A. INTRODUCTION
1. This Ruling determines the Notice of Motion dated 10th February 2026, taken out by the Applicant, Ochoki & Ochoki Associates Advocates, a firm of advocates and the decree holder herein, against the Respondent, Armo Aquarius Limited t/a Lily Palm Limited, the judgment debtor. The application is the latest step in a protracted, and thus far largely fruitless, effort by the Applicant to recover an advocate-client bill of costs taxed in its favour against its own former client, the Respondent, for whom it acted in ELRC Cause No. E009 of 2021, Kenya Hotel and Allied Workers Union v Armo Aquarius Limited t/a Lily Palm Resort.
2. By the application now before me, the Applicant seeks, in substance, to have the Respondent’s directors summoned for examination on oath as to the Respondent’s assets and means, to compel the production of the Respondent’s financial records, and, going further, to have those directors declared personally liable for the Respondent’s judgment debt and subjected to execution in their personal capacities. The application has proceeded wholly unopposed, the Respondent having, at every turn, declined to engage with it. I return to the significance of that default in due course.
B. BACKGROUND
3. The Applicant acted for the Respondent in ELRC Cause No. E009 of 2021, in which the Respondent, then the respondent to a claim by Kenya Hotel and Allied Workers Union, successfully resisted the suit, which was dismissed on 29th February 2024 with no order as to costs. Following the conclusion of that matter, the Applicant, as against its own client, filed an Advocate-Client Bill of Costs dated 5th November 2024. The Respondent, through the firm of Hussein & Omar Advocates LLP, which had by then entered a Notice of Appointment dated 29th November 2024, filed Grounds of Opposition dated 15th November 2024, contending that the Bill offended section 45 of the Advocates Act by reason of an alleged remuneration agreement between the parties, and that legal fees had in any event been settled. No agreement, and no proof of settlement, was ever produced.
4. The Bill of Costs was taxed in a Ruling delivered on 11th February 2025, in the sum of Kshs. 455,514.60/=. The Applicant demanded payment of the taxed sum by a letter dated 11th February 2025, to which there was no response. That default prompted the Applicant to file a Notice of Motion dated 24th February 2025 seeking orders converting the taxing officer’s Ruling into a judgment and decree of this Court. That application, too, proceeded unopposed, and a Decree was issued on 7th July 2025 adopting the Ruling of 11th February 2025 as the Decree of the Court, with interest at court rates. A Certificate of Taxation confirming the taxed sum of Kshs. 455,514.60/= was subsequently issued on 4th February 2026.
5. Armed with the Decree and Certificate of Taxation, the Applicant sought to enforce payment. A further demand letter was served on the Respondent’s advocates on 5th February 2026, again without response. The Applicant’s uncontroverted evidence, contained in the supporting affidavit of Jimmy Sausi sworn on 10th February 2026, is that its efforts to locate the Respondent’s registered office proved difficult; that Mr. Maurizio Ciorra, who runs the Respondent’s affairs locally, declined to accept service of the Decree and Certificate of Taxation, asserting that he is no longer a director of the Respondent; and that a search at the Companies Registry (CR12), obtained by the Applicant, confirms the contrary — that Mr. Maurizio Ciorra continues to be a director and shareholder of the Respondent, together with Mr. Bernard Inumi Khabiri and Agrisara S.A., a company incorporated in Liechtenstein holding 998 of the Respondent’s 1,000 issued shares. The Applicant further avers that the Respondent has, since the institution of these proceedings, relocated its offices from the address recorded on its own company search — Museum Hill/Muthithi Road, Nairobi, Plot No. 209/70/2 — to premises at Watamu operated by Lily Palm Limited, an entity through which, on the Applicant’s account, Mr. Maurizio Ciorra and Mr. Bernard Inumi Khabiri continue to conduct business, and that the Respondent, as a corporate entity, appears on the face of the record to possess no tangible assets of its own against which the decree may be executed.
C. THE APPLICATION DATED 10TH FEBRUARY 2026
6. It is against that background that the Applicant took out the Notice of Motion dated 10th February 2026, brought under Order 22 Rule 35 and Order 5 Rule 17 of the Civil Procedure Rules, 2010 and sections 1A, 1B, 3A, 34(1), 38 and 63(e) of the Civil Procedure Act, seeking the following orders:
“1. THAT this application be certified urgent and directions be given thereto.
2. THAT the directors of the Respondent/ Judgment Debtor namely: Maurizio Ciorra, Bernard Inumi Khabiri, Agrisara S.A. to personally appear before Court for cross-examination on the assets and liability of the Respondent’s Company and/or whether the said directors should be held personally liable for payment of the taxed amount of Kenya Shillings Four Hundred Fifty-five Thousand Five Hundred and Fourteen and Sixty Cents (Kshs.455,514.60/=) together with interest from the date of Ruling of the Deputy Registrar delivered on the 11th February 2025.
