https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2377

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** **ELRC MISC. NO.E014 OF 2025** **E.O RATEMO AND COMPANY ADVOCATES……………………………….APPLICANT** **VS** **SUCHAM INVESTMENT LTD** **T/A AMANI TIWI BEACH RESORT…………………………………………...RESPONDENT** **RULING** Introduction and Background 1. There are two applications for determination in this Cause, both arising from a dispute over advocate-client costs said to be owed by the Respondent, Sucham Investments Limited t/a Amani Tiwi Beach Resort, to the Applicant, E.O. Ratemo & Company Advocates, for legal services rendered in Mombasa ELRC No. E032 of 2023, Kenya Union of Domestic Hotels Educational Institutions & Hospital Workers v Sucham Investments Limited t/a Amani Tiwi Beach Resort. 2. The genesis of the dispute is not seriously in issue. In the underlying employment cause, an ex parte judgment had been entered against the Respondent for a substantial sum, and the Respondent's properties, land parcels LR No. 13442 and LR No. 13443, faced imminent sale in execution. It is common ground that the Respondent's directors, through Ms Grace Mathia of Mathia & Co. Advocates and one Dr Fredrick O. Aoko of Otieno Law Chambers, sought urgent intervention. On the record is an averment, unrebutted in any particularised way, that at a meeting attended by the Applicant, Dr. Aoko, Ms. Mathia and the Respondent's directors and representatives (Mr. Charanjit Singh Hayer, Ms. Kiran Hayer and one Gopi), it was agreed that the Applicant, being Mombasa-based, would take carriage of the urgent application to set aside the ex parte judgment. The Applicant did so, and by an order of this Court dated 30th September 2025, the Respondent was permitted to sell the two parcels of land to satisfy the decree in that cause, with the balance to revert to it — an outcome that, on the face of it, inured to the Respondent's benefit. 3. For those services, the Applicant rendered an Advocate-Client Bill of Costs dated 3rdFebruary 2025, drawn under Schedule VI of the Advocates (Remuneration) Order, 2014, in the sum of Kshs. 3,213,000/-. It is deposed by Ms. Mathia, then acting for the Respondent, that the Bill of Costs together with a Notice of Taxation was served on or about 25th February 2025, prompting calls from the Respondent's representatives and, on 27th March 2025, the filing of a Notice of Appointment of Advocates on the Respondent's behalf. Correspondence exhibited before this Court shows exchanges between Ms. Mathia and the Applicant in which a settlement figure of Kshs. 300,000/- was proposed on the Respondent's instructions, and declined by the Applicant. 4. The Bill of Costs proceeded to taxation before the Deputy Registrar, Hon. L. K. Sindani, who, in a Ruling delivered on 2nd October 2025, recorded that the Bill was unopposed — no response having been filed on record by the Respondent despite service — and taxed it down to Kshs. 1,433,000/-, principally by reducing the instruction fee claimed. A Certificate of Costs issued on 9th October 2025. By an ex parte Notice of Motion dated 16th October 2025, brought under Section 51(2) of the Advocates Act and Rule 7 of the Advocates (Remuneration) Order, the Applicant sought to have the Certificate adopted as a judgment of this Court and a decree issued thereon. The matter came up for directions on 29th October 2025 before Hon. Lady Justice Monica Mbaru, and it is of some significance, for reasons that will become apparent, that the record of that date notes the appearance of “Mr. Ratemo for the Applicant and Mr. Nyaramba for the Respondent.” The Certificate of Costs was thereupon adopted as an order of the Court, and a Decree for Kshs. 1,433,000/together with interest issued accordingly. 5. Execution proved elusive. Warrants of attachment issued, but the auctioneers instructed reported, by letter dated 2nd December 2025, that no attachable assets of the Respondent could be traced, and recommended a change in the mode of execution. It is against this backdrop that the Applicant, on 11th December 2025, filed the first of the two applications now before Court, seeking orders for the oral examination of the directors of Iksat Holdings Limited — a shareholder of the Respondent company — and, in default of a satisfactory account of attachable assets, the lifting of the corporate veil to hold those directors personally liable for the decretal sum. That application is supported by the Supporting Affidavit of Ratemo Enock sworn on 11th December 2025 and a Supplementary Affidavit sworn on 6th February 2026. 