1. The Objector filed a Notice of Motion application dated 30th July 2025 under Certificate of Urgency pursuant to Order 22 Rules 51 (1) & (2) & 52, Order 40 Rule 1 (a) and Oder 51 Rules 1 & 3 of the Civil Procedure Rules, Section 1A & 3A of the Civil Procedure Act, and all the enabling provisions of the law.
2. The Objector seeks for the following orders: -
1. Spent
2. Spent
3. THAT this Honourable Court do set aside the Notice of Proclamation of Sale of Movable Property Nos. 508 and 509 dated 21st July 2025 issued by Leonard Mwangi T/A Ndutumi Auctioneers.
4. THAT this Honourable Court be pleased to lift the Warrants of Attachment and Sale issued dated 16th July, 2025.
5. THAT the costs of this Application be awarded to the Objector.
3. The application is supported by the annexed affidavit of Shahame Aziz Mwidani and grounds that the properties proclaimed on 21st July 2025 belonged to the Objector and not the Respondents. The Objector contended that the Advocate could not lawfully execute against its property to satisfy a decree issued against the Respondents, as it was a separate legal entity, was not a party to the proceedings, and had no knowledge of the suit between the Advocate and the Respondents. That the Respondents had no legal or equitable interest in the proclaimed assets, rendering the proclamation irregular, misconceived, and unlawful.
4. The Objector also stated that the Auctioneer never visited its premises to carry out the proclamation. Additionally, the Objector stated that in a related matter, Mombasa HCCC No. E166 of 2021, the court had ordered maintenance of the status quo, yet the Advocate and the Auctioneer proceeded to proclaim the same movable assets contrary to that order. The Objector therefore urged the court to lift the proclamation and attachment to prevent it from suffering prejudice and to uphold the interests of justice.
5. The Advocate in opposition to the application filed a Replying Affidavit sworn on 7th October 2025 that the Objector failed to prove either legal or beneficial ownership of the attached assets, including motor vehicles KDQ 323T (Toyota Land Cruiser V8) and KDC 038E (Isuzu Truck). He maintained that the assets were held for the benefit of the Judgment Debtors and that the objection proceedings were merely a scheme orchestrated by the 2nd Judgment Debtor, Osman Erdinc Elsek, to evade satisfaction of the decree.
6. The Advocate deposed that similar objection proceedings had previously been used by the 2nd Judgment Debtor in related litigation to frustrate execution. He alleged that Shahame Aziz Mwidani, who swore affidavits on behalf of the Objector, is the recognized agent of the 2nd Judgment Debtor and Finance Manager of the ‘Elsek Group of Companies’, a conglomerate allegedly controlled entirely by the 2nd Judgment Debtor. According to the Advocate, the Objector, the 1st Judgment Debtor, and related companies are all part of this group and are effectively controlled by the 2nd Judgment Debtor as sole or majority shareholder, director, and decision-maker.
7. The Advocate further stated that the Objector was incorporated by the 2nd Judgment Debtor to acquire, hold, and operate assets and businesses on his behalf. He alleged that the Objector and the Judgment Debtors share employees, management, and resources, and that the company operates under the absolute control of the 2nd Judgment Debtor. He deposed that corporate formalities are routinely ignored and that the company functions merely as an extension of the 2nd Judgment Debtor.
8. The Advocate also challenged the Objector’s claim that it had no knowledge of the proceedings. He stated that Shahame Aziz Mwidani attended court on behalf of the Judgment Debtors when a ruling was delivered on 29th May 2025 and successfully obtained a 30-day stay of execution. Since no payment was made after the stay lapsed, the Advocate alleged that the Objector and Shahame Aziz Mwidani falsely denied knowledge of the proceedings and thereby misled the court.
9. Regarding motor vehicle KDQ 323T, the Advocate alleged that the 2nd Judgment Debtor purchased it on 17th June 2025 using funds generated through businesses operated in the Objector’s name and initially registered it in his own name. After auctioneers traced and proclaimed the vehicle on 23rd June 2025 at Kilifi Pearl Beach Resort, the 2nd Judgment Debtor allegedly transferred it to the Objector without consideration in an attempt to shield it from execution. The Advocate maintained that the vehicle remained under the possession, use, and beneficial ownership of the 2nd Judgment Debtor even after the transfer.
10. The Advocate further alleged extensive commingling of assets and funds between the 2nd Judgment Debtor and the Objector, arguing that the company lacked genuine independence. He claimed that the Objector existed merely as the nominee, trustee, instrument, or alter ego of the 2nd Judgment Debtor and that assets registered in the company’s name were in reality beneficially owned by him.