3. THAT the directors and one particularly Mr Maurizio Ciorra, who has been running the Respondent, be compelled to produce all books of accounts, bank statements, annual returns, Tax payment records, cheques, audited accounts and any other information relating to the past and present status of the record from Mid – 2021.
4. THAT the said directors, and more particularly Maurizio Ciorra and Bernard Inumi Khabiri, are the Judgment Debtor who were and are the directors of the Respondent as at the time of filing the Defence be personally liable for the amount due to the Applicant under the Decree and Certificate of Taxation issued on the 4th February, 2026 against the Respondent.
5. THAT the Applicant be at liberty to execute the Judgment and Decree delivered by this Honourable Court on the 7th July 2025 and Certificate of Taxation issued on the 4th February 2026 against Maurizio Ciorra and Bernard Inumi Khabiri jointly and severally.
6. THAT the costs of the application be borne by the directors.”
7. The application is supported by the affidavit of Jimmy Sausi, advocate, sworn on 10th February 2026, which sets out the matters summarised in Part B above, and rests principally on the contention that the Respondent, being a corporate entity with no discernible tangible assets, is being used by its directors as a vehicle to evade a lawful decree of this Court, such that the ends of justice require the lifting of the corporate veil.
D. PROCEDURAL HISTORY SINCE FILING
8. When the application was placed before this Court on 18th May 2026, the Respondent was granted leave of fourteen (14) days to file a response to the application. The Court further directed that the application be canvassed by way of written submissions: the Applicant was given fifteen (15) days of service of the Respondent’s response within which to file and serve its submissions, and the Respondent was, in turn, given fifteen (15) days of service of the Applicant’s submissions within which to file responding submissions.
9. The fourteen days granted to the Respondent lapsed on or about 1st June 2026 without any response, of whatever description, being filed. In the face of that default, the Applicant, on 5th June 2026, filed and served its written submissions in compliance with the spirit of the directions of 18th May 2026. The Respondent has, to date, filed neither a response to the application nor submissions of any kind, notwithstanding the further fifteen days allowed to it to do so upon service of the Applicant’s submissions, and notwithstanding the considerably longer period that has since elapsed. The Respondent has, in short, elected not to participate in these proceedings at all.
E. THE APPLICANT’S SUBMISSIONS
10. In its written submissions, the Applicant recounts the history set out in Part B above, and emphasises that despite diligent efforts, including engaging agents based at Watamu and Malindi, it has been unable to locate any office of the Respondent transacting business in its own right; that the only lead available to it is that the Respondent and its directors operate from within premises owned by Lily Palm Limited, under the umbrella of an entity known as Kalu Group Limited, in which Mr. Maurizio Ciorra is said to be the majority shareholder, while Mr. Bernard Inumi Khabiri is said to operate within Papa Remo Beach Hotel, also at Watamu. It is on this footing — that the Respondent, as a corporate judgment debtor, appears to have no tangible assets of its own — that the Applicant says it was prompted to seek the orders now before me, including an order lifting the corporate veil. The Applicant, noting that the application stands wholly unopposed, urges the Court to allow it in terms of prayers 2, 3, 4, 5 and 6.
F. ISSUES FOR DETERMINATION
11. Having considered the application, the supporting affidavit, the exhibits annexed thereto and the Applicant’s written submissions, I find that the following issues arise for determination:
(a) What is the effect, on this application, of the Respondent’s failure to file any response or submissions despite due opportunity to do so;
(b) Whether prayers 2 and 3 of the application ought to be granted;
(c) Whether prayers 4 and 5 of the application ought to be granted at this stage; and
(d) What order should be made as to the costs of the application, and as to the further conduct of these proceedings.
G. ANALYSIS AND DETERMINATION
The Effect of the Respondent’s Default
12. It is necessary to say a word, first, on the consequence of the Respondent’s total default in participating in this application. An application that is unopposed is not, for that reason alone, to be granted as a matter of course; the Court retains an independent duty to satisfy itself that the orders sought are, in law and on the material presented, properly grantable. That said, non-opposition is not without real legal consequence. Where a party who has been duly served, and afforded every opportunity contemplated by the rules and by the Court’s own directions, to controvert the facts deposed to against it elects not to do so, the factual averments in the supporting affidavit, not being inherently improbable or contradicted by the record, fall to be treated as uncontroverted and stand established for the purposes of this application. I approach the application on that footing: the narrative set out in Part B above — the taxation, the Decree, the Certificate of Taxation, the futile demands, the Respondent’s apparent want of tangible assets, the directors’ evasive conduct as to service and as to the fact of their own directorship, and the relocation of the Respondent’s operations to premises associated with related entities — is, in the absence of any answer from the Respondent, taken as established on the record before me.
