1. The Plaintiff is the decree-holder in this matter. It obtained judgment in default of appearance and defence against the Defendant on 9th February 2017 for the sum of Kshs. 87,082,622.99 together with costs and interest. It has now filed the Notice of Motion dated 11th January 2023 made, inter alia, under Order 22 Rule 35 of the Civil Procedure Rules (‘’the Rules’’) seeking to examine Azim Nathoo and Tajdin Nathoo (“Azim and Tajdin”) as directors of the Defendant/Judgment-Debtor on the Defendant’s means to satisfy the judgment debt. The application is supported by the supporting and supplementary affidavits of the Plaintiff’s advocate, Mutiso Steve Kimathi, sworn on 11th January 2023 and 16th May 2023 respectively. Azim and Tajdin Nathoo oppose the application through the replying affidavit of Azim Nathoo sworn on 31st March 2023. The parties’ advocates made brief submissions in support of their respective positions.
2. In substance, the Plaintiff states that it has conducted a search of the Vanoil (Kenya) Limited at the Companies Registry and the official search (CR 12) dated 20th September 2022 showed that Azim and Tajdin were its shareholders with each owing 500 shares each. It avers that although the registered office is shown as LR No. 209 3474 located long Dar-es-Salaam Road, Nairobi, it has not been able to locate the company office or its assets.
3. In the Replying Affidavit, both Tajdin and Azim deny that have been or are directors of the Defendant and that their company; Vanoil Kenya Limited is not a party to these proceedings. That upon making inquiries they found that Vanoil Energy Limited, the Defendant, is a company incorporated in British Columbia in Canada with offices in Vancouver Canada and whose directors are Mackey Michael and Brynelsen.
4. In response to the replying affidavit, the Plaintiff contends that the Vanoil (Kenya) Limited is a subsidiary of the Defendant and its directors should not be allowed to escape their legal and contractual liabilities. The Plaintiff pointed out that by a letter dated 2nd June 2013 addressed to Kenya Revenue Authority, Vangold Resources Limited of Vancouver Canada operating in Kenya changed its name to Vanoil Energy Limited and informed the Commissioner that it had registered a branch in Kenya. The said letter was signed by Azim Nathoo. It further points out that there is evidence of the relationship between Vanoil Energy Limited and Vanoil Kenya Limited in documents executed between the Plaintiff and the Defendant.
5. Resolution of this matter turns on the interpretation and application of Order 22 rule 35 of the Rules which provides as follows:
Order 22 rule 35
Examination of judgment-debtor as to his property
35. Where a decree is for the payment of money, the decree-holder may apply to the court for an order that –
(a) the judgment-debtor;
(b) in the case of a corporation, any officer thereof; or
(c) any other person,
Be orally examined as to whether any or what debts are owing to the judgment-debtor, and whether the judgment-debtor has any and what property or means of satisfying the decree, and the court may make an order for the attendance and examination of such judgment-debtor or officer, or other person, and for the production of any books or documents.
6. As can be seen from the aforesaid provision, its purpose is to assist decree-holder execute the decree in its favour by examining any person who has information on the means of the judgment debtor. In Ultimate Laboratories v Tasha Bioservice Limited NRB HCCC No. 1287 of 2000 (UR), Ringera J., observed as follows:
The court’s duty under the Order and Rule in question is limited to ensuring that the person being examined answers all the questions which are fairly, pertinent and properly asked and it is thereafter up to the decree-holder to use the said information to proceed with execution where the examination unearths assets or other means of satisfying the decree.
7. At this stage the court is only required to answer the question whether there is sufficient evidence to issue summons not only to officers of a company but also to any person who may assist in unearthing the assets or property of the judgment debtor. As this stage the court need not make a definitive finding on any of the issues raised by the parties as to whether or not the person sought to be examined are indeed directors of the Defendant.
8. Having looked at the documents and the connection between the Plaintiff and the Defendant on the one hand and Azim and Tajdin on the other, I think this is a proper case for them to be summoned for examination as to the property or means of the Defendant. Any other issues regarding their liability or otherwise will be determined after the hearing.
