1. This is a Ruling arising out of the Decree Holder/Plaintiff/Judgment Creditor’s application by way of a Notice of Motion dated 11th June, 2025. It seeks orders to attach all the shares held by Spire Bank Limited. It also seeks for the attendance of the Directors of the Judgment Debtor/Defendant in Court. This is for purposes of oral cross-examination of the Judgment Debtor’s attachable assets. This is therefore a post judgment application seeking for the attachment or tracing for the Judgment Debtor’s assets, for purposes of attachment.
Background Facts
2. The application by way of a Notice of Motion dated 11th June, 2025, seeks the following orders;
a) Spent.
b) THAT pending the hearing and determination of this application, inter partes, the Honourable Court be pleased to issue a prohibitory order restraining SPIRE BANK LIMITED (Formerly Southern Credit Banking Corporation Limited), the Judgment Debtor, from transferring any/all the shares owned by the Judgment Debtor.
c) THAT the Honourable Court do issue an order for attachment and sale of all the shares held by SPIRE BANK LIMITED (formerly Southern Credit Banking Corporation Limited) in the realization of the decretal sum of Kshs.36,325,025 plus interest and costs.
d) THAT the Honourable Court be pleased to issue and order directing BRIAN MAINGI KILONZO, JOEL MUNGAI GACHARI, WELLINGTON ANJANO OTIENDE, WILLIAM RAHEDI and or KENNETH ODHIAMBO OPIYO, the directors of SPIRE BANK LIMITED (Formerly Southern Credit Banking Corporation Limited) to attend court on the appointed day, to be orally examined as to the business and affairs of the 1st Defendant/Judgment Debtor and the property or properties of the Respondent/Judgment Debtor or the 1st Defendant/Judgment Debtor’s means of satisfying the decretal amount sum of Kshs.36,325,025.
e) THAT the Honourable Court be pleased to issue an order directing BRIAN MAINGI KILONZO, JOEL MUNGAI GACHARI, WELLINGTON ANJANO OTIENDE; WILLIAM RAHEDI and/or KENNETH ODHIAMBO OPIYO in their capacity as the directors of the 1st Defendant/Judgment Debtor to produce before the Court;
(i) Any books of account, cheque books, bank statements and statutory documents relating to the operations and the transactions of the Respondent/Judgment Debtor and the said directors be examined on oath as to the said documents from 2020 to date.
(ii) Financial documents, list of assets, bank account numbers any account of monies and or dividends or any form of payments on behalf of Spire Bank Limited.
f) THAT the Honourable Court be pleased to grant any other or better order/relief as shall meet the ends of justice.
g) THAT the costs of the application be provided for.
3. The application is supported by the affidavit of Mahmood Kassam Miyanji. He depones that the Court entered judgment in favour of the Plaintiff/Judgment Creditor on 21st March, 2024. It directed that it be paid Ksh.36,322,025. This payment has not been effected to date.
4. That the 1st Defendant has admitted that it is going through a process of voluntary liquidation. That it has 2,270,000,000 ordinary shares valued at Ksh5/= each. It is these shares that the Judgment Creditor wishes to attach in satisfaction of the decretal sum.
5. That the 1st Defendant/Judgment Debtor has no assets capable of attachment. The Directors ought to be summoned and examined as to the business affairs of the 1st Defendant/Judgment Debtor. This is with a view to satisfying the decretal sum herein.
6. The application is opposed. This is through the Replying Affidavit of Brian Kilonzo sworn on 20th June, 2025. He deponed that the application is misconceived, premature and fatally defective and ought to be struck out with costs.
7. That judgment was entered on 4th September, 2020 in favour of the Plaintiff. This was followed by an application for calculation of interest dated 5th June, 2023. It was allowed on 21.3.2024. Subsequently a decree issued dated 4th April, 2024.
8. The Judgment Debtor filed an application for review which was dismissed vide a ruling delivered on 17th March, 2025.
9. This led to the Judgment Debtor filing an application to the Court of Appeal in Civil Application No. E227 of 2025. This was for extension of time to file an appeal. This was followed by an application for a stay pending appeal in Court of Appeal Civil Application No. E232 of 2025. Submissions have been filed in both applications. The parties are awaiting a date for highlighting of submissions before the Court of Appeal.