11. On that basis, the Advocate stated that the Objector’s separate corporate personality should be disregarded. He described the company as a sham used to conceal assets and avoid creditors and urged the court to lift or sidestep the corporate veil, treat the Objector and the Judgment Debtors as one and the same, and hold them jointly liable for the decree.
12. The Objector filed a Further Affidavit sworn on 10th November 2025 by Shahame Aziz Mwidani, the Finance Manager, rejected the Advocate’s allegations and maintained that the Objector and the Respondents are separate and independent legal entities. He denied any collusion between himself, the Objector, and the Respondents, and stated that the Advocate had failed to appreciate the distinction between the companies.
13. The Objector stated that the related matter, Mombasa H.C. Comm. E032 of 2024, involved only the Advocate and the 2nd Respondent and was settled by the 2nd Respondent alone. That neither the Objector nor Shahame Aziz Mwidani participated in the settlement and that the Advocate’s assertions to the contrary were misleading. The Objector also challenged the Advocate’s claim that a proclamation in that matter had been served upon Shahame Aziz Mwidani, questioning why he would accept service in proceedings to which he was not a party. That the Advocate and the Auctioneer acted improperly and in concert to the detriment of both the Objector and the Respondents.
14. The Objector further complained about the conduct of the Auctioneer, noting that the same Auctioneer had proclaimed motor vehicle KDQ 323T in the settled matter and later proclaimed both KDQ 323T and KDC 038E in the present proceedings and in Mombasa HCCC Misc. E166 of 2021. It maintained that both vehicles belonged to the Objector and that ownership was reflected in NTSA records before the proclamation in the present matter. According to the Objector, KDC 038E was registered in its name on 17th June 2025 and KDQ 323T on 23rd June 2025, while the proclamation in the present case occurred on 21st July 2025, at a time when both vehicles were already owned by the Objector.
15. The Objector stated that the Auctioneer failed to conduct proper due diligence before proclaiming the vehicles and further alleged that the fixed assets listed in the proclamation at its restaurant premises belonged exclusively to it, as evidenced by invoices and receipts previously produced. It also claimed that the Auctioneer never physically visited the premises to carry out the proclamation but instead purportedly served notices through WhatsApp to the 2nd Respondent. The Objector described these actions as illegal and contrary to principles of natural justice and requested that the Auctioneer be summoned to explain how the proclamation was undertaken.
16. The Objector informed the court that it had initiated disciplinary proceedings before the Auctioneers Licensing Board in Milimani/ALB/Misc/88/2025 concerning the Auctioneer’s conduct. It further alleged that the Auctioneer acted unlawfully by proclaiming motor vehicle KDC 038E in two separate matters while an earlier attachment remained unresolved, contrary to the Civil Procedure framework governing execution.
17. On the substantive issues, the Objector stated that the Advocate was improperly attempting to lift the corporate veil without filing an appropriate application or presenting sufficient evidence. It denied being part of any ‘Elsek Group of Companies’ and challenged the Advocate to prove the existence of such a conglomerate. The Objector also denied any transfer, commingling, or movement of funds and assets between itself and the Respondents, contending that the allegations were speculative and unsupported by documentary evidence.
18. The Objector maintained that it and the Respondents are separate companies, incorporated independently, conducting separate businesses, and not related as parent, subsidiary, or merged entities. It emphasized that, under Article 260 of the Constitution, it is a distinct legal person, and under Article 40(2)(a), it enjoys constitutional protection against arbitrary deprivation of property.
19. In conclusion, the Objector stated that the attached vehicles and assets belong solely to it, that it is not liable for the debts of the Respondents, and that its property cannot lawfully be attached or sold to satisfy liabilities it did not incur. It therefore urged the court to uphold its separate legal personality and protect its assets from execution.
20. The application was canvassed by way of written submissions. The Objector in their submissions dated 9th November 2025 argued that the proclamation and attachment of the goods on 21st July 2025 were unlawful because the attached properties belonged exclusively to the Objector and not the Respondents, against whom the decree had been issued. That execution could only be levied against the judgment debtors named in the decree and warrants of attachment, neither of which mentioned the Objector.
21. The Objector maintained that it is a separate legal entity from the Respondents and that the Respondents had no legal or equitable interest in the proclaimed property. That the attachment violated its constitutional right to property under Articles 40 and 260 of the Constitution and infringed its right to a fair hearing under Article 50, as it had not been a party to the proceedings nor afforded an opportunity to be heard.
