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JudgmentCentury Cinemax Ltd VS Convex Commercial Logistics11 min read

Century Cinemax Ltd VS Convex Commercial Logistics

High Court at Milimani High Court · · Githiru Freda Mugambi

Background and Introduction
1. This Ruling determines three applications arising out of execution proceedings between Century Cinemax Limited (the Decree Holder) and Convex Commercial Logistics Limited (the Judgment Debtor). The said applications are:
i. A garnishee application dated 25th September 2025, by which the Decree Holder seeks to have the Garnishee Order Nisi made absolute against the Judgment Debtor's bank account held at Equity Bank (the Garnishee);
ii. An application also dated 25th September 2025, by the Decree Holder seeking orders that the directors of the Judgment Debtor, Faith Njeri Waithaka and James Waithaka, be compelled to produce the Judgment Debtor's books of account and other documents relevant to its means and assets, and that they be summoned for oral examination on oath as to those means and assets, with further orders to be made against them personally in default of compliance; and
iii. An objector application dated 3rd July 2026 by which the Objector seeks to stop the sale of refinery machinery and lift a proclamation issued with the instructions of the Decree Holder.

2. The Judgment Debtor opposed the garnishee application and the application seeking examination of its directors through a Replying Affidavit sworn by James Waithaka. The Garnishee Bank responded to the Decree Holder’s garnishee application through a Replying Affidavit sworn on 4th December 2025 by Leah W. Gitonga, a Relationship Manager, with the Garnishee. The Decree Holder also opposed the objection application by way of the Replying Affidavit sworn by Muslim Jaffer on 19th August 2026. I have equally read and considered the various written submissions filed by the parties in respect of the issues that I now move to determine:

The Garnishee Application:
3. Garnishee proceedings are anchored in Section 44 of the Civil Procedure Act and elaborated in Order 23 of the Civil Procedure Rules. In practice, where the garnishee appears and places before the court uncontroverted evidence that no debt is owed, there is, in substance, no res on which an order absolute under Rule 4 can bite.

4. The Garnishee Bank's replying affidavit as well as the Judgment Debtor's bank statement confirms that, at the time the Garnishee Order Nisi was served, the Judgment Debtor's account did not hold sufficient funds to meet the decretal amount, and that the account remains without funds to date. Neither the Decree Holder nor the Judgment Debtor has challenged the accuracy of the bank statement produced, and no basis has been shown to doubt it.

5. On this uncontroverted record, there is no debt in the Garnishee's hands capable of being attached or levied upon. I am satisfied that the Garnishee is unable to comply with any order absolute and ought to be released from these proceedings. Accordingly, the garnishee application dated 25th September 2025 is dismissed with costs to the Garnishee.

Production of Documents and Oral Examination of Directors:
6. Once a decree for the payment of money remains unsatisfied, a decree-holder is not confined to the ordinary modes of execution being attachment and sale of known property, or like in this case, garnishee proceedings against a known third-party holder of funds. Those modes of execution presume that the decree-holder already knows what the judgment-debtor owns and where it is held. Order 22 of the Civil Procedure Rules, which governs execution generally, equips a decree-holder with a discovery tool for the more common situation where that knowledge is incomplete, hence, understandably, the application for examination of the Judgment Debtor’s directors.

7. The question for determination is whether the Decree Holder has made out a case for the oral examination of the Judgment Debtor's directors under Order 22 Rule 35 of the Civil Procedure Rules which provides that:
“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”.

8. The purpose of this provision is to assist a decree-holder in discovering the judgment debtor's assets and means of satisfying a lawful decree. It recognizes that execution may be frustrated not only by the genuine absence of assets, but by concealment, dissipation, or withholding of financial information. This position was aptly captured by Ringera, J (as he then was) in Ultimate Laboratories V Tasha Bioservice Ltd, [HCCC No. 1287 of 2000], where the learned Judge stated:
“The objective of an examination of a company’s director or officer under Order XX1 Rule 36 is to obtain discovery, for the purpose of execution of a decree against the company, 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.”

9. I entirely adopt that reasoning. At this stage, the only threshold is whether there exists an unsatisfied money decree and whether the decree-holder has demonstrated difficulty in tracing assets available for execution.