6. Before that application could be heard, the Respondent — now acting through newly instructed CM Advocates LLP — moved with its own Notice of Motion dated 26th January 2026, supported by the Supporting Affidavit of Charanjit Singh Hayer, seeking, principally, to set aside the Certificate of Taxation, the Ruling on Taxation, the Decree and the ensuing warrants, or, in the alternative, leave to file a Reference against the Ruling on Taxation out of time under Paragraph 11(4) of the Advocates (Remuneration) Order, together with interim stay of execution. The grounds advanced are, in substance, that no advocate-client relationship or privity ever existed between the Applicant and the Respondent, that the Bill of Costs and the Notice of Taxation were never served, and that the entire taxation and its aftermath proceeded without the Respondent's knowledge, in breach of the rules of natural justice and Articles 47 and 50 of the Constitution. 7. Each side opposes the other's application. The Applicant opposes the Respondent's application of 26th January 2026 by Grounds of Opposition dated 8th February 2026, and that opposition is fortified by the Replying Affidavit of Ms. Grace Mathia, the Respondent's erstwhile advocate, sworn on 23rd February 2026, which controverts the Respondent's account of events in considerable and specific detail. The Respondent, for its part, opposes the Applicant's application of 11th December 2025 through the Replying Affidavit of Charanjit Singh Hayer sworn on 16th January 2026, and filed written submissions in opposition thereto, as well as submissions in support of its own application. It is noted, for completeness, that only the Respondent/Client filed written submissions; learned counsel for the Applicant/Advocate, when the matter came up for that mention, indicated that he would not be filing any. Order of Determination 1. Given the peculiar relationship between the two applications, propriety and logical sequence require that the Respondent's application be canvassed first, notwithstanding that it was filed after the Applicant's. The Applicant's application of 11th December 2025 is, at its core, an application in aid of execution — it presupposes the existence of a valid and subsisting decree, and seeks to unearth assets, or persons, against whom that decree may be enforced. The Respondent's application of 26th January 2026, by contrast, attacks the very foundation on which that decree rests: it says there was never a valid taxation, never a valid Certificate of Costs, and never a valid Decree at all. Execution cannot logically precede validity. A court asked, in the same breath, to aid execution of a decree and to declare that decree void must first resolve the question of validity, for the answer will determine whether there remains anything at all to execute. It would serve neither judicial economy nor doctrinal coherence to examine the directors on the Respondent's assets, or to entertain arguments on piercing the corporate veil, only to find thereafter that the decree said to require satisfaction was a nullity all along. The Court accordingly turns first to the Respondent's application. THE RESPONDENT/CLIENT'S APPLICATION DATED 26TH JANUARY 2026 The Grounds 1. The Respondent's application is founded on the Supporting Affidavit of Charanjit Singh Hayer, a director, and rests on several grounds: that there was no advocate-client relationship or privity of contract between the Respondent and the Applicant, contrary to Section 44 of the Advocates Act; that the signed Bill of Costs was never served on the Respondent at least one month prior to taxation, as required by Section 48(1) of the Advocates Act; that no Notice of Taxation or Application for Judgment was ever served, in violation of Paragraph 11(2) of the Advocates (Remuneration) Order and Articles 47 and 50 of the Constitution; that any engagement of the Applicant was effected unilaterally by Dr. Fredrick O. Aoko, to whom alone the Respondent made payments of approximately Kshs. 250,000/-; and that the Notice of Appointment filed by Mathia & Co. Advocates on 27th March 2025 was itself invalid, having been filed without any board resolution and without the Respondent ever having met, known, or instructed that firm. The Opposition 1. The Applicant opposes the application by Grounds of Opposition dated 8th February2026, contending that it is misconceived, frivolous and an abuse of the process of the Court; that the taxation proceedings were conducted inter partes, with the Respondent having been accorded, and having utilised, a full and fair opportunity to be heard; that no error in principle, illegality, impropriety or miscarriage of justice has been demonstrated on the part of the Deputy Registrar; that the drastic order sought — a de novo taxation before a different Deputy Registrar — is unsupported in the absence of any plea, still less proof, of bias or misconduct; and that any grievance the Respondent may have lies properly in a Reference under Paragraph 11 of the Advocates (Remuneration) Order and not in the present application, which amounts to an impermissible attempt to re-litigate a concluded matter and to delay the Applicant's enjoyment of the fruits of a lawful taxation. Analysis and Determination 1. The Respondent's central complaint — that it was a stranger to the taxation and all that followed — does not survive scrutiny of the record before this Court, and it is convenient to begin there. It