10. It is therefore submitted that if the orders sought herein are allowed, they would render the two applications pending before the Court of Appeal, nugatory and academic exercises.
11. That the 1st Defendant/Judgment Debtor has been put under voluntary liquidation. A member’s resolution has already been made. It is awaiting the Central Bank approval and appointment of the Official Liquidator by Central Bank of Kenya.
12. That once the company is liquidated, a moratorium shall come into force. It will restrict or stay further actions against the company, save through the liquidator.
Issues for Determination
13. The Court has carefully considered the application, the response, written submissions and the oral highlights by Counsel for the parties. The court frames two issues for determination:
a) Whether the 1st Defendant/Judgment Debtor is in liquidation making the application defective, premature, misconceived or unmerited.
b) Whether the Court should grant the orders sought in the Notice of Motion dated 11th June 2025.
Analysis
14. This is a post judgment application, seeking to execute the Decree.
a) Whether the 1st Defendant/Judgment Debtor is in liquidation making the application defective, premature, misconceived or unmerited.
15. The Applicants wish to attach the shares of the Judgment Debtor in satisfaction of the Decree of this Court.
16. The Respondent avers that it is going through a voluntary liquidation. Hence no attachment ought to take place.
17. The Respondent has attached a Gazette Notice dated 12th January, 2024. It shows a Gazette Notice Number 209. By a Notice dated 5th July 2024, the Board chairperson of the 1st Defendant gave Notice of the Members Voluntary Liquidation. This is pursuant to Section 393 (1) (b) of the Insolvency Act. It further sought that the Central Bank of Kenya appoints the Kenya Deposits Insurance Corporation as liquidator pursuant to Section 54 (1) (b) (ii) of the Kenya Deposits Insurance Act. The resolution by the members is said to have been passed on 22nd December, 2023.
18. The 1st Defendant/Judgment Debtor relies on Section 395 of the Insolvency Act which states as follows;
(i) “395 when liquidation commences
(ii) The Voluntary Liquidation of a company commence when the resolution for voluntary liquidation is passed.”
19. The 1st Defendant/Judgment Debtor relies upon the case of In re of Kenyon Limited (Under Liquidation) [2020] KEHC 2963 (KLR) (KLR) where the Court held;
(i) “It follows that the second issue is found in favour of the liquidation because Section 481 of the Act stops any execution or attachment against goods or land of a company undergoing liquidation.”
20. The applicant resists this argument maintaining that the 1st Defendant has not been placed under any statutory liquidation. For that reason, the attachment can proceed.
21. The Court notes that the 1st Defendant has voluntarily entered into liquidation. This is pursuant to Section 395 of the Insolvency Act.
22. The act of voluntary liquidation does not in itself create a statutory moratorium applicable to Court liquidations.
23. It is worth noting that no Official Liquidator or Interim Liquidator has been appointed. The Gazette Notice referred to makes reference to the liquidation being subject to the approval of the Central Bank of Kenya. The proposal in the resolution to liquidate is that the Kenya Deposit Insurance Corporation be appointed the liquidator. There is no evidence of such an appointment. If the Central bank of Kenya had put its seal of approval in this member liquidation, the evidence of appointment of a provisional liquidator would have been before the Court. It follows therefore that there is no automatic prohibition against execution.
24. The Court distinguishes this member voluntary liquidation from that of an ordinary company. This is because this is a banking institution licensed by the Central Bank of Kenya.
25. The Court refers to the provisions of Section 432 (2) of the Insolvency Act which states as follows;
(i) “When a liquidation order has been made or a provisional liquidator has been appointed, legal proceedings against the company may be begun or continued only with the approval of the Court and subject to such conditions as the Court considers appropriate.”
26. Banks belong to a special category in that they are legally and heavily regulated by the Central Bank of Kenya. They can’t dissolve themselves without the involvement of the Central Bank of Kenya. They cannot commit a corporate boardroom ‘harakiri’ or ‘seppuku’. They cannot unilaterally engineer their own dissolution or commit corporate self-immolation. They cannot choose their own Liquidator without the approval of the Central Bank of Kenya. Statute has created the Kenya Deposit Insurance Corporation to act as Liquidator of banks.
