https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1412

Karuga v Africastalking (K) Limited & another (Employment and Labour Relations Petition E157 of 2025) [2026] KEELRC 1412 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1412 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition E157 of 2025 JW Keli, J May 15, 2026 Between Kevin Murimi Karuga Petitioner and Africastalking (K) Limited 1st Respondent Samuel Nderitu Gikandi 2nd Respondent Ruling 1.The Application dated 27th February 2026 by 2nd Respondent by way of Notice of Motion sought the following Orders:1.Spent.2.The Replying Affidavit dated 5th November 2025 purportedly filed on behalf of the 1st Respondent's be struck out for want of proper corporate authorization.3.The 1st Respondent be prohibited from being represented by M/s Khan & Associates Advocates or any other law firm without a duly passed Board resolution.4.This Honourable Court cite Paul Wamboka Wamalwa for contempt of court and make a formal finding that the conduct disclosed constitutes offences under Section 108 and Section 97 of the Penal Code (Cap 63 Laws of Kenya) and the Oaths and Statutory Declarations Act (Cap 15 Laws of Kenya).5.Costs be awarded to the Applicant.6.Any other order the Honourable Court deems just. 2.Grounds of the applicationa)The Replying Affidavit was purportedly sworn by Paul Wamboka Wamalwa, who has never been appointed chief executive officer of the 1st Respondent. He has no authority, express or implied, to act on behalf of the company in these proceedings.b)The filing of an affidavit by a person who is not duly authorized to act for the company amounts to a fundamental irregularity and is contrary to established principles of corporate law.c)There exists no Board resolution authorizing the filing of the affidavit or instructing the law firm of Khan & Associates to represent the 1st Respondent.d)A company acts through its organs-the Board and officers duly authorized by it, and litigation by a company is not personal litigation by an individual, and a deponent or advocate cannot act without formal authorization.e)The act of filing an affidavit without authorization is not only altra vires the powers of the deponent and constituting an abuse of the court process, but also undermines the integrity of judicial proceedings, causes prejudice to the Applicant, and wastes judicial time.f)The actions of Paul Wamboka Wamalwa constitute criminal impersonation under Section 97 of the Penal Code (Cap 63, Laws of Kenya), which Section criminalizes assuming a false identity or pretending to hold an office with the intent to deceive or gain advantage, and by filing the affidavit purporting to act as CEO, the deponent not only committed a procedural irregularity but also engaged in a criminal act, exposing himself to potential prosecution.g)Jurisprudence consistently affirms that a company may only litigate through its duly authorized organs, with directors and officers acting strictly in accordance with the Articles of Association and valid Board resolutions, thereby ensuring that court actions are legitimate and binding, the company is protected from unauthorized litigation, and proceedings reflect the true corporate will of the entity.h)The Court has powers to strike out documents or pleadings filed in such circumstances to uphold proper administration of justice and allowing the affidavit to stand would contravene established law and prejudice the Applicant, who has a right to have the matter decided on properly authorized pleadings. 3.The 2nd respondent swore an affidavit dated 27th February 2026, in support of the application, annexed minutes of the annual general meeting of the 1st respondent held on 27th June 2023(as GIK-1), to prove that the deponent of the Replying affidavit filed on behalf of the 1st respondent, Paul Wamboka Wamalwa, was not the CEO. Decision 4.Minutes of the Board amend of 27th June 2023 amend to the meeting indicates Paul Wamalwa was voted in as director to the board to represent the ordinary shareholders. The court noted that in the said meeting, it was acknowledged that Wamalwa was the CEO designate and was performing the roles of the CEO awaiting formal appointment by the Board. 5.Wamalwa is thus not a stranger to the company and has authority as a Director to represent the company in its proceedings. It occurred to the court that there is infighting among directors, as seen, they are in the High Court. Wamalwa described himself as CEO of the 1st Respondent and the annual General Meeting minutes state he was the CEO designate. The Applicant does not say who is the CEO if not Wamalwa. The minutes produced were of 2023. That is not current information. He who alleges proves. The court has no basis to doubt the averments in the replying affidavit of Wamalwa that he was the CEO of the 1st respondent. 6.The application is held to lack merit and is dismissed with costs in the cause. Mention 4th June 2026 for hearing direction. 7.It so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026.JEMIMAH KELI,JUDGE.In the presence of:Court Assistant: Otieno1st Respondent : OgweroApplicant/2nd Respondent: MwachofiPetitioner: absent