is not contested, indeed it cannot be, that the Respondent was represented in the very proceedings that culminated in the conversion of the Certificate of Costs into the Decree it now impugns: the record of 29th October 2025 expressly notes the appearance of counsel “for the Respondent” at that hearing, alongside counsel for the Applicant, before Hon. Lady Justice Monica Mbaru. A party that appears, by counsel, at the hearing which adopts a certificate as judgment and issues a decree thereon cannot, in the same breath, be heard to say that the proceedings leading to that very decree proceeded entirely without its knowledge or involvement. Whatever may be said of the earlier taxation before the Deputy Registrar, it cannot be said of the proceedings before the Judge that the Respondent was a stranger to them. 2. This finding is reinforced by the unrebutted account of Ms. Grace Mathia, the Respondent's outgoing advocate, whose Replying Affidavit sworn on 23rd February 2026 sets out, with a degree of particularity the Respondent's own affidavit conspicuously lacks, a course of dealing extending back to about 2021 across several matters, instructions received by email, telephone and physical meeting from named directors of the Respondent, service of the very Bill of Costs and Notice of Taxation the Respondent denies ever receiving, a request that the Respondent advance Kshs. 100,000/- to defend the bill, and sustained negotiation — on the Respondent's own instructions — of a settlement figure of Kshs. 300,000/-, communicated to the Applicant in correspondence annexed to her affidavit. It bears noting that this is not the account of a stranger volunteering opinion; it is the sworn testimony of the very advocate said to have acted without instructions, given in direct response to an application that impugns her professional conduct, and it stands uncontroverted by any further affidavit from the Respondent addressing its specifics. Where a deponent's account of a professional engagement, replete with dates, sums and named intermediaries, goes unanswered save by a bare and general denial sworn before that detailed account was even filed, the Court is entitled to, and does, prefer the particularised version. 3. This is, in essence, a question of ostensible or apparent authority, a doctrine of longstanding which holds that where a principal — including a corporate principal, which can act only through natural persons — permits its directors or senior officers to hold themselves out, and to be treated by third parties, as possessed of authority to instruct and deal with an advocate, the principal will ordinarily be bound by acts done within the scope of that apparent authority, whatever the true state of internal instructions may have been (see, by analogy, the statement of principle in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480, consistently applied by courts in this jurisdiction). On the material before this Court, Ms. Mathia dealt throughout with the Respondent's own directors, Mr. Charanjit Singh Hayer and Ms. Kiran Hayer, who negotiated the settlement figure she deposes to and who, on the Applicant's own exhibited correspondence, continued as late as November 2025 — after judgment on the certificate had already been entered — to acknowledge the debt and to ask only for time to pay (“we have never denied our commitment to pay... we need time and we address the fees”). A company that engages with counsel through its directors over an extended period, negotiates a settlement figure through them, and only disowns that engagement once execution becomes imminent, cannot be permitted to resile from the ostensible authority it allowed, and indeed encouraged, its own officers to exercise. If, as the Respondent now suggests, Ms. Mathia in fact acted for it without proper authority, or worse, fraudulently, that is a serious allegation which, had it any real substance, one would ordinarily expect to be the subject of a complaint to the Law Society of Kenya or the Advocates Disciplinary Tribunal, the bodies properly constituted to investigate and pronounce upon such professional misconduct. No such complaint has been placed before this Court, and none is even averred to have been lodged. This Court is not the forum in which to launder what is, on this record, an unproven and belated allegation against an advocate's professional integrity, deployed collaterally to escape a debt. 4. It follows that the Court finds little purchase in the Respondent's reliance on the absence of a board resolution authorising Ms. Mathia's engagement, and in the authorities cited for that proposition, among them Bugerere Coffee Growers Ltd v Sebaduka & Another [1970] EA 147 and Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd [2000] eKLR. Those authorities are concerned with the institution of substantive proceedings in a company's name by a person purporting to act as its agent in the total absence of any sanction, actual or apparent — the paradigm case being a company secretary