27. The Court must draw a sharp distinction between the members' voluntary liquidation of an ordinary trading company under the Insolvency Act and that of the 1st Defendant, a banking institution previously licensed and heavily regulated by the Central Bank of Kenya. Pursuant to Section 34A (1) of the Banking Act (Cap 488), an institution may voluntarily liquidate itself only with the express, prior approval of the Central Bank. Furthermore, under Section 35 of the Banking Act, upon a determination of insolvency, statutory mechanisms automatically trigger the appointment of the Kenya Deposit Insurance Corporation (KDIC) as the liquidator. A mere shareholders' resolution to liquidate, lacking the formal, gazetted approval of the Central Bank of Kenya and the legal appointment of the KDIC, cannot operate in a vacuum to create a statutory shield or moratorium against ongoing execution proceedings sanctioned by this Court.
28. It would therefore follow that in absence of a Court liquidation order, appointment of a provisional or interim liquidator, appointment of the Kenya Deposit Insurance Corporation as liquidator or a specific injunction order of stay, the Court would hesitate to stop the execution process. The Court follows the decision of H.I Ong’udi. J. in Invesco Assurance Co. Ltd v Kinyanjui Njuguna & Co. Advocates & another [2020] KEHC 2628 (KLR)
29. The resolution to voluntarily liquidate Spire Bank Limited does not act as an automatic stay of execution of Court proceedings.
b) Whether the court should grant the orders sought in the Notice of Motion dated 11th June 2025.
30. The Applicant intends to proceed against the Judgment Debtor despite two pending applications before the Court of Appeal.
31. To this Court the answer lies in whether the Court of Appeal has granted a stay of proceedings or execution. If the Court of Appeal was seized of the application and has NOT granted a stay of execution, nothing bars this Court from proceeding in effecting its own post judgement processes. The Court is guided by the unequivocal provisions of Order 42 Rule 6(1) of the Civil Procedure Rules, which state that no appeal or application for an appeal shall operate as an automatic stay of execution or proceedings under a decree. Until the Court of Appeal is formally seized of the matter and issues a positive injunctive order of stay, nothing bars this Court from proceeding to effect its own post-judgment processes. To hold otherwise would allow judgment debtors to perpetually frustrate the execution of lawful decrees through the mere filing of procedural applications at the appellate level
32. The Court system would stall/and eventually collapse if every time a party filed an application for stay to the Court of Appeal, the Court would down its tools or stay its processes or judgment. This is all the while awaiting the outcome of such appeals. Needless to state that in applicable cases, the statutes do dictate when an appeal does act as a stay of proceedings or execution. In this case the statute does not state so. “The Court’s hands are not tied up.”
33. On attachment of shares the Court refers to Order 22 Rule 40 (1) and (2) of the Civil Procedure Rules. It states as follows:
a) 40. Attachment of share and other property not in possession of judgment-debtor [Order 22, rule 40.]
(1) In the case of—
(a) a share in the capital of a corporation;
(b) or other movable property not in the possession of the judgment-debtor, for the attachment of which specific provision is not made by these Rules the attachment shall be made by a written order prohibiting—
b. in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;
c. or in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.
(1) A copy of such order shall be affixed on some conspicuous part of the precincts of the court, and another copy shall be sent, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid) to the person in possession of the same.
(2) If the person in possession of the movable property does not lay claim to such property under rule 51, the Court may make an order for actual seizure of the property as if it were in the possession of the judgment-debtor.
34. The argument by the Applicant is that the 1st Defendant/Judgment Debtor has 2,270,000,000 ordinary shares. That they ought to be attached in settlement of the decretal sum.
35. The 1st Defendant submits that the attachment sought is in respect of shares held in possession of the company itself. This is in contrary to Order 22 Rule 40 of the Civil Procedure Rules which contemplates attachment of shares not in possession of the company.
36. The Court agrees with the 1st Defendant/Judgment Debtor that the attachment contemplated is of any shares not in possession of the company itself.
37. To this Court what is contemplated is the attachment of the shares that the 1st Defendant/Judgment Debtor owns or holds but are shares in other companies or corporations. By way of illustration this could be shares held by the 1st Defendant/Judgment Debtor in Mburoti Maguta Maguta Ltd or Benki ya Wasanii wa Sanaa Ltd (all fictitious corporations). Clearly this is not the case in this application. The Court follows the decision of D.K. Maraga, J (as then was) in Anil Walia vs Vijay Vir Singh & Another (2010) KEHC 2150 (KLR).
