[2004] KEHC 2309 (KLR)
The court found that the 1st defendant admitted owing the plaintiff US$6,822, and there was no triable issue regarding this sum. Accordingly, summary judgment was entered for this amount against the 1st defendant, to be paid in two equal instalments. The claim against the 2nd defendant was misconceived, as company...
Source-derived case information.
- Citation
- [2004] KEHC 2309 (KLR)
- Parties
- Plaintiff: Charles Asina; Defendant: Shipmarc Ltd.; Defendant: J.H. Niesen
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 40 of 2003
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion for Summary Judgment
- Outcome
- Partial summary judgment for the plaintiff; balance of claim to proceed to trial.
- Legal Topics
- Summary Judgment, Admission of Liability, Company Director Liability, Employment Termination Benefits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Asina
Plaintiff
Shipmarc Ltd.
Defendant
J.H. Niesen
Defendant
Procedural Posture
Civil Suit / Ruling on Notice of Motion for Summary Judgment
Legal Issues
- 1 Whether summary judgment should be entered for the plaintiff for the sum admitted by the defendants.
- 2 Whether the 2nd defendant, as a director, is properly joined as a party to the suit.
- 3 Whether the agreement (CA-3) entitles the plaintiff to double payment for certain months.
Ratio Decidendi
The court found that the 1st defendant admitted owing the plaintiff US$6,822, and there was no triable issue regarding this sum. Accordingly, summary judgment was entered for this amount against the 1st defendant, to be paid in two equal instalments. The claim against the 2nd defendant was misconceived, as company law principles do not support personal liability of directors in such circumstances. The balance of the plaintiff's claim, particularly regarding the alleged double payment for certain months under the agreement (CA-3), raised triable issues and was reserved for trial. Costs were awarded to the plaintiff as the admitted sum had not been paid prior to the ruling.
Court Disposition
Partial summary judgment for the plaintiff; balance of claim to proceed to trial.
Orders
- Judgment entered for the plaintiff against the 1st defendant for US$6,822, payable in two equal instalments.
- The balance of the plaintiff's claim to proceed to trial.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
APPELLATE SIDE
CIVIL SUIT NO. 40 OF 2003
CHARLES ASINA …………………………………………………… PLAINTIFF
VERSUS
SHIPMARC LTD. & J.H. NIESEN …………………………….………… DEFENDANTS
Coram: Before Justice Mwera
Magolo for the plaintiff/Applicant
Kinyua for the Defendants/Respondents
Court Clerk - Sango
R U L I N G
In the plaintiff’s notice of motion dated 1-4-2003 which was brought under O 35 r. 1 O 22 r. 6, ) 50 r 1 and S. 3A Civil Procedure Act, there are prayers in the main:
(1) That summary judgement be entered for the plaintiff against the defendants for a sum of US$23,248 which the defendants offered and which they admitted was due and owing to the plaintiff and
(2) That the balance of the claim to proceed to trial.
Mr. Magolo argued this application making reference to the plaintiff’s own affidavit in support carrying some exhibits. Particular emphasis was laid on annexture CA – 3 which, it was claimed, was written and signed by both sides on 1-11-02 giving to plaintiff a total of the sum claimed on the termination of his services with the 1st defendant. We shall revert to this document presently.
Mr. Magolo added that a sum of $2500 was paid to the plaintiff on 13. 12. 02 and thus it should be deducted from the claimed sum. Mr. Kinyua for the defendants began by resisting the prayers sought firstly that the 2nd defendant was only a director of the 1st defendant who was the plaintiff’s employer and thus he wondered why this suit was being maintained against him when the employer, the 1st defendant had been sued. Mr. Magolo did not wish to respond to this line of argument whereupon the court concluded that his clients claim against his employer and its director jointly and severally was misconceived. And it is indeed in the principles of company law being trite on such matters.
As for whatever the 1st defendant owed the plaintiff, Mr. Kinyua conceded that as per the replying affidavit, and having calculated other liabilities of the plaintiff to the 1st defendant, he was owed $6822 which could be liquidated at $1500 per month until payment in full. He disputed that in all $23248 less $25000 was owed. That the “agreement” of 1-11-02 seemed to give the plaintiff the October and November 2002 salary twice over, first as incorporated in the sum of $20032 (@ $1609 per month) and then in addition to the 4 installment payments.
After hearing both sides this court was satisfied that as of now judgment be and is entered here in the sum of $6822, against the 1st defendant as admitted. It shall be paid in two equal instalments.
The balance of the claim in the plaint, and that must incorporate what the plaintiff has raised in this application but was not granted, will await trial. One reason for this is that the “agreement” (CA 3) appears to give the plaintiff payment of twice over each month of November and December 2002. While Mr. Magolo claimed that this was so in lieu of notice to terminate services CA 3 does not say so, Mr. Kinyua disputes such a state of things.
Accordingly the plaintiff succeeds in getting judgement for $6822 to be paid in two (2) instalments but the rest of claim will proceed to trial. Had the 1st defendant offered/paid this sum since it was admitted as at 21. 5.03, this court would not have condemned it in costs. Otherwise costs go to the plaintiff.
Delivered on 26th May 2004.
J.W. MWERA
JUDGE