who sues on the company's behalf without reference to the board at all. That is not this case. Here, the company's own directors, the very organs through which, as Bugerere itself recognises, a company acts, dealt directly and repeatedly with counsel on an incidental matter — the defence and negotiation of a bill of costs arising from litigation the company was already seized of. To require a formal board resolution for every such incidental instruction to counsel, failing which the company may simply disown years of dealings, would place an impossible burden on legal practitioners and does violence to ordinary commercial reality. The Court finds these authorities, and the submissions built upon them, to be of no material relevance to the peculiar facts of this matter, and declines to be guided by them here. 5. Turning to the challenge to the taxation itself, the Court is unable to accede to it, for a more fundamental reason going to jurisdiction. The Advocates (Remuneration) Order prescribes, at Paragraph 11 thereof, a specific and self-contained mechanism by which a party aggrieved by a decision of a taxing officer may seek redress: objection within the stipulated time, a request for reasons, and thereafter a Reference to a Judge, itself subject to strict timelines. It is well established that this mechanism is not merely one avenue among several, but the exclusive route by which a taxation may be impugned, and that a party who has not invoked it cannot achieve the same end by way of an ordinary application dressed up in the language of nullity, review or setting aside (see Joreth Limited v Kigano & Associates [2002] 1 EA 92). The jurisdiction of this Court over a completed taxation is, in that sense, appellate in character, and can only be invoked in the manner, and within the time, that the Order itself provides. 6. On the record before this Court, the Respondent did not, at any point material, lodge an objection to the Deputy Registrar's Ruling, did not request reasons, and did not file a Reference, timeously or otherwise. It instead allowed the Ruling on Taxation to stand unchallenged for nearly four months, and the Decree founded upon it to stand unchallenged for nearly three, before filing the present application, which is framed principally as one for review and setting aside under the general provisions of the Civil Procedure Rules and the Court's inherent jurisdiction, with resort to Paragraph 11(4) offered only as an afterthought, in the alternative, and without any of the particulars — an explanation for the delay grounded in fact rather than bare assertion, or a demonstrable arguable case on the merits of the taxation itself — that would ordinarily accompany a genuine application for extension of time. Having elected not to engage the machinery the rule-maker has provided for challenging a taxation, and having failed to demonstrate any proper basis for extending time to do so now, the Respondent cannot be permitted to achieve collaterally, through this application, what it did not pursue directly and in time. This Court, sitting on this application, has no jurisdiction to set aside the taxation as sought. 7. The Respondent's submissions, filed at some length, dwell heavily on questions of service, privity, and the authentication of electronic evidence, but they do not meaningfully grapple with the Supplementary Affidavit of Ratemo Enock sworn on 6th February 2026, filed, it will be recalled, in support of the Applicant's own application. That affidavit — sworn evidence, and not mere assertion in grounds of opposition — exhibits correspondence and a WhatsApp exchange in which one of the Respondent's own representatives, faced with the taxation notice, instructed that “Fred” (Dr. Aoko) “handle this,” and confirms that all communication in the matter passed through email addresses on the Respondent's own corporate domain. The Court accepts that grounds of opposition, in their proper and technical sense, ought ordinarily to be confined to points of law and to matters not genuinely in dispute, and are no substitute for a replying affidavit where facts are contested. But that is a submission about form, and it cannot be used to blind the Court to substance where, as here, both applications arise from the same transaction and fall to be determined contemporaneously. Taking, as the Court is entitled to, a holistic view of the whole of the material properly before it — which includes not only the Applicant's Grounds of Opposition but also the sworn Supporting and Supplementary Affidavits filed in the companion application, and Ms. Mathia's affidavit — the factual matters set out in those Grounds of Opposition are amply borne out and bolstered by admissible evidence, even if the Grounds of Opposition standing alone would not have sufficed. 