38. To this Court, what Order 22 Rule 40 strictly contemplates is the attachment of shares that the Judgment Debtor owns as a distinct financial asset in other, separate corporate entities. A company's own authorized and issued share capital represents the equity held by its shareholders; it is not a tangible or attachable asset belonging to the corporate entity itself. Attempting to attach the 1st Defendant's own 2,270,000,000 shares to satisfy a judgment debt owed by the 1st Defendant is legally impermissible and commercially incongruous, as it seeks to conflate the property of the shareholders with the property of the company.
39. This mode of execution is therefore declined.
40. Finally, the Applicant wishes to have the Directors of the 1st Defendant summoned to be cross-examined on oath as to the assets and affairs of the 1st Defendant/ Judgment Debtor. The Court has been referred to the cases in Masefield Trading (K) Ltd vs Rushmore Company Limited & Ano. [2009] and Roseline Awino Okwach & another v Pan Africa Insurance Company & 2 others [2016] KEHC 5092 (KLR).
41. The 1st Defendant views this as an omnibus application. They cite the case of Pyaralal Muhand Bheru Rajput v Barclays Bank of Kenya Ltd & 3 others [2004] eKLR, Civil Case No. 38 of 2004. They rely Oni Properties Limited v Sigal Investments Limited [2021] KEELC 2568 (KLR). This is to the effect that summoning of directors should occur once the Judgment Creditor demonstrates that it cannot recover the debt in any other manner.
42. The Court makes reference to Order 22 Rule 35 of the Civil Procedure Rules which states as follows:
(i) “35. Examination of judgment-debtor as to his property [Order 22, rule 35.]
(ii) 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;
(c) or any other person,
(iii) 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.”
43. The Court perceives this provision as granting the Court wide powers in assisting the Judgment Creditor trace the assets of the Judgment Debtor. It is not for the Judgment Debtor to state that it has not been demonstrated that all efforts have been made to recover the debts. The Debtor has not settled the debt. To this Court that is a sufficient reason to invoke the provision of Order 22 Rule 35 of the Civil Procedure Rules. The Court refers Devnarayan Enterprises Ltd v Rotice & 6 others [2024] KEELC 1806 (KLR); Robert Kinaga Waweru v Northcorr Enterprises Ltd [2021] KEHC 6093 (KLR) and Berlin Equipment Limited v Mascor Kenya Limited [2025] KEHC 9373 (KLR).
44. The Court is persuaded to grant this prayer.
45. As to costs the same lie at discretion. They ordinarily follow the event. The same are awarded to the Applicant.
Determination
46. The Plaintiff Judgment Creditor/Applicant’s application by way of a Notice of Motion dated 11th June, 2025 is allowed as follows;
a) THAT the Honourable Court HEREBY issues an order directing BRIAN MAINGI KILONZO, JOEL MUNGAI GACHARI, WELLINGTON ANJANO OTIENDE, WILLIAM RAHEDI and or KENNETH ODHIAMBO OPIYO, the directors of SPIRE BANK LIMITED (Formerly Southern Credit Banking Corporation Limited) to attend Court on the appointed day, to be orally examined as to the business and affairs of the 1st Defendant/Judgment Debtor and the property or properties of the Respondent/Judgment Debtor or the 1st Defendant/Judgment Debtor’s means of satisfying the decretal amount sum of Kshs.36,325,025.
b) THAT the Honourable Court HEREBY issues an order directing BRIAN MAINGI KILONZO, JOEL MUNGAI GACHARI, WELLINGTON ANJANO OTIENDE; WILLIAM RAHEDI and/or KENNETH ODHIAMBO OPIYO in their capacity as the directors of the 1st Defendant/Judgment Debtor to produce before the Court;
(i) Any books of account, cheque books, bank statements and statutory documents relating to the operations and the transactions of the Respondent/Judgment Debtor and the said directors be examined on oath as to the said documents from 2020 to date.
(ii) Financial documents, list of assets, bank account numbers any account of monies and or dividends or any form of payments on behalf of Spire Bank Limited.
