and equitable right in the property proposed to be auctioned.
3. The application which is supported by the affidavit of Kingsley Makokha is based on the following grounds:
a) The property proclaimed on 4th November 2016 belongs to the Objector;
b) The Objector is not a party to the suit in respect of which the execution proceedings are being carried out;
c) The Respondents/Judgment Debtors do not have any legal or equitable interest in the property proclaimed;
d) The Respondents are a non-existent entity and are unknown to the Objector.
4. In a supporting affidavit and further affidavit sworn by the Objector’s Head of Operations, Kingsley Makokha it is deponed that the Objector is a limited liability company trading as Nairobi International School with Safe Haven being the beneficial owner.
5. The issue for determination in this application is whether the Objector has made out a case for nullification of the execution process already commenced. The Objector’s application is grounded on the assertion that the proclaimed property belongs to it and that it was not a party to the suit giving rise to the execution.
6. In objection proceedings, it is not enough for the Objector to show that it is a legal entity separate from the Judgment Debtor. If a close nexus between the two is established, the Court must satisfy itself that the Objector is not a façade for the Judgment Debtor (see Colour Print Limited v Pre-Press Productions (HCCC No 187 of 2000).
7. The Objector in this application admits that it is the beneficial owner of Nairobi International School where the Claimant was employed as a teacher.
The Court therefore finds no basis for the Objector’s assertion that it is a stranger to these proceedings. The argument that the Respondents are non-existent ought to have been ventilated at the main hearing and not at the execution stage.
8. In light of the foregoing, the Objector’s application is declined with no order for costs.
9. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBITHIS 18THDAY OF NOVEMBER 2016
LINNET NDOLO
JUDGE
Appearance:
Miss Kasira for the Objector
No appearance for the Claimant/Decree Holder