10. In the record before me, it is not in dispute that judgment was entered against the Judgment Debtor on 22nd June 2022 and that the parties later agreed to settle the decretal sum at Kshs 36,000,000/- as evidenced by the Settlement Agreement executed by both parties.

11. Clause 2 of the Agreement confirms the parties’ agreement that:
“The Plaintiff has agreed to discount the outstanding amount to KES. 36,000,000/= (Kenya Shillings thirty-six million) (the Discounted Amount) which the Defendant shall pay in instalments of KES. 1,000,000 (Kenya Shillings one million) per month by the 7th day of each month commencing 7th May 2025 in full and final settlement of HCCOMM/E128/2022 Century Cinemax Ltd VS Convex Commercial Logistics and any other matters touch on or arising therefrom.”

12. Clause 5 further provides that:
“In the event of failure of the Defendant to adhere to the terms and conditions of this settlement, the Plaintiff is at liberty to pursue recovery of the full outstanding amount against the Defendant and its directors, James Waithaka and Faith Njeri Waithaka personally.”

13. The terms of the settlement agreement were clear and unambiguous. The Decree Holder contends that at no point has the Judgment Debtor honored the agreed payment dates, every payment having been submitted between 6 and 22 days after the due date; that the Judgment Debtor made no payment at all in respect of the instalments due on 7th November and 7th December 2025 and remains in arrears of Kshs 2,000,000/- and that the breach has progressively worsened, from late payment to complete non-payment. According to the Decree Holder, this pattern shows an inability or unwillingness to meet even the substantially discounted settlement sum of Kshs 36,000,000/-.

14. The record bears this out in part. The Judgment Debtor did make several payments: Kshs 1,000,000/- on 7th May 2025; Kshs 500,000/- on 20th June 2025; Kshs 1,800,000/- on 22nd July 2025; Kshs 200,000/- on 1st August 2025; and a further Kshs 850,000/- and Kshs 150,000/- on 29th October 2025. However, no evidence has been placed before the Court that the instalments due on 7th November or 7th December 2025 were in fact paid, and it has not been disclosed whether any payments due after that date have since been made.

15. On this record, the Decree Holder has shown both an unsatisfied decree and genuine difficulty ascertaining the Judgment Debtor's current means of satisfying it, considering the steps taken at execution, which is all that Order 22 Rule 35 requires. The application is therefore successful.

The Objection Proceedings:
16. By an application dated 3rd July 2026 the Objector seeks the intervention of the Court to protect certain refinery machinery situated on Land Reference Numbers 18474/225 and 18474/229 at Athi River, from attachment and sale in execution proceedings by the Decree Holder. The Objector also seeks orders directing the release and lifting of the attachment already placed on the machinery, which it claims to be its own property, and that the 2nd Respondent auctioneer be compelled to withdraw any Proclamation Notice or other execution process issued in respect of that machinery. The Objector confirms that while the land itself may belong to the Judgment Debtor, the machinery and operational plant installed thereon are distinct chattels owned by the Objector.

17. The application is opposed by the Decree Holder through the replying affidavit sworn on 19th August 2026, first, on a preliminary point of competence. It is contended that the Objector has not filed a Notice of Objection as required under Order 22 Rule 51(1) of the Civil Procedure Rules, which is the procedure by which objection proceedings are properly initiated. Absent that Notice, it is contended, the present application is procedurally invalid and cannot stand.

18. Substantively, the application is opposed as an abuse of process. The Decree Holder contends that the Judgment-Debtor had twice previously sought to stay execution over the same proclaimed goods under Order 42 Rule 6 on 20th April 2026, and under Rule 5(2)(b) of the Court of Appeal Rules on 17th June 2026. In both instances the applications were brought through the same deponent, James Waithaka, without ever suggesting that the machinery belonged to a separate entity. Only after both applications had failed did the Objector, a company sharing common directorship and advocates with the Judgment-Debtor, assert ownership for the first time, some 11 weeks after the Proclamation Notice and with no explanation for the delay. The Decree Holder describes this as a deliberate attempt to frustrate a judgment debt that has been outstanding for nearly 4 years.