Prayers 2 and 3: Examination of the Directors and Production of Financial Records
13. Prayers 2 and 3 seek, respectively, the personal appearance of the Respondent’s directors — Mr. Maurizio Ciorra, Mr. Bernard Inumi Khabiri and Agrisara S.A. — for examination on oath as to the Respondent’s assets and liabilities, and an order compelling the production of the Respondent’s books of account, bank statements, annual returns, tax records, cheques and audited accounts from mid-2021 to date.
14. It is appropriate, given the nature of the relief sought, to pause and explain the purpose that applications of this kind serve, for it is that purpose which informs the manner in which I resolve prayers 2 and 3 on the one hand, and prayers 4 and 5 on the other. A decree that cannot be enforced is, to the party in whose favour it was entered, little more than a declaration on paper. The courts have, for that reason, long recognised that their jurisdiction over execution must be exercised so as to ensure, so far as the law permits, that a decree is not rendered nugatory by a judgment debtor’s concealment of its means, evasion of process, or manipulation of its corporate affairs. This concern is especially acute where, as here, the judgment debtor is a corporate entity: separate legal personality, while a foundational and salutary principle of company law, can also present real practical difficulties to an unsatisfied decree holder, particularly where the natural persons who direct and benefit from the company’s affairs operate through a web of related entities that obscures where the company’s own assets, if any, actually lie. Order 22 Rule 35 of the Civil Procedure Rules, 2010 exists precisely to address that difficulty. It empowers the Court, on the application of a decree holder, to summon the judgment debtor, or, in the case of a corporation, an officer thereof, for oral examination as to what debts are owed to the judgment debtor, and whether the judgment debtor has any and what property or means of satisfying the decree. The provision is, in substance and effect, a mechanism of discovery in aid of execution: it does not itself determine substantive liability, but it equips the decree holder, and the Court, with the information necessary to know whether, and against what, execution may properly proceed.
15. It follows, and this Court so holds, that the threshold for an order of this kind is not a demanding one. An applicant is not required to first identify, with precision, specific assets belonging to the judgment debtor before an examination order can issue — to impose such a requirement would defeat the very discovery purpose the provision is designed to serve, since it is frequently the examination itself that will reveal what assets exist and where. It is sufficient that the applicant demonstrates that the person or persons to be summoned are, by virtue of their position, likely to be in possession of information as to the judgment debtor’s debts, property or means. This was the approach taken by the High Court in Ramaben Ramnikal Patani & 2 others v Garden Chambers Limited [2019] eKLR, where, in an application of a materially similar character, the Court held that the proper inquiry under Order 22 Rule 35 is whether the respondent sought to be examined is in a position to provide information in the nature of discovery concerning the judgment debtor’s debts and assets, and, being so satisfied, ordered the examination of the company’s managing director to proceed.
16. Applying that standard here, I have no difficulty in finding that prayers 2 and 3 are properly grantable. The uncontested evidence before me establishes that Mr. Maurizio Ciorra and Mr. Bernard Inumi Khabiri are directors and shareholders of the Respondent, with Agrisara S.A. holding the substantial majority of its shares; that Mr. Maurizio Ciorra, in particular, is the individual who has in fact been running the Respondent’s affairs; that the Respondent has, on the face of the record, no tangible assets of its own; and that its directors have, rather than engaging with the process of this Court, declined even to accept service, disputed their own documented status as directors, and relocated the Respondent’s operations to premises associated with related entities. Each of these three persons is, on this record, plainly in a position to provide the information in the nature of discovery that Order 22 Rule 35 contemplates, and the production of the Respondent’s primary financial records — its books of account, bank statements, annual returns, tax records and audited accounts — is a necessary and proportionate adjunct to that examination, without which the exercise would be reduced to an unverifiable oral account. Prayers 2 and 3 of the application are, accordingly, granted.
Prayers 4 and 5: Personal Liability of the Directors and Leave to Execute Against Them
17. Prayers 4 and 5 are of an altogether different character. They do not seek discovery; they seek final and conclusive relief — a declaration that Mr. Maurizio Ciorra and Mr. Bernard Inumi Khabiri are personally the judgment debtor, and leave to execute the Decree of this Court against them, jointly and severally, in their personal capacities. That is relief of real gravity. It asks this Court, in substance, to disregard the separate legal personality of the Respondent — the very foundation upon which the Respondent was sued, judgment entered, and a Decree issued against it as a distinct legal person — and to visit its corporate liability upon named individuals in their private capacities, exposing their personal assets to execution.