(c) The costs of the application are awarded to the Applicant/Judgment Creditor.
47. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 20TH DAY OF JULY, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Musesya for the Plaintiff/Judgment Creditor.
Miss Kibii for the 1st Defendant/judgment Debtor.
Mr. John Paul - Court Assistant
Background Facts
2. The application by way of a Notice of Motion dated 11th June, 2025, seeks the following orders;
a) Spent.
b) THAT pending the hearing and determination of this application, inter partes, the Honourable Court be pleased to issue a prohibitory order restraining SPIRE BANK LIMITED (Formerly Southern Credit Banking Corporation Limited), the Judgment Debtor, from transferring any/all the shares owned by the Judgment Debtor.
c) THAT the Honourable Court do issue an order for attachment and sale of all the shares held by SPIRE BANK LIMITED (formerly Southern Credit Banking Corporation Limited) in the realization of the decretal sum of Kshs.36,325,025 plus interest and costs.
d) THAT the Honourable Court be pleased to issue and order directing BRIAN MAINGI KILONZO, JOEL MUNGAI GACHARI, WELLINGTON ANJANO OTIENDE, WILLIAM RAHEDI and or KENNETH ODHIAMBO OPIYO, the directors of SPIRE BANK LIMITED (Formerly Southern Credit Banking Corporation Limited) to attend court on the appointed day, to be orally examined as to the business and affairs of the 1st Defendant/Judgment Debtor and the property or properties of the Respondent/Judgment Debtor or the 1st Defendant/Judgment Debtor’s means of satisfying the decretal amount sum of Kshs.36,325,025.
e) THAT the Honourable Court be pleased to issue an order directing BRIAN MAINGI KILONZO, JOEL MUNGAI GACHARI, WELLINGTON ANJANO OTIENDE; WILLIAM RAHEDI and/or KENNETH ODHIAMBO OPIYO in their capacity as the directors of the 1st Defendant/Judgment Debtor to produce before the Court;
(i) Any books of account, cheque books, bank statements and statutory documents relating to the operations and the transactions of the Respondent/Judgment Debtor and the said directors be examined on oath as to the said documents from 2020 to date.
(ii) Financial documents, list of assets, bank account numbers any account of monies and or dividends or any form of payments on behalf of Spire Bank Limited.
f) THAT the Honourable Court be pleased to grant any other or better order/relief as shall meet the ends of justice.
g) THAT the costs of the application be provided for.
3. The application is supported by the affidavit of Mahmood Kassam Miyanji. He depones that the Court entered judgment in favour of the Plaintiff/Judgment Creditor on 21st March, 2024. It directed that it be paid Ksh.36,322,025. This payment has not been effected to date.
4. That the 1st Defendant has admitted that it is going through a process of voluntary liquidation. That it has 2,270,000,000 ordinary shares valued at Ksh5/= each. It is these shares that the Judgment Creditor wishes to attach in satisfaction of the decretal sum.
5. That the 1st Defendant/Judgment Debtor has no assets capable of attachment. The Directors ought to be summoned and examined as to the business affairs of the 1st Defendant/Judgment Debtor. This is with a view to satisfying the decretal sum herein.
6. The application is opposed. This is through the Replying Affidavit of Brian Kilonzo sworn on 20th June, 2025. He deponed that the application is misconceived, premature and fatally defective and ought to be struck out with costs.
7. That judgment was entered on 4th September, 2020 in favour of the Plaintiff. This was followed by an application for calculation of interest dated 5th June, 2023. It was allowed on 21.3.2024. Subsequently a decree issued dated 4th April, 2024.
8. The Judgment Debtor filed an application for review which was dismissed vide a ruling delivered on 17th March, 2025.
9. This led to the Judgment Debtor filing an application to the Court of Appeal in Civil Application No. E227 of 2025. This was for extension of time to file an appeal. This was followed by an application for a stay pending appeal in Court of Appeal Civil Application No. E232 of 2025. Submissions have been filed in both applications. The parties are awaiting a date for highlighting of submissions before the Court of Appeal.
10. It is therefore submitted that if the orders sought herein are allowed, they would render the two applications pending before the Court of Appeal, nugatory and academic exercises.