22. The Objector further argued that the court is constitutionally obligated under Articles 24 and 259 of the Constitution to protect and promote fundamental rights and freedoms and to interpret the Constitution in a manner that advances the rule of law and good governance. It asserted that the Advocate’s attempt to enforce the warrants against its property was illegal, malicious, and contrary to the principle established in Salomon v Salomon that a company is a separate legal entity distinct from its directors and shareholders.
23. The Objector submitted that the Advocate had not demonstrated any genuine attempt to execute against the Respondents and had merely relied on allegations that the Objector and the Respondents shared common directors and business interests. Relying on Joseph Kobia Nguthari v Kiegoi Tea Factory Company Limited & 2 others (2016) eKLR, the Objector contended that it would suffer substantial prejudice if its property were sold to satisfy the Respondents’ debt and therefore urged the court to lift and set aside the proclamation and attachment in their entirety.
24. The Advocate filed submissions dated 10th November 2025 and argued that the Objector was merely an alter ego of the 2nd Judgment Debtor and was being used to shield assets from execution. It was argued that motor vehicle registration No. KDQ323T (Toyota Land Cruiser V8) was purchased by the 2nd Judgment Debtor on 17th June 2025 using income generated from businesses operated through the Objector and was initially registered in his personal name.
25. Following its proclamation by auctioneers on 23rd June 2025 in execution of a decree issued in Mombasa H.C. Comm. Misc. No. E032 of 2024, the vehicle was allegedly transferred to the Objector on the same day without consideration in an attempt to defeat execution. The Advocate further contended that the vehicle remained under the use, control, and beneficial ownership of the 2nd Judgment-Debtor even after its transfer and subsequent release following settlement of the decree.
26. The Advocate maintained that the 2nd Judgment Debtor exercised complete control over the Objector, disregarding corporate formalities and freely using the company’s assets and funds as his own. It was asserted that there was extensive commingling of assets and finances between the Objector and the 2nd Judgment-Debtor, including unrestricted deposits and withdrawals from the Objector’s bank accounts, demonstrating a unity of ownership and interests that rendered the company’s separate legal personality illusory. According to the Advocate, the Objector functioned merely as an instrument, nominee, trustee, or facade through which the 2nd Judgment Debtor conducted his affairs and sought to evade liability to creditors.
27. The Advocate further argued that the Objector had failed to establish legal and beneficial ownership of the proclaimed assets, including motor vehicles KDQ323T and KDC038E, or to demonstrate that it held the assets on its own account rather than in trust for the Judgment Debtors. It was also contended that the Objector’s application was incompetent because the supporting and further affidavits sworn by Shahame Aziz Mwidani lacked the requisite corporate authority, he not being a director of the company. The Advocate accused the Objector of approaching the court with unclean hands through concealment of material facts, perjury, and efforts to secrete the Judgment Debtors’ assets.
28. Consequently, the Advocate urged the court to pierce or disregard the Objector’s corporate veil, find the Objector jointly liable with the Judgment Debtors for satisfaction of the decree, and dismiss the objector proceedings with costs. Reliance was placed on several prior decisions involving the parties and related entities to support the contention that the Objector formed part of a network of companies used by the 2nd Judgment Debtor to avoid creditor claims and frustrate execution of lawful court decrees.
Analysis
29. This court has considered the Notice of Motion application dated 30th July 2025, the Replying Affidavit sworn on 7th October 2025, the Further Affidavit sworn on 10th November 2025, and submissions. The issues for determination are: -
(a) Whether the Objector has established a legal or equitable interest in the attached properties sufficient to warrant the lifting of the proclamation and warrants of attachment under Order 22 Rules 51 and 52 of the Civil Procedure Rules.
(b) Who should bear costs
30. The law governing objector proceedings is well settled. An objector bears the burden of proving, on a balance of probabilities, that at the time of attachment it had a legal or equitable interest in the attached property. In Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] KEHC 100 (KLR), the court held that: -
“The objector must adduce evidence to show that at the date of the attachment he had a legal or equitable interest in the property. 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 …
The burden is on the objector to prove and establish his right to have the attached property released from the attachment.”
31. In Akiba Bank Limited vs Jetha & Sons Limited [2005] KEHC 2307 (KLR), the court emphasized that: -
“An Objector coming to court under Rule 57 of Order 21 of the Civil Procedure Rules (the Rules) so as to establish his claim to attached goods as required by Rule 56 of the same Order must exhibit evidence of his legal or equitable interest in the whole or part of any property attached in execution of a decree.”