18. The separate legal personality of a company from its shareholders and directors is one of the oldest and most firmly settled principles of company law. It is not lightly set aside, and Kenyan courts, in common with courts across the common law world, pierce the corporate veil only in narrow and well-recognised circumstances — typically where the company is shown to be a mere façade or sham employed to conceal the true facts, to perpetrate fraud, or to evade an existing legal obligation that would otherwise attach to the individual, or where it is used as a device or stratagem to circumvent a right or duty that the law would otherwise impose. The threshold is deliberately high, precisely because the consequence — depriving a shareholder or director of the protection that limited liability is designed to afford — is itself a grave one. It is for this reason that in Ramaben Ramnikal Patani & 2 others v Garden Chambers Limited (supra), the very same court that found an examination order properly grantable on the discovery standard described above nonetheless declined, on that same record, to lift the corporate veil and hold the company’s director personally liable, for want of evidence of fraud or other improper conduct meeting the recognised threshold.
19. I find myself in a materially similar position here, and for closely related reasons I consider it prudent, and indeed procedurally necessary, that prayers 4 and 5 should await the outcome of the examination and production of documents directed under prayers 2 and 3, rather than being determined now. First, on matters of substance: the Applicant’s case for piercing the veil rests, at present, on serious but as yet untested allegations — that the Respondent has no tangible assets, that its affairs are conducted through and commingled with related entities controlled by the same individuals, and that its offices were relocated to defeat execution. That the Respondent has not troubled to answer these allegations means they stand uncontroverted for present purposes, but uncontroverted suspicion is not the same thing as the affirmative proof of fraud, sham or evasion that the law requires before the corporate veil will be lifted. It is precisely the examination of the directors, and the production of the Respondent’s books of account, bank statements and audited accounts, that will furnish the evidentiary foundation — or, as the case may be, fail to furnish it — upon which a properly reasoned finding on personal liability can be made. To determine prayers 4 and 5 in advance of that exercise would be to reverse the very sequence that the discovery mechanism in Order 22 Rule 35 is designed to serve.
20. Second, and independently, there is a procedural dimension that reinforces the same conclusion. Prayers 2 and 3 themselves contemplate that Mr. Maurizio Ciorra, Mr. Bernard Inumi Khabiri and Agrisara S.A. will personally appear before this Court. Fair process demands that persons facing so consequential a prayer as a declaration of personal liability, and exposure of their private assets to execution, be heard before, and not only after, such a finding is made against them. The very appearance that prayers 2 and 3 will occasion affords the Respondent’s directors precisely that opportunity — an opportunity the Respondent has, to date, spurned by its default, but one which this Court, mindful of the gravity of the relief sought under prayers 4 and 5, is not prepared to short-circuit merely because the application is unopposed. Prayers 4 and 5 shall, accordingly, be held in abeyance, and shall be determined upon the conclusion of, and by reference to the outcome of, the examination and production of documents directed above.
Costs and Further Conduct of the Proceedings
21. As to costs, since the ultimate fate of prayers 4 and 5 — and with it, the question of against whom, and on what account, the costs of this application should properly fall — remains to be determined, I consider it appropriate that the costs of the application likewise abide the outcome of that process, rather than being fixed in a piecemeal fashion at this stage.
22. Finally, given the orders made above, it is necessary that a date be fixed for the appearance of Mr. Maurizio Ciorra, Mr. Bernard Inumi Khabiri and Agrisara S.A. before this Court, for purposes of the examination and production of documents directed in respect of prayers 2 and 3 of the application.
H. DISPOSITION
23. For the reasons set out above, I make the following orders:
(a) Prayer 1 of the Notice of Motion dated 10th February 2026 having already been actioned by the directions issued on 18th May 2026, no further order is necessary on it.
(b) Prayers 2 and 3 of the Notice of Motion dated 10th February 2026 are hereby granted.
(c) Maurizio Ciorra, Bernard Inumi Khabiri and Agrisara S.A. — being the persons named in the application — shall appear before this Court, on a date to be given, for examination on oath as to the assets, liabilities and means of the Respondent/Judgment Debtor, and shall, on or before that date, produce all books of account, bank statements, annual returns, tax payment records, cheques, audited accounts and any other information relating to the past and present financial status of the Respondent from mid-2021 to date.
(d) Prayers 4 and 5 of the Notice of Motion dated 10th February 2026 shall await, and shall be determined upon, the outcome of the examination and production of documents directed in (c) above.
(e) The costs of the application shall abide, and be determined together with, the outcome of prayers 4 and 5.
(f) This matter shall be mentioned before the Deputy Registrar within fourteen (14) days of this Ruling, for purposes of fixing a date for the appearance and examination directed above.
24. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 22nd DAY OF SEPTEMBER 2026.