9. For the reasons I have outlined, I allow the application dated 11th January 2023 to the following extent and order as follows:
(a) That summons shall issue to AZIM NATHOO and TAJDIN NATHOO to attend court for oral examination on the means and assets of the Defendant/Judgment-Debtor on a date fixed and are ordered to produce any correspondence, books of accounts, bank statements, annual returns and any other documents in relation to the Judgment-Debtor.
(b) Costs of the application shall be in the cause.
DATED and DELIVERED at NAIROBI this 30th day of MAY 2023.
D. S. MAJANJA
JUDGE
2. In substance, the Plaintiff states that it has conducted a search of the Vanoil (Kenya) Limited at the Companies Registry and the official search (CR 12) dated 20th September 2022 showed that Azim and Tajdin were its shareholders with each owing 500 shares each. It avers that although the registered office is shown as LR No. 209 3474 located long Dar-es-Salaam Road, Nairobi, it has not been able to locate the company office or its assets.
3. In the Replying Affidavit, both Tajdin and Azim deny that have been or are directors of the Defendant and that their company; Vanoil Kenya Limited is not a party to these proceedings. That upon making inquiries they found that Vanoil Energy Limited, the Defendant, is a company incorporated in British Columbia in Canada with offices in Vancouver Canada and whose directors are Mackey Michael and Brynelsen.
4. In response to the replying affidavit, the Plaintiff contends that the Vanoil (Kenya) Limited is a subsidiary of the Defendant and its directors should not be allowed to escape their legal and contractual liabilities. The Plaintiff pointed out that by a letter dated 2nd June 2013 addressed to Kenya Revenue Authority, Vangold Resources Limited of Vancouver Canada operating in Kenya changed its name to Vanoil Energy Limited and informed the Commissioner that it had registered a branch in Kenya. The said letter was signed by Azim Nathoo. It further points out that there is evidence of the relationship between Vanoil Energy Limited and Vanoil Kenya Limited in documents executed between the Plaintiff and the Defendant.
5. Resolution of this matter turns on the interpretation and application of Order 22 rule 35 of the Rules which provides as follows:
Order 22 rule 35
Examination of judgment-debtor as to his property
35. Where a decree is for the payment of money, the decree-holder may apply to the court for an order that –
(a) the judgment-debtor;
(b) in the case of a corporation, any officer thereof; or
(c) any other person,
Be orally examined as to whether any or what debts are owing to the judgment-debtor, and whether the judgment-debtor has any and what property or means of satisfying the decree, and the court may make an order for the attendance and examination of such judgment-debtor or officer, or other person, and for the production of any books or documents.
6. As can be seen from the aforesaid provision, its purpose is to assist decree-holder execute the decree in its favour by examining any person who has information on the means of the judgment debtor. In Ultimate Laboratories v Tasha Bioservice Limited NRB HCCC No. 1287 of 2000 (UR), Ringera J., observed as follows:
The court’s duty under the Order and Rule in question is limited to ensuring that the person being examined answers all the questions which are fairly, pertinent and properly asked and it is thereafter up to the decree-holder to use the said information to proceed with execution where the examination unearths assets or other means of satisfying the decree.
7. At this stage the court is only required to answer the question whether there is sufficient evidence to issue summons not only to officers of a company but also to any person who may assist in unearthing the assets or property of the judgment debtor. As this stage the court need not make a definitive finding on any of the issues raised by the parties as to whether or not the person sought to be examined are indeed directors of the Defendant.
8. Having looked at the documents and the connection between the Plaintiff and the Defendant on the one hand and Azim and Tajdin on the other, I think this is a proper case for them to be summoned for examination as to the property or means of the Defendant. Any other issues regarding their liability or otherwise will be determined after the hearing.
9. For the reasons I have outlined, I allow the application dated 11th January 2023 to the following extent and order as follows:
(a) That summons shall issue to AZIM NATHOO and TAJDIN NATHOO to attend court for oral examination on the means and assets of the Defendant/Judgment-Debtor on a date fixed and are ordered to produce any correspondence, books of accounts, bank statements, annual returns and any other documents in relation to the Judgment-Debtor.
(b) Costs of the application shall be in the cause.
DATED and DELIVERED at NAIROBI this 30th day of MAY 2023.
D. S. MAJANJA
JUDGE