32. The Objector's case is founded on the contention that it is a distinct legal entity from the Judgment Debtors and that the attached assets, including motor vehicles registration numbers KDQ 323T and KDC 038E, belong exclusively to it. It relies heavily on the doctrine of separate corporate personality established in the celebrated case of Salomon v Salomon, arguing that its property cannot be attached to satisfy the debts of another legal entity.
33. There can be no dispute that a duly incorporated company enjoys a separate legal personality distinct from its shareholders and directors. However, that principle is not absolute. Courts have consistently held that the corporate veil may be lifted where a company is used as a facade, sham, instrument of fraud, or device to evade legal obligations. In Victor Mabachi & another v Nurtun Bates Limited [2013] KECA 204 (KLR), the Court of Appeal reaffirmed that: -
“This being the case, Mediacom, as a body corporate, is a persona jurisdica, with a separate independent identity in law, distinct from its shareholders, director sand agents unless there are factors warranting a lifting of the veil. Thus in the case of Jones & Another vs. Lipman & Another (1962) 1 W.L.R 833, Russel, J held that if a company was thought to be a mere cloak or sham, a device or a mask which the defendant held to his face, in an attempt to avoid recognition by the eye of equity, the court could grant summary judgment even against the person behind that company.”
34. The evidence placed before the court raises serious questions regarding the relationship between the Objector and the 2nd Judgment Debtor. Of particular significance is the evidence relating to motor vehicle KDQ 323T. The material before the court shows that the vehicle was initially registered in the name of the 2nd Judgment Debtor and was proclaimed by auctioneers on 23rd June 2025 in execution of a decree in a related matter.
35. The NTSA records exhibited by the Advocate indicate that the vehicle was transferred to the Objector on the very same day following proclamation. No documentary evidence was produced showing that the transfer was supported by valuable consideration. The timing of the transfer lends credence to the Advocate's contention that the transfer was effected to place the asset beyond the reach of creditors.
36. Further, the Advocate exhibited evidence intended to demonstrate extensive commingling of assets and funds between the Objector and the 2nd Judgment Debtor. The allegations include unrestricted movement of funds, use of company assets for personal purposes, and disregard of corporate formalities. While the Objector denied these allegations, it did not provide sufficient documentary evidence to rebut the detailed material placed before the court concerning the operation and management of the company.
37. The court is also persuaded by the fact that the Objector's case rests substantially on the assertion of separate legal personality without adequately addressing the allegations that it functions merely as an instrument or nominee of the 2nd Judgment Debtor. In Jones & another v Lipman & another (1962) 1WLR 832, the court held: -
“… if a company was thought to be a mere cloak or sham, a device or a mask which the defendant held to his face, in an attempt to avoid recognition by the eye of equity, the court could grant summary judgement even against the person behind the said company.”
38. The court has considered the decision in Joseph Kobia Nguthari v Kiegoi Tea Factory Company Limited & 2 others (2016) eKLR relied upon by the Objector. That authority is distinguishable because in the present case there is substantial evidence suggesting that the disputed assets may be beneficially owned or controlled by the Judgment Debtor notwithstanding their registration in the Objector's name.
39. Objector proceedings are not intended to shield assets that are merely held in the name of third parties while remaining under the beneficial ownership and control of judgment debtors. Courts will look beyond formal documentation where circumstances indicate an attempt to conceal the true ownership of property.
40. Having carefully evaluated the affidavits, annexures, and submissions of the parties, this court finds that the Objector has failed to discharge the burden of proving that the attached assets are held exclusively for its own benefit and independent of the Judgment Debtors. Conversely, the Advocate has placed before the court sufficient material demonstrating a prima facie basis for treating the Objector as an extension or alter ego of the 2nd Judgment Debtor for purposes of execution.
Determination
41. Accordingly, this court makes the following orders: -
(a) The Objector's Notice of Motion dated 30th July 2025 is hereby dismissed.
(b) The Notice of Proclamation of Sale of Movable Property Nos. 508 and 509 dated 21st July 2025 is upheld.
(c) The Warrants of Attachment and Sale issued on 16th July 2025 shall remain in force.
(d) The Advocate/Decree Holder shall be at liberty to proceed with execution in accordance with the law.
(e) The costs of the application shall be borne by the Objector.