1. This Ruling determines the Notice of Motion dated 10th February 2026, taken out by the Applicant, Ochoki & Ochoki Associates Advocates, a firm of advocates and the decree holder herein, against the Respondent, Armo Aquarius Limited t/a Lily Palm Limited, the judgment debtor. The application is the latest step in a protracted, and thus far largely fruitless, effort by the Applicant to recover an advocate-client bill of costs taxed in its favour against its own former client, the Respondent, for whom it acted in ELRC Cause No. E009 of 2021, Kenya Hotel and Allied Workers Union v Armo Aquarius Limited t/a Lily Palm Resort.
2. By the application now before me, the Applicant seeks, in substance, to have the Respondent’s directors summoned for examination on oath as to the Respondent’s assets and means, to compel the production of the Respondent’s financial records, and, going further, to have those directors declared personally liable for the Respondent’s judgment debt and subjected to execution in their personal capacities. The application has proceeded wholly unopposed, the Respondent having, at every turn, declined to engage with it. I return to the significance of that default in due course.
B. BACKGROUND
3. The Applicant acted for the Respondent in ELRC Cause No. E009 of 2021, in which the Respondent, then the respondent to a claim by Kenya Hotel and Allied Workers Union, successfully resisted the suit, which was dismissed on 29th February 2024 with no order as to costs. Following the conclusion of that matter, the Applicant, as against its own client, filed an Advocate-Client Bill of Costs dated 5th November 2024. The Respondent, through the firm of Hussein & Omar Advocates LLP, which had by then entered a Notice of Appointment dated 29th November 2024, filed Grounds of Opposition dated 15th November 2024, contending that the Bill offended section 45 of the Advocates Act by reason of an alleged remuneration agreement between the parties, and that legal fees had in any event been settled. No agreement, and no proof of settlement, was ever produced.
4. The Bill of Costs was taxed in a Ruling delivered on 11th February 2025, in the sum of Kshs. 455,514.60/=. The Applicant demanded payment of the taxed sum by a letter dated 11th February 2025, to which there was no response. That default prompted the Applicant to file a Notice of Motion dated 24th February 2025 seeking orders converting the taxing officer’s Ruling into a judgment and decree of this Court. That application, too, proceeded unopposed, and a Decree was issued on 7th July 2025 adopting the Ruling of 11th February 2025 as the Decree of the Court, with interest at court rates. A Certificate of Taxation confirming the taxed sum of Kshs. 455,514.60/= was subsequently issued on 4th February 2026.
5. Armed with the Decree and Certificate of Taxation, the Applicant sought to enforce payment. A further demand letter was served on the Respondent’s advocates on 5th February 2026, again without response. The Applicant’s uncontroverted evidence, contained in the supporting affidavit of Jimmy Sausi sworn on 10th February 2026, is that its efforts to locate the Respondent’s registered office proved difficult; that Mr. Maurizio Ciorra, who runs the Respondent’s affairs locally, declined to accept service of the Decree and Certificate of Taxation, asserting that he is no longer a director of the Respondent; and that a search at the Companies Registry (CR12), obtained by the Applicant, confirms the contrary — that Mr. Maurizio Ciorra continues to be a director and shareholder of the Respondent, together with Mr. Bernard Inumi Khabiri and Agrisara S.A., a company incorporated in Liechtenstein holding 998 of the Respondent’s 1,000 issued shares. The Applicant further avers that the Respondent has, since the institution of these proceedings, relocated its offices from the address recorded on its own company search — Museum Hill/Muthithi Road, Nairobi, Plot No. 209/70/2 — to premises at Watamu operated by Lily Palm Limited, an entity through which, on the Applicant’s account, Mr. Maurizio Ciorra and Mr. Bernard Inumi Khabiri continue to conduct business, and that the Respondent, as a corporate entity, appears on the face of the record to possess no tangible assets of its own against which the decree may be executed.
C. THE APPLICATION DATED 10TH FEBRUARY 2026
6. It is against that background that the Applicant took out the Notice of Motion dated 10th February 2026, brought under Order 22 Rule 35 and Order 5 Rule 17 of the Civil Procedure Rules, 2010 and sections 1A, 1B, 3A, 34(1), 38 and 63(e) of the Civil Procedure Act, seeking the following orders:
“1. THAT this application be certified urgent and directions be given thereto.
2. THAT the directors of the Respondent/ Judgment Debtor namely: Maurizio Ciorra, Bernard Inumi Khabiri, Agrisara S.A. to personally appear before Court for cross-examination on the assets and liability of the Respondent’s Company and/or whether the said directors should be held personally liable for payment of the taxed amount of Kenya Shillings Four Hundred Fifty-five Thousand Five Hundred and Fourteen and Sixty Cents (Kshs.455,514.60/=) together with interest from the date of Ruling of the Deputy Registrar delivered on the 11th February 2025.
