Nyatieno v Vyas Hauliers Limited [2024] KEELRC 1551 (KLR)

Nyatieno v Vyas Hauliers Limited (Cause 52 of 2018) [2024] KEELRC 1551 (KLR) (20 June 2024) (Ruling)

Neutral citation: [2024] KEELRC 1551 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Mombasa

Cause 52 of 2018

AK Nzei, J

June 20, 2024

Between

Josephat Randa Nyatieno

Claimant

and

Vyas Hauliers Limited

Respondent

Ruling

1. Judgment in the suit herein was delivered 9th April 2020 (Ndolo, J) whereby the Claimant was awarded a total sum of kshs. 100,000, costs of the suit and interest. Costs are shown to have been subsequently taxed and certified at kshs. 132,099. 80. The record herein shows that after failed attempts at executing the Court’s decree herein, the Claimant filed a Notice of Motion dated 12/5/2021 seeking the following:-a.that Laxmishanker Vyas and Deepak Laxmishanker Vyas, being directors and shareholders of Vyas Hauliers Limited, the Respondent company herein, do attend Court and be examined as to whether the Respondent judgment debtor has property or means of satisfying the decree herein, and to produce the Respondent’s books of accounts and other documentary evidence showing the same before Court.b.that in default of the said directors complying with the above order, the directors be ordered to personally pay the decretal amount due to the Claimant or to be imprisoned and committed to civil jail for a period not less than six (6) months.c.that costs of the application be provided for.

2. The application is expressed to be brought under Order 22 Rule 35 of the Civil procedure Rules, and is based on the Claimant/Applicant’s supporting affidavit sworn on 12/5/2021. Documents annexed to the said supporting affidavit include this Court’s judgment delivered on 9/4/2020 (Ndolo, J), the decree, a CR 12 on the Respondent company dated 1/12/2020 and the Auctioneer’s letter dated 9/4/2021 stating that the Auctioneers (Trophy Auctioneers) proclaimed the Respondent’s motor vehicles and on going back to remove them, the Auctioneers found that the vehicles had been sold and transferred to a third party.

3. It is deponed in the Claimant/Applicant’s said supporting affidavit that efforts to execute the decree herein by way of attachment and sale of the Respondent’s attachable assets is not possible as the Respondent has changed its name and/or closed down, and that the Claimant does not know any other attachable assets of the Respondent.

4. The Respondent’s CR 12, dated 1/12/2020 and annexed to the Claimant’s supporting affidavit, lists the Respondent’s directors/shareholders as:-a.Laxmishanker Vyasb.Deepak Laxmishanker Vyas.

5. The application is not opposed, either by the Respondent or by its aforenamed directors/shareholders, despite service of the application and appropriate notices on both the Respondent and its said directors/shareholders.

6. In the circumstances, I allow the Claimant/Applicant’s Notice of Motion dated 12/5/2021 in the following terms:-a.The Respondent Company’s Corporate veil is hereby lifted, and personal liability regarding the decree herein is hereby imposed on the Respondent’s directors/shareholders, Laxmishanker Vyas and Deepak Laxmishanker Vyas.b.Warrants of attachment and sale of their personal property in execution of the Court’s decree herein, or any other form of lawful execution of this Court’s decree, shall forthwith issue against the said two directors/shareholders.c.Costs of the application, hereby assessed at kshs. 15,000, shall be paid by the Respondent’s said two directors/shareholders to the Claimant/Applicant.

7. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 20TH JUNE 2024AGNES KITIKU NZEIJUDGEORDERThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.AGNES KITIKU NZEIJUDGEAppearance:-…………………….Applicant……………………Respondent