The Commercial and Tax Division of the Milimani High Court has received a notice of liquidation of Spectre International Company Ltd Staff Provident Fund.
The notice was presented through a petition prepared by Miller and Company Advocates, initiated its hearing yesterday.
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It cites the Specter International Company Limited Staff Provident Fund, the minimum funding level set by the Retirement Benefits Authority (RBA), the winding up of schemes according to the Regulations of 2000, and the RBA Act, No. 3 of 1997.
Additionally, the provisions of the Company Act, No. 17 of 2015, and stipulations from the Insolvency Act of 2015 are also listed in the petition.
The Specter Staff Provident Fund was established under an irrevocable trust dated 26 May 2006 and registered by the Retirement Benefits Authority, (RBA).The litigation could see the Fund declared either technically insolvent or otherwise see the Court uphold earlier ruling that it remits Sh18,965,797 deduction from 166 employees in Sacco contributions.
The firm, based in Kisumu and associated with Opposition leader Raila Odinga’s family, allegedly failed to remit the dues promptly, sparking the legal tussle in the courts.
The Spectre Staff Provident Fund was established under an irrevocable trust dated 26 May 2006 and registered by the Retirement Benefits Authority, (RBA).
In a judgment dated December 6, 2023, Justice Stephen Radido, ruled: “In settlement of the sums due under the judgment delivered on May 31, 2023, the Court endorses and adopts the computations filed by the Claimants in Court on September 22, 2023, in the sum of Sh18,965,797/72.”
The extremity of the case was on May 31, 2023, where the Court issued a declaration that Spectre International is liable to refund the employees’ contributions deducted towards Sacco’s contributions but not remitted to Sacco in good time as the law dictates.
Judge Radido of the Labour and Industrial Relations Court in Kisumu said despite making deductions from the employee’s salary for 60 months, the company failed to timely remit the funds to Equity Bank, where the employee, Frederick Otieno Oswe, secured the loan.
“The bank statements placed before the court show deductions were regularly made from Oswe’s pay but were not regularly remitted to Equity. Radido observed: “As the employer, Spectre was expected to keep records, but it did not present any records to the court to demonstrate that it paid out to Equity all the monthly instalments as they fell due.’’
“The court has no hesitation in finding that Spectre was in breach of contract as contemplated by section 19 (g) and (h) of the Employment Act, 2007. The missteps by Spectre led to the loan not being cleared on schedule.
Consequently, he said, “Spectre must bear the liability for the same. A declaration is hereby issued that Spectre is liable to settle the outstanding loan arrears together with interest and penalties due to Equity Bank from Oswe.”
The petition was redirected to be heard for directions before the High Court sitting in Nairobi’s Mlimani Law Courts Commercial and Tax Division Insolvency under petition EQ14 of 2019.
Oswe had sued the firm on November 15, 2017, alleging that Spectre had not remitted the loan deductions to Equity despite making deductions from his salary leading to loan arrears of Sh624,579 as of 14 March 2018.
However, Spectre in its defence cited the Limitation Act that bars disputes of over three years from being brought to court, saying the action advanced by the claimant was caught up by the limitation.
Now, a fresh litigation has been filed seeking to declare the employees provident fund technically insolvent, which may further dim their hopes of being paid as they posit or alternatively raise their hopes if the ruling decides either way by adjudication of the acts cited.