11. That the 1st Defendant/Judgment Debtor has been put under voluntary liquidation. A member’s resolution has already been made. It is awaiting the Central Bank approval and appointment of the Official Liquidator by Central Bank of Kenya.
12. That once the company is liquidated, a moratorium shall come into force. It will restrict or stay further actions against the company, save through the liquidator.
Issues for Determination
13. The Court has carefully considered the application, the response, written submissions and the oral highlights by Counsel for the parties. The court frames two issues for determination:
a) Whether the 1st Defendant/Judgment Debtor is in liquidation making the application defective, premature, misconceived or unmerited.
b) Whether the Court should grant the orders sought in the Notice of Motion dated 11th June 2025.
Analysis
14. This is a post judgment application, seeking to execute the Decree.
a) Whether the 1st Defendant/Judgment Debtor is in liquidation making the application defective, premature, misconceived or unmerited.
15. The Applicants wish to attach the shares of the Judgment Debtor in satisfaction of the Decree of this Court.
16. The Respondent avers that it is going through a voluntary liquidation. Hence no attachment ought to take place.
17. The Respondent has attached a Gazette Notice dated 12th January, 2024. It shows a Gazette Notice Number 209. By a Notice dated 5th July 2024, the Board chairperson of the 1st Defendant gave Notice of the Members Voluntary Liquidation. This is pursuant to Section 393 (1) (b) of the Insolvency Act. It further sought that the Central Bank of Kenya appoints the Kenya Deposits Insurance Corporation as liquidator pursuant to Section 54 (1) (b) (ii) of the Kenya Deposits Insurance Act. The resolution by the members is said to have been passed on 22nd December, 2023.
18. The 1st Defendant/Judgment Debtor relies on Section 395 of the Insolvency Act which states as follows;
(i) “395 when liquidation commences
(ii) The Voluntary Liquidation of a company commence when the resolution for voluntary liquidation is passed.”
19. The 1st Defendant/Judgment Debtor relies upon the case of In re of Kenyon Limited (Under Liquidation) [2020] KEHC 2963 (KLR) (KLR) where the Court held;
(i) “It follows that the second issue is found in favour of the liquidation because Section 481 of the Act stops any execution or attachment against goods or land of a company undergoing liquidation.”
20. The applicant resists this argument maintaining that the 1st Defendant has not been placed under any statutory liquidation. For that reason, the attachment can proceed.
21. The Court notes that the 1st Defendant has voluntarily entered into liquidation. This is pursuant to Section 395 of the Insolvency Act.
22. The act of voluntary liquidation does not in itself create a statutory moratorium applicable to Court liquidations.
23. It is worth noting that no Official Liquidator or Interim Liquidator has been appointed. The Gazette Notice referred to makes reference to the liquidation being subject to the approval of the Central Bank of Kenya. The proposal in the resolution to liquidate is that the Kenya Deposit Insurance Corporation be appointed the liquidator. There is no evidence of such an appointment. If the Central bank of Kenya had put its seal of approval in this member liquidation, the evidence of appointment of a provisional liquidator would have been before the Court. It follows therefore that there is no automatic prohibition against execution.
24. The Court distinguishes this member voluntary liquidation from that of an ordinary company. This is because this is a banking institution licensed by the Central Bank of Kenya.
25. The Court refers to the provisions of Section 432 (2) of the Insolvency Act which states as follows;
(i) “When a liquidation order has been made or a provisional liquidator has been appointed, legal proceedings against the company may be begun or continued only with the approval of the Court and subject to such conditions as the Court considers appropriate.”
26. Banks belong to a special category in that they are legally and heavily regulated by the Central Bank of Kenya. They can’t dissolve themselves without the involvement of the Central Bank of Kenya. They cannot commit a corporate boardroom ‘harakiri’ or ‘seppuku’. They cannot unilaterally engineer their own dissolution or commit corporate self-immolation. They cannot choose their own Liquidator without the approval of the Central Bank of Kenya. Statute has created the Kenya Deposit Insurance Corporation to act as Liquidator of banks.