19. The Decree Holder further argues that the Objector has not produced adequate proof of ownership. Given the common control between the Objector and the Judgment-Debtor, it is submitted that a heightened burden lies on the Objector to prove separate ownership, which burden has not been discharged. The Decree Holder urges the Court to disregard the claimed corporate separateness as one of form only.

20. I have also considered the submissions filed by the parties. Objection proceedings in execution are governed by Order 22 Rule 51, 52 and 53 of the Civil Procedure Rules. That provision contemplates that where any person claims an interest in property attached in execution of a decree, and objects to such attachment, the objection is to be raised by way of a Notice of Objection, to be accompanied, under rule 51(2) by an application briefly setting out the nature of the claim.

21. As to whether this omission is sufficient to nullify the objection application, this Court had an opportunity to discuss the effect of not serving a Notice under rule 51 previously. I reiterate the finding in Kilimanjaro Construction V Cytonn Investment Partners Three LLP & Others and Amara Ridge Management Company Limited, Misc. Appl. No. E1109 of 2020; that:
“Such procedural lapses do not automatically nullify execution proceedings unless substantial prejudice is demonstrated. The Court must consider whether the omission complained of goes to the root of the process or whether it is a curable irregularity. In the present case, even though the Objectors allege that the Decree Holder failed to comply with Rule 53, they have nonetheless been able to file their objection application, place evidence before the Court, and ventilate their claims fully. No prejudice has been shown to have been occasioned to them by the alleged omission.”

22. Moving to the substance of the application, the jurisprudence governing objection proceedings is now firmly settled. The burden of proof lies squarely on the Objector, who must establish a legal or equitable interest in the property through credible, cogent, and admissible evidence. This principle was clearly articulated in Arun V Sharma Astana Raikundaha T/A Raikundaha & Co. Advocates & 4 Others, (2014) KEHC 1412 (KLR).

23. Similarly, in Stephen Kiprotich Koech V Edwin K. Barchilei; Joel Sitienei (Objector), [2019] eKLR, the Court reaffirmed the evidentiary threshold required of an objector, holding that:
“The core of objection proceedings, the objector must adduce evidence to show that at the date of the attachment there was a legal or equitable interest in the property(s) attached. For this purpose, he may raise an objection on the ground, inter alia, that he has some beneficial interest in the property. A beneficial interest is as much an interest within the meaning of the Rules as a legal interest in the property attached.”

24. Applying these principles to the matter at hand, the evidence on record establishes that the Judgment-Debtor made two prior attempts to resist execution over the very goods now claimed by the Objector, in neither of which was any suggestion made that the machinery belonged to a separate entity. The rulings of 28th July 2026 and 23rd May 2024 are testimony to this fact. I would agree with the Decree Holder that the timing of the present application and grounds is telling, having been raised for the first time on 3rd July 2026. The fact that the same was not brought up in the two applications confirms that the application is an afterthought. The filing of the application some 11 weeks after the Proclamation Notice also aggravates the position. No explanation has been provided by the Objector for the delay. This sequence of events bears the hallmarks of an afterthought contrived to frustrate execution, and amounts to an abuse of the process of this Court.

25. Further, the documents relied upon by the Objector fall well short of establishing ownership or interest in the attached machinery. A feasibility study that was prepared to attract investment and a certificate certifying completion of construction works are not instruments of title, and are not capable of displacing the presumption that the goods found in the possession of the Judgment-Debtor were properly liable to attachment. No evidence has been produced to identify the machinery as the Objector's asset, and the charge documents exhibited relate to interests in land, not the movable plant in issue. Given the common directorship between the Objector and the Judgment-Debtor, the heightened burden resting on the Objector to prove separate ownership has not been discharged. The objection therefore fails.

Disposition and final orders
26. Accordingly, and for the reasons given, I make the following final orders:
i. The garnishee application dated 25th September 2025 is dismissed with costs to the Garnishee;
ii. The application dated 25th September 2025 is allowed as prayed. Costs shall await the outcome of the examination;
iii. The objection application dated 3rd July 2026 is dismissed with costs.

DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF SEPTEMBER 2026.

F. MUGAMBI
JUDGE

Delivered in presence of:
Gichana for DH
Court Assistants: Lillian & Gloria
    Century Cinemax Ltd VS Convex Commercial Logistics Century Cinemax Ltd VS Convex Commercial Logistics