3. THAT the directors and one particularly Mr Maurizio Ciorra, who has been running the Respondent, be compelled to produce all books of accounts, bank statements, annual returns, Tax payment records, cheques, audited accounts and any other information relating to the past and present status of the record from Mid – 2021.
4. THAT the said directors, and more particularly Maurizio Ciorra and Bernard Inumi Khabiri, are the Judgment Debtor who were and are the directors of the Respondent as at the time of filing the Defence be personally liable for the amount due to the Applicant under the Decree and Certificate of Taxation issued on the 4th February, 2026 against the Respondent.
5. THAT the Applicant be at liberty to execute the Judgment and Decree delivered by this Honourable Court on the 7th July 2025 and Certificate of Taxation issued on the 4th February 2026 against Maurizio Ciorra and Bernard Inumi Khabiri jointly and severally.
6. THAT the costs of the application be borne by the directors.”
7. The application is supported by the affidavit of Jimmy Sausi, advocate, sworn on 10th February 2026, which sets out the matters summarised in Part B above, and rests principally on the contention that the Respondent, being a corporate entity with no discernible tangible assets, is being used by its directors as a vehicle to evade a lawful decree of this Court, such that the ends of justice require the lifting of the corporate veil.
D. PROCEDURAL HISTORY SINCE FILING
8. When the application was placed before this Court on 18th May 2026, the Respondent was granted leave of fourteen (14) days to file a response to the application. The Court further directed that the application be canvassed by way of written submissions: the Applicant was given fifteen (15) days of service of the Respondent’s response within which to file and serve its submissions, and the Respondent was, in turn, given fifteen (15) days of service of the Applicant’s submissions within which to file responding submissions.
9. The fourteen days granted to the Respondent lapsed on or about 1st June 2026 without any response, of whatever description, being filed. In the face of that default, the Applicant, on 5th June 2026, filed and served its written submissions in compliance with the spirit of the directions of 18th May 2026. The Respondent has, to date, filed neither a response to the application nor submissions of any kind, notwithstanding the further fifteen days allowed to it to do so upon service of the Applicant’s submissions, and notwithstanding the considerably longer period that has since elapsed. The Respondent has, in short, elected not to participate in these proceedings at all.
E. THE APPLICANT’S SUBMISSIONS
10. In its written submissions, the Applicant recounts the history set out in Part B above, and emphasises that despite diligent efforts, including engaging agents based at Watamu and Malindi, it has been unable to locate any office of the Respondent transacting business in its own right; that the only lead available to it is that the Respondent and its directors operate from within premises owned by Lily Palm Limited, under the umbrella of an entity known as Kalu Group Limited, in which Mr. Maurizio Ciorra is said to be the majority shareholder, while Mr. Bernard Inumi Khabiri is said to operate within Papa Remo Beach Hotel, also at Watamu. It is on this footing — that the Respondent, as a corporate judgment debtor, appears to have no tangible assets of its own — that the Applicant says it was prompted to seek the orders now before me, including an order lifting the corporate veil. The Applicant, noting that the application stands wholly unopposed, urges the Court to allow it in terms of prayers 2, 3, 4, 5 and 6.
F. ISSUES FOR DETERMINATION
11. Having considered the application, the supporting affidavit, the exhibits annexed thereto and the Applicant’s written submissions, I find that the following issues arise for determination:
(a) What is the effect, on this application, of the Respondent’s failure to file any response or submissions despite due opportunity to do so;
(b) Whether prayers 2 and 3 of the application ought to be granted;
(c) Whether prayers 4 and 5 of the application ought to be granted at this stage; and
(d) What order should be made as to the costs of the application, and as to the further conduct of these proceedings.
G. ANALYSIS AND DETERMINATION
The Effect of the Respondent’s Default
12. It is necessary to say a word, first, on the consequence of the Respondent’s total default in participating in this application. An application that is unopposed is not, for that reason alone, to be granted as a matter of course; the Court retains an independent duty to satisfy itself that the orders sought are, in law and on the material presented, properly grantable. That said, non-opposition is not without real legal consequence. Where a party who has been duly served, and afforded every opportunity contemplated by the rules and by the Court’s own directions, to controvert the facts deposed to against it elects not to do so, the factual averments in the supporting affidavit, not being inherently improbable or contradicted by the record, fall to be treated as uncontroverted and stand established for the purposes of this application. I approach the application on that footing: the narrative set out in Part B above — the taxation, the Decree, the Certificate of Taxation, the futile demands, the Respondent’s apparent want of tangible assets, the directors’ evasive conduct as to service and as to the fact of their own directorship, and the relocation of the Respondent’s operations to premises associated with related entities — is, in the absence of any answer from the Respondent, taken as established on the record before me.
