RULING
1.Before the court is the advocate/ judgment creditor’s notice of motion dated 9.4.2025. It is brought primarily under Order 22 Rule 35 (b) & (c) of the Civil Procedure Rules.
2.The advocate seeks that: -
(1) SPENT
(2) Abdiwahab Adan Maalim, the client/ judgment debtor’s director and shareholder is compelled to personally attend court to be examined on oath as to the judgment debtor’s means and assets and to produce its books of the accounts and other documentary evidence relevant to revealing the assets.
(3) The judgment debtor’s veil of incorporation is lifted and its director Abdiwahab Adan Maalim be made personally liable and ordered to settle the costs of Kshs 1,989,417.4/-
(4) Warrants of attachment and sale of assets of the respective director and shareholder of the judgment debtor do issue in execution of the decree herein.
(5) In the alternative to (3) above, Notice to Show Cause be issued compelling the said director and shareholder to show cause why he should not be committed to civil jail for failure to pay the taxed costs.
3.The application is supported by the affidavit sworn by Michael N. Muimi, Advocate on 9.4.2025.
4.Despite service and the filing of a return of service, the judgment debtor did not file a response to the application.
5.The main grounds advanced are: -
(1) A decree has been issued against the judgment debtor for Kenya Shillings 1,989,417.4/- and the judgment debtor has ignored and/or refused to settle the decree.
(2) The judgment debtor has no known realizable assets and no known place of business and is operating as a briefcase company.
6.Analysis and Determination
7.The issues for determination are whether the judgment debtor’s director ought to be summoned for oral examination in respect to the company’s ability or means to satisfy the decree, and whether the judgment debtor’s veil of incorporation should be lifted and directors held liable.
8.Under Order 22 Rule 35(b) and (c) of the Civil Procedure Rules the court may order the examination of an officer of a judgment-debtor company in court to provide answers in respect to the company’s ability or means to satisfy the decree.
9.The rule is a tool that enables a party to seek for information in discovery to assist them to follow through with execution.
10.The threshold for the grant of an order under Order 22 Rule 35 was discussed by this Court in Margaret Soares v Jane Otieno [2014] KEHC 6225 (KLR), as follows: -
“I, therefore, take the view that, as long as the Applicant has shown that the Respondent is in a position to provide information in the nature of discovery ...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, the court should summon the person to attend and be examined in relation to the purpose stated in the rule. Accordingly, I do not think, the rule places such a high and onerous standard as it has been argued by the Respondent, that the Applicant must establish; 1) the debtor’s debts and properties; and 2) that the person to be examined has knowledge of or interest in or connection with the judgment-debtor’s identified debts and properties which are subject of investigation. That kind of approach will defeat the entire purpose of the rule because the rule enables the Applicant to seek for information in the nature of discovery to assist the decree-holder to follow through on the execution. If the decree-holder already has such definite information of the debts and properties of the judgment-debtor, there will be no need of applying for examination of a person on what is already available. In such situation, the decree-holder should just proceed and execute on the judgment-debtor’s known properties. The second thing; any person may be summoned under the rule, and such person need not have any or direct connection with the issues in the case whatsoever as urged by the Respondent. What needs to be satisfied is the threshold I have mentioned above and the person shall be summoned under the rule.”
11.The judgment creditor seeks discovery of the judgment debtor’s means and assets capable of satisfying the decretal sum. They seek to have the judgment debtor’s director summoned to appear in court for examination and to produce the company's books of accounts, bank statements and other relevant documents to do so.
12.The judgment creditor stated that the judgment debtor has no known realizable assets and no known place of business and is operating as a briefcase company.
13.The judgment debtor owes the judgment creditor the decretal sum which remains unpaid. The judgment creditor’s bill of costs dated 29.5.2024 was taxed at Kshs. 1,989,417.40/-. A certificate of costs dated 30.1.2025 was issued.
14.Thus, I am satisfied that the judgment creditor has met the threshold for the grant of prayer (2) above.
Lifting of the corporate veil
15.The court has power to lift the corporate veil of a company. However, in an application under Order 22 Rule 35, the court may or may not lift the corporate veil. Masefield Trading (K) Ltd v Rushmore Company Limited & Another [2008] eKLR.
16.The judgment creditor alleged that the judgment debtor is being operated as a briefcase company. It also alleged that the judgment debtor’s previous offices remain closed.
17.The court is of the considered view that in the circumstances of this case, the issue of the lifting of the judgment debtor’s corporate veil be deferred.
Disposal
18.In the upshot, the judgment creditor’s application dated 9.4.2025 is partially allowed in terms of prayer 2. Prayers 3, 4 and 5 are deferred.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 30th day of July 2026
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F. Gikonyo M
Judge
Notice was issued. No appearance by parties
CA- Ivan/Aggrey
1.Before the court is the advocate/ judgment creditor’s notice of motion dated 9.4.2025. It is brought primarily under Order 22 Rule 35 (b) & (c) of the Civil Procedure Rules.