27. The Court must draw a sharp distinction between the members' voluntary liquidation of an ordinary trading company under the Insolvency Act and that of the 1st Defendant, a banking institution previously licensed and heavily regulated by the Central Bank of Kenya. Pursuant to Section 34A (1) of the Banking Act (Cap 488), an institution may voluntarily liquidate itself only with the express, prior approval of the Central Bank. Furthermore, under Section 35 of the Banking Act, upon a determination of insolvency, statutory mechanisms automatically trigger the appointment of the Kenya Deposit Insurance Corporation (KDIC) as the liquidator. A mere shareholders' resolution to liquidate, lacking the formal, gazetted approval of the Central Bank of Kenya and the legal appointment of the KDIC, cannot operate in a vacuum to create a statutory shield or moratorium against ongoing execution proceedings sanctioned by this Court.
28. It would therefore follow that in absence of a Court liquidation order, appointment of a provisional or interim liquidator, appointment of the Kenya Deposit Insurance Corporation as liquidator or a specific injunction order of stay, the Court would hesitate to stop the execution process. The Court follows the decision of H.I Ong’udi. J. in Invesco Assurance Co. Ltd v Kinyanjui Njuguna & Co. Advocates & another [2020] KEHC 2628 (KLR)
29. The resolution to voluntarily liquidate Spire Bank Limited does not act as an automatic stay of execution of Court proceedings.
b) Whether the court should grant the orders sought in the Notice of Motion dated 11th June 2025.
30. The Applicant intends to proceed against the Judgment Debtor despite two pending applications before the Court of Appeal.
31. To this Court the answer lies in whether the Court of Appeal has granted a stay of proceedings or execution. If the Court of Appeal was seized of the application and has NOT granted a stay of execution, nothing bars this Court from proceeding in effecting its own post judgement processes. The Court is guided by the unequivocal provisions of Order 42 Rule 6(1) of the Civil Procedure Rules, which state that no appeal or application for an appeal shall operate as an automatic stay of execution or proceedings under a decree. Until the Court of Appeal is formally seized of the matter and issues a positive injunctive order of stay, nothing bars this Court from proceeding to effect its own post-judgment processes. To hold otherwise would allow judgment debtors to perpetually frustrate the execution of lawful decrees through the mere filing of procedural applications at the appellate level
32. The Court system would stall/and eventually collapse if every time a party filed an application for stay to the Court of Appeal, the Court would down its tools or stay its processes or judgment. This is all the while awaiting the outcome of such appeals. Needless to state that in applicable cases, the statutes do dictate when an appeal does act as a stay of proceedings or execution. In this case the statute does not state so. “The Court’s hands are not tied up.”
33. On attachment of shares the Court refers to Order 22 Rule 40 (1) and (2) of the Civil Procedure Rules. It states as follows:
a) 40. Attachment of share and other property not in possession of judgment-debtor [Order 22, rule 40.]
(1) In the case of—
(a) a share in the capital of a corporation;
(b) or other movable property not in the possession of the judgment-debtor, for the attachment of which specific provision is not made by these Rules the attachment shall be made by a written order prohibiting—
b. in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;
c. or in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.
(1) A copy of such order shall be affixed on some conspicuous part of the precincts of the court, and another copy shall be sent, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid) to the person in possession of the same.
(2) If the person in possession of the movable property does not lay claim to such property under rule 51, the Court may make an order for actual seizure of the property as if it were in the possession of the judgment-debtor.
34. The argument by the Applicant is that the 1st Defendant/Judgment Debtor has 2,270,000,000 ordinary shares. That they ought to be attached in settlement of the decretal sum.
35. The 1st Defendant submits that the attachment sought is in respect of shares held in possession of the company itself. This is in contrary to Order 22 Rule 40 of the Civil Procedure Rules which contemplates attachment of shares not in possession of the company.
36. The Court agrees with the 1st Defendant/Judgment Debtor that the attachment contemplated is of any shares not in possession of the company itself.
37. To this Court what is contemplated is the attachment of the shares that the 1st Defendant/Judgment Debtor owns or holds but are shares in other companies or corporations. By way of illustration this could be shares held by the 1st Defendant/Judgment Debtor in Mburoti Maguta Maguta Ltd or Benki ya Wasanii wa Sanaa Ltd (all fictitious corporations). Clearly this is not the case in this application. The Court follows the decision of D.K. Maraga, J (as then was) in Anil Walia vs Vijay Vir Singh & Another (2010) KEHC 2150 (KLR).
