Background and Introduction
1. For determination is the Notice of Motion application dated 14th January 2025, brought under Sections 68 and 69 of the Land Registration Act, Sections 1A, 1B, and 3A of the Civil Procedure Act, and Order 22 Rules 9, 35, 48 and 55, as well as Order 51 of the Civil Procedure Rules. The application is supported by the affidavit of CAROLYNE MUTHUE and is premised on the grounds set out on its face.
2. In the application, the decree holder seeks, among other orders, a prohibition against the respondent from transferring or charging the property known as L.R. No. 2/406 (Orig. No. 2/69/2), (the suit property), and for the said prohibition to be registered against the property’s title. The applicant further seeks the attachment and sale of the suit property to satisfy the decree dated 11th July 2023.
3. Additionally, the applicant prays that the respondent’s directors namely; James Aggrey Ojwang, Wallace Kimani Ngina, Jasper Odhiambo Lubeto, Henry Mburu Waweru, and Brian Okoth be summoned to court for oral examination on the respondent’s means of satisfying the decree, and that they be compelled to produce books of accounts, a valuation report of the property, and other relevant documentation from incorporation to date.
4. In default of compliance with these orders, the applicant seeks that the corporate veil be lifted and the directors held personally liable for the decretal sum.
5. Despite service of the application upon the respondent, there is no record of any response or written submissions having been filed. As at the time of preparing this ruling, the respondent had not complied with the directions issued by the Court. Accordingly, the application proceeds as unopposed. However, the Court remains duty-bound to assess the application on its own merit and to satisfy itself that the reliefs sought are justified in law and on the facts presented.
Analysis and Determination
6. I have considered the application, supporting affidavit and the submissions filed by the applicant. The applicant has demonstrated that judgment was entered by this Court in its favour, pursuant to the final arbitral award dated 15th December 2021. A decree was subsequently issued on 11th July 2023. The applicant avers that the decree remains unsatisfied, an assertion which remains unchallenged.
7. To support the application for enforcement, the applicant has produced a conveyance dated 3rd December 2012, which is evidence that the respondent is the registered proprietor of the suit property, having purchased it from Kamere Estates Limited. The ownership of the said property has not been disputed.
8. In further support, the applicant has annexed a CR12 extract dated 8th January 2025, confirming that the current directors of the respondent are JAMES AGGREY OJWANG, WALLACE KIMANI NGINA, HENRY MBURU WAWERU, and BRIAN OKOTH KADIRI.
9. On the basis of the uncontroverted evidence presented by the applicant, I am satisfied that a proper factual and legal foundation has been laid for the grant of the substantive reliefs sought in the application. The applicant has demonstrated that the respondent is yet to satisfy the decree issued on 11th July 2023, and there is a credible apprehension that the subject property may be disposed of or encumbered to frustrate execution.
10. In this regard, the prayers seeking prohibitory orders under Sections 68 and 69 of the Land Registration Act are well-founded, as they serve to preserve the suit property pending conclusion of execution proceedings. These provisions empower the Court to issue a restriction or inhibition against any dealings with registered land where such dealings may prejudice the interests of a party.
11. Further, the procedure invoked by the applicant under Order 22 of the Civil Procedure Rules provides for post-judgment discovery measures designed to aid in the effective enforcement of decrees. These include oral examination of judgment debtors or their officers, production of financial records, and identification of attachable assets. The application of these measures is particularly appropriate in circumstances where the judgment debtor is a corporate entity and its means are not readily ascertainable.
12. The applicant seeks the lifting of the corporate veil under prayer (6). While the Court recognizes that such an order may ultimately be necessary where the directors are shown to be misusing the corporate form to evade legal obligations, the remedy is exceptional and must be supported by concrete evidence of impropriety, fraud, or abuse of corporate personality. In the absence of such evidence at this stage, and given that the directors have not yet been examined, it would be premature to pierce the corporate veil.
13. Consequently, prayer (6) shall be held in abeyance pending the outcome of the oral examination of the respondent’s directors, as anticipated under Order 22 Rule 35 of the Civil Procedure Rules.
Disposition
14. Accordingly, I allow the application dated 14th January 2025 on the following terms:
i. A prohibitory order is hereby issued restraining the judgment debtor from transferring, charging, or in any way disposing of the property known as L.R No. 2/406 (Original No. 2/69/2) until further orders of the Court.
ii. The Land Registrar is directed to register the prohibitory order issued in (1) above against the title of L.R No. 2/406 (Original No. 2/69/2).
iii. The said property, L.R No. 2/406 (Original No. 2/69/2), is hereby attached for the purpose of satisfying the decree issued on 11th July 2023.
iv. The following directors of the judgment debtor; JAMES AGGREY OJWANG, WALLACE KIMANI NGINA, JASPER ODHIAMBO LUBETO, HENRY MBURU WAWERU, and BRIAN OKOTH KADIRI shall attend court for oral examination on whether the judgment debtor has assets or means to satisfy the decree.
v. The said directors shall produce before the Court, for examination by the decree holder, the judgment debtor’s books of account, a valuation report of L.R No. 2/406 (Original No. 2/69/2) and any other documentary evidence pertaining to the operations of the judgment debtor from the date of its incorporation to date.
vi. Prayer (6), seeking to pierce the corporate veil and hold the directors personally liable, is deferred pending the outcome of the examination directed above.
vii. The costs of this application shall be borne by the judgment debtor.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE
1. For determination is the Notice of Motion application dated 14th January 2025, brought under Sections 68 and 69 of the Land Registration Act, Sections 1A, 1B, and 3A of the Civil Procedure Act, and Order 22 Rules 9, 35, 48 and 55, as well as Order 51 of the Civil Procedure Rules. The application is supported by the affidavit of CAROLYNE MUTHUE and is premised on the grounds set out on its face.