2.The advocate seeks that: -
(1) SPENT
(2) Abdiwahab Adan Maalim, the client/ judgment debtor’s director and shareholder is compelled to personally attend court to be examined on oath as to the judgment debtor’s means and assets and to produce its books of the accounts and other documentary evidence relevant to revealing the assets.
(3) The judgment debtor’s veil of incorporation is lifted and its director Abdiwahab Adan Maalim be made personally liable and ordered to settle the costs of Kshs 1,989,417.4/-
(4) Warrants of attachment and sale of assets of the respective director and shareholder of the judgment debtor do issue in execution of the decree herein.
(5) In the alternative to (3) above, Notice to Show Cause be issued compelling the said director and shareholder to show cause why he should not be committed to civil jail for failure to pay the taxed costs.
3.The application is supported by the affidavit sworn by Michael N. Muimi, Advocate on 9.4.2025.
4.Despite service and the filing of a return of service, the judgment debtor did not file a response to the application.
5.The main grounds advanced are: -
(1) A decree has been issued against the judgment debtor for Kenya Shillings 1,989,417.4/- and the judgment debtor has ignored and/or refused to settle the decree.
(2) The judgment debtor has no known realizable assets and no known place of business and is operating as a briefcase company.
6.Analysis and Determination
7.The issues for determination are whether the judgment debtor’s director ought to be summoned for oral examination in respect to the company’s ability or means to satisfy the decree, and whether the judgment debtor’s veil of incorporation should be lifted and directors held liable.
8.Under Order 22 Rule 35(b) and (c) of the Civil Procedure Rules the court may order the examination of an officer of a judgment-debtor company in court to provide answers in respect to the company’s ability or means to satisfy the decree.
9.The rule is a tool that enables a party to seek for information in discovery to assist them to follow through with execution.
10.The threshold for the grant of an order under Order 22 Rule 35 was discussed by this Court in Margaret Soares v Jane Otieno [2014] KEHC 6225 (KLR), as follows: -
“I, therefore, take the view that, as long as the Applicant has shown that the Respondent is in a position to provide information in the nature of discovery ...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, the court should summon the person to attend and be examined in relation to the purpose stated in the rule. Accordingly, I do not think, the rule places such a high and onerous standard as it has been argued by the Respondent, that the Applicant must establish; 1) the debtor’s debts and properties; and 2) that the person to be examined has knowledge of or interest in or connection with the judgment-debtor’s identified debts and properties which are subject of investigation. That kind of approach will defeat the entire purpose of the rule because the rule enables the Applicant to seek for information in the nature of discovery to assist the decree-holder to follow through on the execution. If the decree-holder already has such definite information of the debts and properties of the judgment-debtor, there will be no need of applying for examination of a person on what is already available. In such situation, the decree-holder should just proceed and execute on the judgment-debtor’s known properties. The second thing; any person may be summoned under the rule, and such person need not have any or direct connection with the issues in the case whatsoever as urged by the Respondent. What needs to be satisfied is the threshold I have mentioned above and the person shall be summoned under the rule.”
11.The judgment creditor seeks discovery of the judgment debtor’s means and assets capable of satisfying the decretal sum. They seek to have the judgment debtor’s director summoned to appear in court for examination and to produce the company's books of accounts, bank statements and other relevant documents to do so.
12.The judgment creditor stated that the judgment debtor has no known realizable assets and no known place of business and is operating as a briefcase company.
13.The judgment debtor owes the judgment creditor the decretal sum which remains unpaid. The judgment creditor’s bill of costs dated 29.5.2024 was taxed at Kshs. 1,989,417.40/-. A certificate of costs dated 30.1.2025 was issued.
14.Thus, I am satisfied that the judgment creditor has met the threshold for the grant of prayer (2) above.
Lifting of the corporate veil
15.The court has power to lift the corporate veil of a company. However, in an application under Order 22 Rule 35, the court may or may not lift the corporate veil. Masefield Trading (K) Ltd v Rushmore Company Limited & Another [2008] eKLR.
16.The judgment creditor alleged that the judgment debtor is being operated as a briefcase company. It also alleged that the judgment debtor’s previous offices remain closed.
17.The court is of the considered view that in the circumstances of this case, the issue of the lifting of the judgment debtor’s corporate veil be deferred.
Disposal
18.In the upshot, the judgment creditor’s application dated 9.4.2025 is partially allowed in terms of prayer 2. Prayers 3, 4 and 5 are deferred.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 30th day of July 2026
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F. Gikonyo M
Judge
Notice was issued. No appearance by parties
CA- Ivan/Aggrey