[2022] KEHC 681 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE NO. 174 OF 2017

GEORGE MUDHUNE............................................................................PLAINTIFF

VERSUS

PHILIPS EAST AFRICA LIMITED.................................................DEFENDANT

(by original action)

PHILIPS EAST AFRICA LIMITED...................................................PLAINTIFF

VERSUS

GEORGE MUDHUNE.................................................................1ST DEFENDANT

CONSIGNIA EAST AFRICA LIMITED.................................2ND DEFENDANT

JUDGMENT

1) George Mudhune, the plaintiff herein filed an action against Philips East Africa Ltd, the defendant herein vide the plaint dated 7th August 2017 whereof he sought for judgment as follows:

a) A declaration that the continued harassment and repeated threats on false accusations without any reasonable cause are part of the law chain of excesses of abuse of the power and the law and are excessive, oppressive and highhanded violation of the plaintiff’s fundamental right to the protection and benefit of the law and the freedom from cruel, inhuman and degrading treatment guaranteed by Articles 27(1), 28 and 57 (c) of the Constitution of Kenya, 2010.

b) An order of permanent injunction restraining the defendant, whether by itself or its servants or agents or otherwise, frim doing the following acts or any of them, namely from initiating, continuing, engaging in or permitting any action that would interfere with the plaintiff’s good name and reputation in any manner howsoever.

c) An order of permanent injunction restraining the defendant, whether by itself or its servants or agents or otherwise from publishing, printing, broadcasting, distributing defamatory words about the plaintiff and/or discussing in any media matters touching on the plaintiff’s resignation from the defendant’s employment.

d) Such orders or further orders as this honourable court may deem fit to grant.

e) Costs of this suit and interest thereon.

2) The defendant filed a defence to deny the plaintiff’s claim and also filed a counter-claim where of it sought for judgment against the plaintiff as follows:

a) A declaration that consignia East Africa limited, the 2nd defendant in the counterclaim (consgnia)’s veil of incorporation is lifted for the purpose of this suit.

b) The sum of ksh.72,329 being the service fees intended to be paid to Manmade Creatives limited.

c) The sum of ksh. 266,050. 80 being the administrative fees paid to Consignia for fees to be paid to manmade Creatives limited.

d) The sum of USD 32,320 being the monies paid to Consignia for administrative and service fees to be paid to kiboko Enterprises Limited.

3) On 15th July 2021 the suit proceeded for hearing exparte of the defendant’s counter-claim, when the plaintiff and Consignia East Africa Ltd failed to attend court. The defendant summoned the evidence of Dr. Muthoni Ntonjira (DW 1) in support of its counter-claim. This court dismissed the plaintiff’s claim for non-attendance on the part of the plaintiff.

4) It is the evidence of Dr. Muthoni Ntonjira (DW 1) hat she has been the country manager of the defendant (Philips EA Ltd) from 4th March 2020 upto date. DW 1 stated that the plaintiff was a general manager of the defendant but he is no longer an employee of the plaintiff having resigned on 19th May 2017.

5) DW1 also stated that Consignia E. A. Ltd, the 2nd defendant herein was the 1st defendant’s marketer. She pointed out that the plaintiff was a director of the 2nd defendant with 60% shareholding but resigned as a result of investigations over to conflict of interest involving the plaintiff, Philips E. A. Ltd and his directorship in the 2nd defendant.

6) DW 1 further stated that Kiboko Enterprises Ltd had been engaged by the 2nd defendant as a marketing agent on behalf of the 1st defendant. She also stated that Manmade Creative Ltd was engaged by the 2nd defendant for a marketing promotion on behalf of the defendant.

7) DW 1 produced purchase orders and invoices from the 2nd defendant to the 1st defendant for provisions of services. She said that they were paid. Kiboko Enterprises Ltd denied receiving payments. The 1st defendant’s witness further claimed that it wrote to the plaintiff about that and demanded for payment of USD54,000 which the 1st defendant now counter-claims.

8) It is also stated by DW 1 that upon his resignation, the plaintiff continued to represent himself as an employee of the 1st defendant and met third parties including officials of Kenya premier League and purported to negotiate with them as a representative of the defendant.

9) DW 1 further stated that during the plaintiff’s employment with the 1st defendant, the latter procured certain marketing services from Kiboko Enterprises Ltd through Manmade Creative Ltd through Consignia E. A. Ltd, the 2nd defendant.

10) It is also the evidence of DW 1 that Philips E. A. Ltd would receive marketing services from Manmade Creative Ltd and Kiboko Enterprises who would in turn invoice for the services through Consignia E. A. Ltd which in turn would charge administrative fee to be paid by the defendant together with the service fees for the services provided and thereafter pay the service fees to Kiboko Enterprises Ltd and Manmade E. A. Ltd.

11) At the close of evidence, one main issue arose for determination, that is, whether the 1st defendant is entitled to the reliefs sought in the counter-claim? It is the submission of the 1st defendant that its counter-claim was proved by the evidence tendered by DW 1. I have considered the evidence of DW 1 and critically examined the credibility of the same. I find that the evidence DW 1 did not establish to the required standards in Civil cases the counter-claim. There was no credible evidence to show that the plaintiff acted in a manner that the corporate veil of the 2nd should be lifted.

12) In the end, the counter-claim is found to be without merit. The counter-claim is hereby dismissed. In the circumstances ofthis case, a fair order on costs is to order which I hereby do that each party bear their own costs.

Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 17th day of March, 2022.

………….…………….

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the Plaintiff

……………………………. for the Defendant