Dated and delivered virtually at Mombasa this 25th day of June, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
N/A by the Advocate/ Respondent
Dr. Khaminwa Advocate for the Objector/ Applicant
Ms. Salwa, Court Assistant
2. The Objector seeks for the following orders: -
1. Spent
2. Spent
3. THAT this Honourable Court do set aside the Notice of Proclamation of Sale of Movable Property Nos. 508 and 509 dated 21st July 2025 issued by Leonard Mwangi T/A Ndutumi Auctioneers.
4. THAT this Honourable Court be pleased to lift the Warrants of Attachment and Sale issued dated 16th July, 2025.
5. THAT the costs of this Application be awarded to the Objector.
3. The application is supported by the annexed affidavit of Shahame Aziz Mwidani and grounds that the properties proclaimed on 21st July 2025 belonged to the Objector and not the Respondents. The Objector contended that the Advocate could not lawfully execute against its property to satisfy a decree issued against the Respondents, as it was a separate legal entity, was not a party to the proceedings, and had no knowledge of the suit between the Advocate and the Respondents. That the Respondents had no legal or equitable interest in the proclaimed assets, rendering the proclamation irregular, misconceived, and unlawful.
4. The Objector also stated that the Auctioneer never visited its premises to carry out the proclamation. Additionally, the Objector stated that in a related matter, Mombasa HCCC No. E166 of 2021, the court had ordered maintenance of the status quo, yet the Advocate and the Auctioneer proceeded to proclaim the same movable assets contrary to that order. The Objector therefore urged the court to lift the proclamation and attachment to prevent it from suffering prejudice and to uphold the interests of justice.
5. The Advocate in opposition to the application filed a Replying Affidavit sworn on 7th October 2025 that the Objector failed to prove either legal or beneficial ownership of the attached assets, including motor vehicles KDQ 323T (Toyota Land Cruiser V8) and KDC 038E (Isuzu Truck). He maintained that the assets were held for the benefit of the Judgment Debtors and that the objection proceedings were merely a scheme orchestrated by the 2nd Judgment Debtor, Osman Erdinc Elsek, to evade satisfaction of the decree.
6. The Advocate deposed that similar objection proceedings had previously been used by the 2nd Judgment Debtor in related litigation to frustrate execution. He alleged that Shahame Aziz Mwidani, who swore affidavits on behalf of the Objector, is the recognized agent of the 2nd Judgment Debtor and Finance Manager of the ‘Elsek Group of Companies’, a conglomerate allegedly controlled entirely by the 2nd Judgment Debtor. According to the Advocate, the Objector, the 1st Judgment Debtor, and related companies are all part of this group and are effectively controlled by the 2nd Judgment Debtor as sole or majority shareholder, director, and decision-maker.
7. The Advocate further stated that the Objector was incorporated by the 2nd Judgment Debtor to acquire, hold, and operate assets and businesses on his behalf. He alleged that the Objector and the Judgment Debtors share employees, management, and resources, and that the company operates under the absolute control of the 2nd Judgment Debtor. He deposed that corporate formalities are routinely ignored and that the company functions merely as an extension of the 2nd Judgment Debtor.
8. The Advocate also challenged the Objector’s claim that it had no knowledge of the proceedings. He stated that Shahame Aziz Mwidani attended court on behalf of the Judgment Debtors when a ruling was delivered on 29th May 2025 and successfully obtained a 30-day stay of execution. Since no payment was made after the stay lapsed, the Advocate alleged that the Objector and Shahame Aziz Mwidani falsely denied knowledge of the proceedings and thereby misled the court.
9. Regarding motor vehicle KDQ 323T, the Advocate alleged that the 2nd Judgment Debtor purchased it on 17th June 2025 using funds generated through businesses operated in the Objector’s name and initially registered it in his own name. After auctioneers traced and proclaimed the vehicle on 23rd June 2025 at Kilifi Pearl Beach Resort, the 2nd Judgment Debtor allegedly transferred it to the Objector without consideration in an attempt to shield it from execution. The Advocate maintained that the vehicle remained under the possession, use, and beneficial ownership of the 2nd Judgment Debtor even after the transfer.
10. The Advocate further alleged extensive commingling of assets and funds between the 2nd Judgment Debtor and the Objector, arguing that the company lacked genuine independence. He claimed that the Objector existed merely as the nominee, trustee, instrument, or alter ego of the 2nd Judgment Debtor and that assets registered in the company’s name were in reality beneficially owned by him.