Prayers 2 and 3: Examination of the Directors and Production of Financial Records
13. Prayers 2 and 3 seek, respectively, the personal appearance of the Respondent’s directors — Mr. Maurizio Ciorra, Mr. Bernard Inumi Khabiri and Agrisara S.A. — for examination on oath as to the Respondent’s assets and liabilities, and an order compelling the production of the Respondent’s books of account, bank statements, annual returns, tax records, cheques and audited accounts from mid-2021 to date.
14. It is appropriate, given the nature of the relief sought, to pause and explain the purpose that applications of this kind serve, for it is that purpose which informs the manner in which I resolve prayers 2 and 3 on the one hand, and prayers 4 and 5 on the other. A decree that cannot be enforced is, to the party in whose favour it was entered, little more than a declaration on paper. The courts have, for that reason, long recognised that their jurisdiction over execution must be exercised so as to ensure, so far as the law permits, that a decree is not rendered nugatory by a judgment debtor’s concealment of its means, evasion of process, or manipulation of its corporate affairs. This concern is especially acute where, as here, the judgment debtor is a corporate entity: separate legal personality, while a foundational and salutary principle of company law, can also present real practical difficulties to an unsatisfied decree holder, particularly where the natural persons who direct and benefit from the company’s affairs operate through a web of related entities that obscures where the company’s own assets, if any, actually lie. Order 22 Rule 35 of the Civil Procedure Rules, 2010 exists precisely to address that difficulty. It empowers the Court, on the application of a decree holder, to summon the judgment debtor, or, in the case of a corporation, an officer thereof, for oral examination as to what debts are owed to the judgment debtor, and whether the judgment debtor has any and what property or means of satisfying the decree. The provision is, in substance and effect, a mechanism of discovery in aid of execution: it does not itself determine substantive liability, but it equips the decree holder, and the Court, with the information necessary to know whether, and against what, execution may properly proceed.
15. It follows, and this Court so holds, that the threshold for an order of this kind is not a demanding one. An applicant is not required to first identify, with precision, specific assets belonging to the judgment debtor before an examination order can issue — to impose such a requirement would defeat the very discovery purpose the provision is designed to serve, since it is frequently the examination itself that will reveal what assets exist and where. It is sufficient that the applicant demonstrates that the person or persons to be summoned are, by virtue of their position, likely to be in possession of information as to the judgment debtor’s debts, property or means. This was the approach taken by the High Court in Ramaben Ramnikal Patani & 2 others v Garden Chambers Limited [2019] eKLR, where, in an application of a materially similar character, the Court held that the proper inquiry under Order 22 Rule 35 is whether the respondent sought to be examined is in a position to provide information in the nature of discovery concerning the judgment debtor’s debts and assets, and, being so satisfied, ordered the examination of the company’s managing director to proceed.
16. Applying that standard here, I have no difficulty in finding that prayers 2 and 3 are properly grantable. The uncontested evidence before me establishes that Mr. Maurizio Ciorra and Mr. Bernard Inumi Khabiri are directors and shareholders of the Respondent, with Agrisara S.A. holding the substantial majority of its shares; that Mr. Maurizio Ciorra, in particular, is the individual who has in fact been running the Respondent’s affairs; that the Respondent has, on the face of the record, no tangible assets of its own; and that its directors have, rather than engaging with the process of this Court, declined even to accept service, disputed their own documented status as directors, and relocated the Respondent’s operations to premises associated with related entities. Each of these three persons is, on this record, plainly in a position to provide the information in the nature of discovery that Order 22 Rule 35 contemplates, and the production of the Respondent’s primary financial records — its books of account, bank statements, annual returns, tax records and audited accounts — is a necessary and proportionate adjunct to that examination, without which the exercise would be reduced to an unverifiable oral account. Prayers 2 and 3 of the application are, accordingly, granted.
Prayers 4 and 5: Personal Liability of the Directors and Leave to Execute Against Them
17. Prayers 4 and 5 are of an altogether different character. They do not seek discovery; they seek final and conclusive relief — a declaration that Mr. Maurizio Ciorra and Mr. Bernard Inumi Khabiri are personally the judgment debtor, and leave to execute the Decree of this Court against them, jointly and severally, in their personal capacities. That is relief of real gravity. It asks this Court, in substance, to disregard the separate legal personality of the Respondent — the very foundation upon which the Respondent was sued, judgment entered, and a Decree issued against it as a distinct legal person — and to visit its corporate liability upon named individuals in their private capacities, exposing their personal assets to execution.