2. In the application, the decree holder seeks, among other orders, a prohibition against the respondent from transferring or charging the property known as L.R. No. 2/406 (Orig. No. 2/69/2), (the suit property), and for the said prohibition to be registered against the property’s title. The applicant further seeks the attachment and sale of the suit property to satisfy the decree dated 11th July 2023.
3. Additionally, the applicant prays that the respondent’s directors namely; James Aggrey Ojwang, Wallace Kimani Ngina, Jasper Odhiambo Lubeto, Henry Mburu Waweru, and Brian Okoth be summoned to court for oral examination on the respondent’s means of satisfying the decree, and that they be compelled to produce books of accounts, a valuation report of the property, and other relevant documentation from incorporation to date.
4. In default of compliance with these orders, the applicant seeks that the corporate veil be lifted and the directors held personally liable for the decretal sum.
5. Despite service of the application upon the respondent, there is no record of any response or written submissions having been filed. As at the time of preparing this ruling, the respondent had not complied with the directions issued by the Court. Accordingly, the application proceeds as unopposed. However, the Court remains duty-bound to assess the application on its own merit and to satisfy itself that the reliefs sought are justified in law and on the facts presented.
Analysis and Determination
6. I have considered the application, supporting affidavit and the submissions filed by the applicant. The applicant has demonstrated that judgment was entered by this Court in its favour, pursuant to the final arbitral award dated 15th December 2021. A decree was subsequently issued on 11th July 2023. The applicant avers that the decree remains unsatisfied, an assertion which remains unchallenged.
7. To support the application for enforcement, the applicant has produced a conveyance dated 3rd December 2012, which is evidence that the respondent is the registered proprietor of the suit property, having purchased it from Kamere Estates Limited. The ownership of the said property has not been disputed.
8. In further support, the applicant has annexed a CR12 extract dated 8th January 2025, confirming that the current directors of the respondent are JAMES AGGREY OJWANG, WALLACE KIMANI NGINA, HENRY MBURU WAWERU, and BRIAN OKOTH KADIRI.
9. On the basis of the uncontroverted evidence presented by the applicant, I am satisfied that a proper factual and legal foundation has been laid for the grant of the substantive reliefs sought in the application. The applicant has demonstrated that the respondent is yet to satisfy the decree issued on 11th July 2023, and there is a credible apprehension that the subject property may be disposed of or encumbered to frustrate execution.
10. In this regard, the prayers seeking prohibitory orders under Sections 68 and 69 of the Land Registration Act are well-founded, as they serve to preserve the suit property pending conclusion of execution proceedings. These provisions empower the Court to issue a restriction or inhibition against any dealings with registered land where such dealings may prejudice the interests of a party.
11. Further, the procedure invoked by the applicant under Order 22 of the Civil Procedure Rules provides for post-judgment discovery measures designed to aid in the effective enforcement of decrees. These include oral examination of judgment debtors or their officers, production of financial records, and identification of attachable assets. The application of these measures is particularly appropriate in circumstances where the judgment debtor is a corporate entity and its means are not readily ascertainable.
12. The applicant seeks the lifting of the corporate veil under prayer (6). While the Court recognizes that such an order may ultimately be necessary where the directors are shown to be misusing the corporate form to evade legal obligations, the remedy is exceptional and must be supported by concrete evidence of impropriety, fraud, or abuse of corporate personality. In the absence of such evidence at this stage, and given that the directors have not yet been examined, it would be premature to pierce the corporate veil.
13. Consequently, prayer (6) shall be held in abeyance pending the outcome of the oral examination of the respondent’s directors, as anticipated under Order 22 Rule 35 of the Civil Procedure Rules.
Disposition
14. Accordingly, I allow the application dated 14th January 2025 on the following terms:
i. A prohibitory order is hereby issued restraining the judgment debtor from transferring, charging, or in any way disposing of the property known as L.R No. 2/406 (Original No. 2/69/2) until further orders of the Court.
ii. The Land Registrar is directed to register the prohibitory order issued in (1) above against the title of L.R No. 2/406 (Original No. 2/69/2).
iii. The said property, L.R No. 2/406 (Original No. 2/69/2), is hereby attached for the purpose of satisfying the decree issued on 11th July 2023.
iv. The following directors of the judgment debtor; JAMES AGGREY OJWANG, WALLACE KIMANI NGINA, JASPER ODHIAMBO LUBETO, HENRY MBURU WAWERU, and BRIAN OKOTH KADIRI shall attend court for oral examination on whether the judgment debtor has assets or means to satisfy the decree.
v. The said directors shall produce before the Court, for examination by the decree holder, the judgment debtor’s books of account, a valuation report of L.R No. 2/406 (Original No. 2/69/2) and any other documentary evidence pertaining to the operations of the judgment debtor from the date of its incorporation to date.
vi. Prayer (6), seeking to pierce the corporate veil and hold the directors personally liable, is deferred pending the outcome of the examination directed above.
vii. The costs of this application shall be borne by the judgment debtor.
It is so ordered.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 18TH DAY OF JULY 2025.
F. MUGAMBI
JUDGE