11. On that basis, the Advocate stated that the Objector’s separate corporate personality should be disregarded. He described the company as a sham used to conceal assets and avoid creditors and urged the court to lift or sidestep the corporate veil, treat the Objector and the Judgment Debtors as one and the same, and hold them jointly liable for the decree.
12. The Objector filed a Further Affidavit sworn on 10th November 2025 by Shahame Aziz Mwidani, the Finance Manager, rejected the Advocate’s allegations and maintained that the Objector and the Respondents are separate and independent legal entities. He denied any collusion between himself, the Objector, and the Respondents, and stated that the Advocate had failed to appreciate the distinction between the companies.
13. The Objector stated that the related matter, Mombasa H.C. Comm. E032 of 2024, involved only the Advocate and the 2nd Respondent and was settled by the 2nd Respondent alone. That neither the Objector nor Shahame Aziz Mwidani participated in the settlement and that the Advocate’s assertions to the contrary were misleading. The Objector also challenged the Advocate’s claim that a proclamation in that matter had been served upon Shahame Aziz Mwidani, questioning why he would accept service in proceedings to which he was not a party. That the Advocate and the Auctioneer acted improperly and in concert to the detriment of both the Objector and the Respondents.
14. The Objector further complained about the conduct of the Auctioneer, noting that the same Auctioneer had proclaimed motor vehicle KDQ 323T in the settled matter and later proclaimed both KDQ 323T and KDC 038E in the present proceedings and in Mombasa HCCC Misc. E166 of 2021. It maintained that both vehicles belonged to the Objector and that ownership was reflected in NTSA records before the proclamation in the present matter. According to the Objector, KDC 038E was registered in its name on 17th June 2025 and KDQ 323T on 23rd June 2025, while the proclamation in the present case occurred on 21st July 2025, at a time when both vehicles were already owned by the Objector.
15. The Objector stated that the Auctioneer failed to conduct proper due diligence before proclaiming the vehicles and further alleged that the fixed assets listed in the proclamation at its restaurant premises belonged exclusively to it, as evidenced by invoices and receipts previously produced. It also claimed that the Auctioneer never physically visited the premises to carry out the proclamation but instead purportedly served notices through WhatsApp to the 2nd Respondent. The Objector described these actions as illegal and contrary to principles of natural justice and requested that the Auctioneer be summoned to explain how the proclamation was undertaken.
16. The Objector informed the court that it had initiated disciplinary proceedings before the Auctioneers Licensing Board in Milimani/ALB/Misc/88/2025 concerning the Auctioneer’s conduct. It further alleged that the Auctioneer acted unlawfully by proclaiming motor vehicle KDC 038E in two separate matters while an earlier attachment remained unresolved, contrary to the Civil Procedure framework governing execution.
17. On the substantive issues, the Objector stated that the Advocate was improperly attempting to lift the corporate veil without filing an appropriate application or presenting sufficient evidence. It denied being part of any ‘Elsek Group of Companies’ and challenged the Advocate to prove the existence of such a conglomerate. The Objector also denied any transfer, commingling, or movement of funds and assets between itself and the Respondents, contending that the allegations were speculative and unsupported by documentary evidence.
18. The Objector maintained that it and the Respondents are separate companies, incorporated independently, conducting separate businesses, and not related as parent, subsidiary, or merged entities. It emphasized that, under Article 260 of the Constitution, it is a distinct legal person, and under Article 40(2)(a), it enjoys constitutional protection against arbitrary deprivation of property.
19. In conclusion, the Objector stated that the attached vehicles and assets belong solely to it, that it is not liable for the debts of the Respondents, and that its property cannot lawfully be attached or sold to satisfy liabilities it did not incur. It therefore urged the court to uphold its separate legal personality and protect its assets from execution.
20. The application was canvassed by way of written submissions. The Objector in their submissions dated 9th November 2025 argued that the proclamation and attachment of the goods on 21st July 2025 were unlawful because the attached properties belonged exclusively to the Objector and not the Respondents, against whom the decree had been issued. That execution could only be levied against the judgment debtors named in the decree and warrants of attachment, neither of which mentioned the Objector.
21. The Objector maintained that it is a separate legal entity from the Respondents and that the Respondents had no legal or equitable interest in the proclaimed property. That the attachment violated its constitutional right to property under Articles 40 and 260 of the Constitution and infringed its right to a fair hearing under Article 50, as it had not been a party to the proceedings nor afforded an opportunity to be heard.