8. For all the foregoing reasons, the Court finds that the Respondent's application dated26th January 2026 lacks merit in its entirety. The Respondent was, on the evidence, represented — through its own directors and its own instructed advocate — at every material stage; the challenge to the underlying taxation is, in any event, incompetently before this Court for want of compliance with the exclusive procedure prescribed by Paragraph 11 of the Advocates (Remuneration) Order; and no sufficient cause, factual or legal, has been shown to disturb the Certificate of Taxation, the Ruling on Taxation, or the Decree issued thereon. The application is accordingly dismissed, with costs to the Applicant. THE APPLICANT/ADVOCATE'S APPLICATION DATED 11TH DECEMBER 2025 1. It follows from the dismissal of the Respondent's application that the Decree of 29thOctober 2025, for Kshs. 1,433,000/- together with interest, stands as a valid and subsisting judgment debt, unset aside and unsatisfied. The Applicant, as the holder of that Decree, is entitled to pursue all lawful modes of its execution, and it is against the failure of conventional execution — the auctioneers' unrebutted report of 2nd December 2025 that no attachable assets of the Respondent could be traced — that the Applicant's own application must now be considered. The Grounds 1. By its Notice of Motion dated 11th December 2025, supported by the Supporting Affidavit of Ratemo Enock and, later, his Supplementary Affidavit, the Applicant seeks orders that Charanjit Singh Hayer, Harjit Kaur Hayer and Kirandip Hayer — directors of Iksat Holdings Limited, itself a shareholder of the Respondent company — appear for oral examination on the Respondent's assets and be compelled to produce books of account, bank statements and tax returns, and that, should the Respondent be found to have no attachable property or to be a mere façade employed to defeat the course of justice, this Court lift the veil of incorporation and hold those directors personally liable for the decretal sum. The Opposition 1. The Respondent opposes this application through the Replying Affidavit of Charanjit Singh Hayer sworn on 16th January 2026 and written submissions dated 25th February 2026. It contends that Iksat Holdings Limited is a distinct legal entity holding but a single ordinary share in the Respondent, that no order lifting any veil has ever been sought against it or granted, that no fraud or abuse of the corporate form has been demonstrated as the law requires, and that the Applicant's evidence of instructions — the exhibited emails and the WhatsApp message directing that “Fred” handle the matter — shows, if anything, delegation to Dr. Aoko and not authorisation of the Applicant, such that the onus resting on an advocate who asserts a retainer to prove it has not been discharged. Analysis and Determination 1. The starting point must be the doctrine itself. Kenyan law, following Salomon v Salomon& Co Ltd [1897] AC 22, recognises a company as a legal person distinct from its shareholders and directors, and the corporate veil is not lightly pierced. Mere inability of a company to pay its debts, or the fact that its directors also control an associated entity, does not, without more, justify disregarding the separate legal personality the law confers (Corporate Insurance Co Ltd v Savemax Insurance Brokers Ltd [2002] EA 41). The veil will, however, yield in exceptional circumstances — where the company is shown to be a mere façade concealing the true facts, where it is used as a vehicle for fraud, or where insistence on the fiction of separate personality would, in the circumstances, sanction fraud or promote injustice (Adams v Cape Industries Plc [1990] Ch 433, applied in this jurisdiction in, among others, Kangethe v Ziwa Garments and Apparels Ltd [2023] KEELRC 2921 (KLR)). The question, then, is whether the material before the Court, properly and holistically considered, discloses circumstances of that exceptional character, or at the least a sufficient basis to warrant the disclosure that would allow that question to be finally answered. 2. The Court is satisfied that it does. First, and decisively, the Respondent's own application to set aside the Decree — the very foundation of the debt sought to be enforced — has failed, for the reasons already given; the Respondent is left owing an unsatisfied decretal sum which its own directors, in correspondence as recent as November 2025, expressly acknowledged (“we have never denied our commitment to pay”) while asking only for indulgence. Second, it is deposed, and not seriously disputed, that Charanjit Singh Hayer and Kirandip Hayer are directors both of the Respondent company and of Iksat Holdings Limited, its shareholder, and that the affairs of both entities, together with those of other companies within what the record repeatedly and without contradiction calls the “Hayer Group,” are conducted through common email domains and common personnel, including one “Gopi,” whose direction that “Fred handle this” while its principal was “not around” speaks to a fluidity of control across the group that sits uneasily with the strict corporate separateness the Respondent now invokes as a shield. 