[2017] KEELRC 1812 (KLR)
The court found that the objector, Vishack Builders Limited, had established its distinct corporate identity through a certificate of incorporation and was not a party to the suit. The similarity in names between the objector and the judgment debtor was insufficient to impute liability, especially in the absence of...
Source-derived case information.
- Citation
- [2017] KEELRC 1812 (KLR)
- Parties
- Applicant: Jackson Omondi Mela; Respondent: Vishak Construction Company Limited; Objector: Vishack Builders Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2410 of 2012
- Procedural Posture
- Objection Application / Ruling on Objection to Attachment
- Outcome
- objection upheld; attachment lifted
- Judges
- DI Wasike
- Legal Topics
- Execution of Decree, Objection Proceedings, Corporate Personality
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Omondi Mela
Applicant
Vishak Construction Company Limited
Respondent
Vishack Builders Limited
Objector
Procedural Posture
Objection Application / Ruling on Objection to Attachment
Legal Issues
- 1 Whether the goods proclaimed for attachment belonged to the objector or the judgment debtor.
- 2 Whether the objector, not being a party to the suit, is liable to satisfy the decree.
- 3 Whether similarity in names between the objector and judgment debtor is sufficient to impute liability.
Ratio Decidendi
The court found that the objector, Vishack Builders Limited, had established its distinct corporate identity through a certificate of incorporation and was not a party to the suit. The similarity in names between the objector and the judgment debtor was insufficient to impute liability, especially in the absence of evidence that the goods belonged to the judgment debtor. The onus was on the claimant to prove that the goods, though found on the objector's premises, belonged to the judgment debtor, which was not done. The court also noted the issue of conflict of interest with the same advocate representing both the objector and the judgment debtor, recommending that this be addressed by...
Court Disposition
objection upheld; attachment lifted
Orders
- The objection is upheld and the attachment is lifted.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE NUMBER 2410 OF 2012
JACKSON OMONDI MELA…………..………………............CLAIMANT
VERSUS
VISHAK CONSTRUCTION COMPANY LIMITED.…........RESPONDENT
AND
VISHACK BUILDERS LIMITED…………….…………….....OBJECTOR
RULING
1. The objector herein by a Motion dated 11th February, 2016 objected to the attachment of its properties pursuant to the decree of Honourable court. (Nduma J).
2. The objection was on grounds that the goods that have been proclaimed belong to the objector and that the objector has never been a party to the present suit therefore not liable to satisfy any order or decree emanating from the suit. In support of the averments concerning the distinction between the objector and the judgement debtor, the applicant attached a copy of certificate of incorporation showing its mane as distinct from that of the judgment debtor.
3. The claimant opposed the application stating in the memo that the same had not been brought in good faith and that no evidence had been tendered by the objector to show the goods proclaimed belonged to it. The claimant further objected to the fact that the firm of Nelko Misati & Co Advocate who have brought the application are the same as the ones who are acting for the respondent/judgement debtor.
4. The purpose of an objection application is to protect the property of the objector from wrongful attachment pursuant to a decree emanating from a suit which the objector was not a party. The goods concerned were proclaimed from the premises which the objector claims belonged to it whereas the claimant avers that the objector had not exhibited any evidence to show the goods proclaimed belonged to it. I tend to think the onus was more on the claimant to ascertain that although the goods proclaimed were found at the objectors premises, they indeed belonged to the judgement debtor.
5. There could be similarity in names between the objector and the judgment debtor but that alone in not enough to impute that the objector and the judgement debtor are one and the same person. This is especially so where the objector has exhibited a certificate of incorporation clearly showing its own distinct corporate identity. On the issue of the same counsel acting the objector as well as the judgement debtor, this is a clear case of conflict of interest which should be taken up with appropriate professional disciplinary body to address and deal with as appropriate. The court would lend its support to such a move in order to discourage unethical practices and restore the dignity of the bar.
6. Concerning the application before me, I will uphold the objection and lift the attachment.
7. There will be no order as to costs.
8. It is so ordered.
Dated at Nairobi this 10th day of February 2017
Abuodha J. N.
Judge
Delivered this 10th day of February 2017
In the presence of:-
……………………………….…for the Claimant and
…………………………….……for the Respondent.
Abuodha J. N.
Judge