22. The Objector further argued that the court is constitutionally obligated under Articles 24 and 259 of the Constitution to protect and promote fundamental rights and freedoms and to interpret the Constitution in a manner that advances the rule of law and good governance. It asserted that the Advocate’s attempt to enforce the warrants against its property was illegal, malicious, and contrary to the principle established in Salomon v Salomon that a company is a separate legal entity distinct from its directors and shareholders.
23. The Objector submitted that the Advocate had not demonstrated any genuine attempt to execute against the Respondents and had merely relied on allegations that the Objector and the Respondents shared common directors and business interests. Relying on Joseph Kobia Nguthari v Kiegoi Tea Factory Company Limited & 2 others (2016) eKLR, the Objector contended that it would suffer substantial prejudice if its property were sold to satisfy the Respondents’ debt and therefore urged the court to lift and set aside the proclamation and attachment in their entirety.
24. The Advocate filed submissions dated 10th November 2025 and argued that the Objector was merely an alter ego of the 2nd Judgment Debtor and was being used to shield assets from execution. It was argued that motor vehicle registration No. KDQ323T (Toyota Land Cruiser V8) was purchased by the 2nd Judgment Debtor on 17th June 2025 using income generated from businesses operated through the Objector and was initially registered in his personal name.
25. Following its proclamation by auctioneers on 23rd June 2025 in execution of a decree issued in Mombasa H.C. Comm. Misc. No. E032 of 2024, the vehicle was allegedly transferred to the Objector on the same day without consideration in an attempt to defeat execution. The Advocate further contended that the vehicle remained under the use, control, and beneficial ownership of the 2nd Judgment-Debtor even after its transfer and subsequent release following settlement of the decree.
26. The Advocate maintained that the 2nd Judgment Debtor exercised complete control over the Objector, disregarding corporate formalities and freely using the company’s assets and funds as his own. It was asserted that there was extensive commingling of assets and finances between the Objector and the 2nd Judgment-Debtor, including unrestricted deposits and withdrawals from the Objector’s bank accounts, demonstrating a unity of ownership and interests that rendered the company’s separate legal personality illusory. According to the Advocate, the Objector functioned merely as an instrument, nominee, trustee, or facade through which the 2nd Judgment Debtor conducted his affairs and sought to evade liability to creditors.
27. The Advocate further argued that the Objector had failed to establish legal and beneficial ownership of the proclaimed assets, including motor vehicles KDQ323T and KDC038E, or to demonstrate that it held the assets on its own account rather than in trust for the Judgment Debtors. It was also contended that the Objector’s application was incompetent because the supporting and further affidavits sworn by Shahame Aziz Mwidani lacked the requisite corporate authority, he not being a director of the company. The Advocate accused the Objector of approaching the court with unclean hands through concealment of material facts, perjury, and efforts to secrete the Judgment Debtors’ assets.
28. Consequently, the Advocate urged the court to pierce or disregard the Objector’s corporate veil, find the Objector jointly liable with the Judgment Debtors for satisfaction of the decree, and dismiss the objector proceedings with costs. Reliance was placed on several prior decisions involving the parties and related entities to support the contention that the Objector formed part of a network of companies used by the 2nd Judgment Debtor to avoid creditor claims and frustrate execution of lawful court decrees.
Analysis
29. This court has considered the Notice of Motion application dated 30th July 2025, the Replying Affidavit sworn on 7th October 2025, the Further Affidavit sworn on 10th November 2025, and submissions. The issues for determination are: -
(a) Whether the Objector has established a legal or equitable interest in the attached properties sufficient to warrant the lifting of the proclamation and warrants of attachment under Order 22 Rules 51 and 52 of the Civil Procedure Rules.
(b) Who should bear costs
30. The law governing objector proceedings is well settled. An objector bears the burden of proving, on a balance of probabilities, that at the time of attachment it had a legal or equitable interest in the attached property. In Precast Portal Structures v Kenya Pencil Company Ltd & 2 others [1993] KEHC 100 (KLR), the court held that: -
“The objector must adduce evidence to show that at the date of the attachment he had a legal or equitable interest in the property. 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 …
The burden is on the objector to prove and establish his right to have the attached property released from the attachment.”
31. In Akiba Bank Limited vs Jetha & Sons Limited [2005] KEHC 2307 (KLR), the court emphasized that: -
“An Objector coming to court under Rule 57 of Order 21 of the Civil Procedure Rules (the Rules) so as to establish his claim to attached goods as required by Rule 56 of the same Order must exhibit evidence of his legal or equitable interest in the whole or part of any property attached in execution of a decree.”