38. To this Court, what Order 22 Rule 40 strictly contemplates is the attachment of shares that the Judgment Debtor owns as a distinct financial asset in other, separate corporate entities. A company's own authorized and issued share capital represents the equity held by its shareholders; it is not a tangible or attachable asset belonging to the corporate entity itself. Attempting to attach the 1st Defendant's own 2,270,000,000 shares to satisfy a judgment debt owed by the 1st Defendant is legally impermissible and commercially incongruous, as it seeks to conflate the property of the shareholders with the property of the company.
39. This mode of execution is therefore declined.
40. Finally, the Applicant wishes to have the Directors of the 1st Defendant summoned to be cross-examined on oath as to the assets and affairs of the 1st Defendant/ Judgment Debtor. The Court has been referred to the cases in Masefield Trading (K) Ltd vs Rushmore Company Limited & Ano. [2009] and Roseline Awino Okwach & another v Pan Africa Insurance Company & 2 others [2016] KEHC 5092 (KLR).
41. The 1st Defendant views this as an omnibus application. They cite the case of Pyaralal Muhand Bheru Rajput v Barclays Bank of Kenya Ltd & 3 others [2004] eKLR, Civil Case No. 38 of 2004. They rely Oni Properties Limited v Sigal Investments Limited [2021] KEELC 2568 (KLR). This is to the effect that summoning of directors should occur once the Judgment Creditor demonstrates that it cannot recover the debt in any other manner.
42. The Court makes reference to Order 22 Rule 35 of the Civil Procedure Rules which states as follows:
(i) “35. Examination of judgment-debtor as to his property [Order 22, rule 35.]
(ii) 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;
(c) or any other person,
(iii) 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.”
43. The Court perceives this provision as granting the Court wide powers in assisting the Judgment Creditor trace the assets of the Judgment Debtor. It is not for the Judgment Debtor to state that it has not been demonstrated that all efforts have been made to recover the debts. The Debtor has not settled the debt. To this Court that is a sufficient reason to invoke the provision of Order 22 Rule 35 of the Civil Procedure Rules. The Court refers Devnarayan Enterprises Ltd v Rotice & 6 others [2024] KEELC 1806 (KLR); Robert Kinaga Waweru v Northcorr Enterprises Ltd [2021] KEHC 6093 (KLR) and Berlin Equipment Limited v Mascor Kenya Limited [2025] KEHC 9373 (KLR).
44. The Court is persuaded to grant this prayer.
45. As to costs the same lie at discretion. They ordinarily follow the event. The same are awarded to the Applicant.
Determination
46. The Plaintiff Judgment Creditor/Applicant’s application by way of a Notice of Motion dated 11th June, 2025 is allowed as follows;
a) THAT the Honourable Court HEREBY issues an order directing BRIAN MAINGI KILONZO, JOEL MUNGAI GACHARI, WELLINGTON ANJANO OTIENDE, WILLIAM RAHEDI and or KENNETH ODHIAMBO OPIYO, the directors of SPIRE BANK LIMITED (Formerly Southern Credit Banking Corporation Limited) to attend Court on the appointed day, to be orally examined as to the business and affairs of the 1st Defendant/Judgment Debtor and the property or properties of the Respondent/Judgment Debtor or the 1st Defendant/Judgment Debtor’s means of satisfying the decretal amount sum of Kshs.36,325,025.
b) THAT the Honourable Court HEREBY issues an order directing BRIAN MAINGI KILONZO, JOEL MUNGAI GACHARI, WELLINGTON ANJANO OTIENDE; WILLIAM RAHEDI and/or KENNETH ODHIAMBO OPIYO in their capacity as the directors of the 1st Defendant/Judgment Debtor to produce before the Court;
(i) Any books of account, cheque books, bank statements and statutory documents relating to the operations and the transactions of the Respondent/Judgment Debtor and the said directors be examined on oath as to the said documents from 2020 to date.
(ii) Financial documents, list of assets, bank account numbers any account of monies and or dividends or any form of payments on behalf of Spire Bank Limited.
(c) The costs of the application are awarded to the Applicant/Judgment Creditor.
47. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 20TH DAY OF JULY, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Musesya for the Plaintiff/Judgment Creditor.
Miss Kibii for the 1st Defendant/judgment Debtor.
Mr. John Paul - Court Assistant