3. Third, and most tellingly, the conduct of the Respondent and its directors across the lifeof this dispute discloses a pattern the Court can only describe as evasive. Having, through Ms. Mathia and directly, negotiated a settlement of the very bill it now says it never contracted for; having made payments — on its own account, some Kshs. 250,000/- — towards fees it now disclaims in their entirety; having appeared, by counsel, at the hearing that converted the certificate into the Decree it now says it knew nothing of; and having, as late as November 2025, acknowledged the debt and sought only time to pay, the Respondent, the moment attachment became a real prospect, instructed new counsel to swear that no relationship with the Applicant had ever existed at all, that its own advocate of some years' standing had acted throughout without authority and, it is implied, dishonestly, and that the very directors who conducted these dealings had no knowledge of them. Its explanations have shifted from an outright denial of any engagement, to an admission of substantial payments routed through an intermediary, to a technical objection grounded in the separate personality of a shareholder holding a single share. This is not the conduct of a company genuinely and consistently unaware of a debt; it is the conduct of one which, having exhausted the utility of negotiation, now seeks to use the technical apparatus of corporate separateness — asserted only after execution loomed — to place its assets, through its controlling directors, beyond the reach of a decree it does not seriously dispute is owing. 4. The Court is not, at this stage, called upon to make a final and irrevocable pronouncement piercing the veil in vacuo; the application itself is framed, sensibly, in two stages — oral examination and disclosure first, with the lifting of the veil to follow only in default of a satisfactory account of attachable assets, or upon a finding that the corporate form is being used as a façade. It is that structure, and no more, that the Court now sanctions. On the material presently before it, the Court finds ample and sufficient justification to grant the orders sought: the pattern of common directorship, common control, prior acknowledgment of the debt, and the evasiveness that has characterised the Respondent's conduct once enforcement drew near, together furnish sufficient grounds to warrant both the oral examination and disclosure orders sought, and to hold that, should it emerge from that process that the Respondent company has no attachable assets or is being used as a mere instrumentality to defeat a lawful debt, the corporate veil shielding Charanjit Singh Hayer, Harjit Kaur Hayer and Kirandip Hayer from personal liability for the decretal sum shall, in that event, stand lifted. 5. The Respondent's objection that Iksat Holdings Limited cannot be held liable as a nonparty, absent joinder, misapprehends the application as framed. The Applicant does not seek to enforce the Decree against Iksat Holdings Limited as a corporate entity at all — a position the Supplementary Affidavit makes explicit — but against the natural persons who direct both it and the Respondent, and who are, by the very terms of the application, already before this Court for the purpose of oral examination as officers of the judgment debtor. The objection, though carefully argued, does not answer the application actually made, and does not avail the Respondent. 6. For these reasons, the Applicant's application dated 11th December 2025 succeeds. DISPOSITION 1. Upon consideration of the foregoing, the final orders of the Court are as follows: (a) The Respondent's Notice of Motion dated 26th January 2026 is dismissed in its entirety, with costs to the Applicant. 2. The Applicant's Notice of Motion dated 11th December 2025 is allowed as prayed. Charanjit Singh Hayer, Harjit Kaur Hayer and Kirandip Hayer shall appear before this Court for oral examination on the assets of the Respondent company, and shall, in advance of such examination, furnish the Applicant with the books of account, bank statements, annual tax returns, tax payment records and audited accounts of the Respondent company for the period specified in the application. 3. In default of such attendance, or of the production of records sufficient to satisfy the Court that the Respondent company holds attachable assets capable of meeting the decretal sum, or upon a finding that the Respondent company is being used as a façade to defeat the course of justice, the corporate veil shielding the said directors from personal liability shall stand lifted, and they shall be personally liable for the decretal sum herein. 4. The costs of the Applicant's application dated 11th December 2025 shall likewise be borne by the Respondent. 5. The persons named in [b] above shall appear before this Court on 7th October 2026, for the purpose mentioned therein. 29. Orders accordingly. **DATED, SIGNED AND DELIVERED AT MOMBASA THIS 7TH DAY OF AUGUST, 2026.** **OCHARO KEBIRA** **JUDGE**