32. The Objector's case is founded on the contention that it is a distinct legal entity from the Judgment Debtors and that the attached assets, including motor vehicles registration numbers KDQ 323T and KDC 038E, belong exclusively to it. It relies heavily on the doctrine of separate corporate personality established in the celebrated case of Salomon v Salomon, arguing that its property cannot be attached to satisfy the debts of another legal entity.
33. There can be no dispute that a duly incorporated company enjoys a separate legal personality distinct from its shareholders and directors. However, that principle is not absolute. Courts have consistently held that the corporate veil may be lifted where a company is used as a facade, sham, instrument of fraud, or device to evade legal obligations. In Victor Mabachi & another v Nurtun Bates Limited [2013] KECA 204 (KLR), the Court of Appeal reaffirmed that: -
“This being the case, Mediacom, as a body corporate, is a persona jurisdica, with a separate independent identity in law, distinct from its shareholders, director sand agents unless there are factors warranting a lifting of the veil. Thus in the case of Jones & Another vs. Lipman & Another (1962) 1 W.L.R 833, Russel, J held that if a company was thought to be a mere cloak or sham, a device or a mask which the defendant held to his face, in an attempt to avoid recognition by the eye of equity, the court could grant summary judgment even against the person behind that company.”
34. The evidence placed before the court raises serious questions regarding the relationship between the Objector and the 2nd Judgment Debtor. Of particular significance is the evidence relating to motor vehicle KDQ 323T. The material before the court shows that the vehicle was initially registered in the name of the 2nd Judgment Debtor and was proclaimed by auctioneers on 23rd June 2025 in execution of a decree in a related matter.
35. The NTSA records exhibited by the Advocate indicate that the vehicle was transferred to the Objector on the very same day following proclamation. No documentary evidence was produced showing that the transfer was supported by valuable consideration. The timing of the transfer lends credence to the Advocate's contention that the transfer was effected to place the asset beyond the reach of creditors.
36. Further, the Advocate exhibited evidence intended to demonstrate extensive commingling of assets and funds between the Objector and the 2nd Judgment Debtor. The allegations include unrestricted movement of funds, use of company assets for personal purposes, and disregard of corporate formalities. While the Objector denied these allegations, it did not provide sufficient documentary evidence to rebut the detailed material placed before the court concerning the operation and management of the company.
37. The court is also persuaded by the fact that the Objector's case rests substantially on the assertion of separate legal personality without adequately addressing the allegations that it functions merely as an instrument or nominee of the 2nd Judgment Debtor. In Jones & another v Lipman & another (1962) 1WLR 832, the court held: -
“… if a company was thought to be a mere cloak or sham, a device or a mask which the defendant held to his face, in an attempt to avoid recognition by the eye of equity, the court could grant summary judgement even against the person behind the said company.”
38. The court has considered the decision in Joseph Kobia Nguthari v Kiegoi Tea Factory Company Limited & 2 others (2016) eKLR relied upon by the Objector. That authority is distinguishable because in the present case there is substantial evidence suggesting that the disputed assets may be beneficially owned or controlled by the Judgment Debtor notwithstanding their registration in the Objector's name.
39. Objector proceedings are not intended to shield assets that are merely held in the name of third parties while remaining under the beneficial ownership and control of judgment debtors. Courts will look beyond formal documentation where circumstances indicate an attempt to conceal the true ownership of property.
40. Having carefully evaluated the affidavits, annexures, and submissions of the parties, this court finds that the Objector has failed to discharge the burden of proving that the attached assets are held exclusively for its own benefit and independent of the Judgment Debtors. Conversely, the Advocate has placed before the court sufficient material demonstrating a prima facie basis for treating the Objector as an extension or alter ego of the 2nd Judgment Debtor for purposes of execution.
Determination
41. Accordingly, this court makes the following orders: -
(a) The Objector's Notice of Motion dated 30th July 2025 is hereby dismissed.
(b) The Notice of Proclamation of Sale of Movable Property Nos. 508 and 509 dated 21st July 2025 is upheld.
(c) The Warrants of Attachment and Sale issued on 16th July 2025 shall remain in force.
(d) The Advocate/Decree Holder shall be at liberty to proceed with execution in accordance with the law.
(e) The costs of the application shall be borne by the Objector.
Dated and delivered virtually at Mombasa this 25th day of June, 2026
………………………..
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
N/A by the Advocate/ Respondent
Dr. Khaminwa Advocate for the Objector/ Applicant
Ms. Salwa, Court Assistant