18. The separate legal personality of a company from its shareholders and directors is one of the oldest and most firmly settled principles of company law. It is not lightly set aside, and Kenyan courts, in common with courts across the common law world, pierce the corporate veil only in narrow and well-recognised circumstances — typically where the company is shown to be a mere façade or sham employed to conceal the true facts, to perpetrate fraud, or to evade an existing legal obligation that would otherwise attach to the individual, or where it is used as a device or stratagem to circumvent a right or duty that the law would otherwise impose. The threshold is deliberately high, precisely because the consequence — depriving a shareholder or director of the protection that limited liability is designed to afford — is itself a grave one. It is for this reason that in Ramaben Ramnikal Patani & 2 others v Garden Chambers Limited (supra), the very same court that found an examination order properly grantable on the discovery standard described above nonetheless declined, on that same record, to lift the corporate veil and hold the company’s director personally liable, for want of evidence of fraud or other improper conduct meeting the recognised threshold.
19. I find myself in a materially similar position here, and for closely related reasons I consider it prudent, and indeed procedurally necessary, that prayers 4 and 5 should await the outcome of the examination and production of documents directed under prayers 2 and 3, rather than being determined now. First, on matters of substance: the Applicant’s case for piercing the veil rests, at present, on serious but as yet untested allegations — that the Respondent has no tangible assets, that its affairs are conducted through and commingled with related entities controlled by the same individuals, and that its offices were relocated to defeat execution. That the Respondent has not troubled to answer these allegations means they stand uncontroverted for present purposes, but uncontroverted suspicion is not the same thing as the affirmative proof of fraud, sham or evasion that the law requires before the corporate veil will be lifted. It is precisely the examination of the directors, and the production of the Respondent’s books of account, bank statements and audited accounts, that will furnish the evidentiary foundation — or, as the case may be, fail to furnish it — upon which a properly reasoned finding on personal liability can be made. To determine prayers 4 and 5 in advance of that exercise would be to reverse the very sequence that the discovery mechanism in Order 22 Rule 35 is designed to serve.
20. Second, and independently, there is a procedural dimension that reinforces the same conclusion. Prayers 2 and 3 themselves contemplate that Mr. Maurizio Ciorra, Mr. Bernard Inumi Khabiri and Agrisara S.A. will personally appear before this Court. Fair process demands that persons facing so consequential a prayer as a declaration of personal liability, and exposure of their private assets to execution, be heard before, and not only after, such a finding is made against them. The very appearance that prayers 2 and 3 will occasion affords the Respondent’s directors precisely that opportunity — an opportunity the Respondent has, to date, spurned by its default, but one which this Court, mindful of the gravity of the relief sought under prayers 4 and 5, is not prepared to short-circuit merely because the application is unopposed. Prayers 4 and 5 shall, accordingly, be held in abeyance, and shall be determined upon the conclusion of, and by reference to the outcome of, the examination and production of documents directed above.
Costs and Further Conduct of the Proceedings
21. As to costs, since the ultimate fate of prayers 4 and 5 — and with it, the question of against whom, and on what account, the costs of this application should properly fall — remains to be determined, I consider it appropriate that the costs of the application likewise abide the outcome of that process, rather than being fixed in a piecemeal fashion at this stage.
22. Finally, given the orders made above, it is necessary that a date be fixed for the appearance of Mr. Maurizio Ciorra, Mr. Bernard Inumi Khabiri and Agrisara S.A. before this Court, for purposes of the examination and production of documents directed in respect of prayers 2 and 3 of the application.
H. DISPOSITION
23. For the reasons set out above, I make the following orders:
(a) Prayer 1 of the Notice of Motion dated 10th February 2026 having already been actioned by the directions issued on 18th May 2026, no further order is necessary on it.
(b) Prayers 2 and 3 of the Notice of Motion dated 10th February 2026 are hereby granted.
(c) Maurizio Ciorra, Bernard Inumi Khabiri and Agrisara S.A. — being the persons named in the application — shall appear before this Court, on a date to be given, for examination on oath as to the assets, liabilities and means of the Respondent/Judgment Debtor, and shall, on or before that date, produce all books of account, bank statements, annual returns, tax payment records, cheques, audited accounts and any other information relating to the past and present financial status of the Respondent from mid-2021 to date.
(d) Prayers 4 and 5 of the Notice of Motion dated 10th February 2026 shall await, and shall be determined upon, the outcome of the examination and production of documents directed in (c) above.
(e) The costs of the application shall abide, and be determined together with, the outcome of prayers 4 and 5.
(f) This matter shall be mentioned before the Deputy Registrar within fourteen (14) days of this Ruling, for purposes of fixing a date for the appearance and examination directed above.
24. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 22nd DAY OF SEPTEMBER 2026.