[2019] KEHC 3830 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL& TAX DIVISION

CIVIL SUIT NO. 641 OF 2012

DATAGUARD DISTRIBUTORS LIMITED...PLAINTIFF/DECREE HOLDER

VERSUS

VIRGINIA NJERI KIGO.............................................................1ST DEFENDANT

VALZ DISTRIBUTORS...............................................................2ND DEFENDANT

VIDI FABRICATORS LIMITED................................................3RD DEFENDANT

NAIROBI TYRES MART COMPANY LIMITED....................4TH DEFENDANT

RULING

1. The Plaintiff’s notice of motion dated 7th December 2017 was heard and a determination thereon made on 30th April 2019. In the said decision, the court made it clear that, the only property that was the subject of the order sought to lift the prohibitory was property known as; Nairobi Block 76/516 Buruburu. The other properties mentioned at prayer (2) were excluded.

2. Upon grant of the order to lift the prohibitory order, the court ordered that each party do file an independent valuation of the suit property before an order for sale of the same is issued. The Plaintiff subsequently filed three reports. The Defendant did not

3. The property L.R. No. Nairobi Block 76/516 has been given a value Kshs. 11,000,000 at the market value. However, the decree amount is stated to be Kshs. 43,000,000. The Defendant/Respondents have been given an opportunity to be heard on the application and/or the valuation and apparently, there has been no response. In that case, I find that the orders sought to enable the sale of the property Nairobi Block 76/516 are warranted and I grant the same as prayed for, under prayer (1) and (2) of the notice of motion application dated 7th December 2017 as it relates to the Buruburu property.

4. However, the Applicant ensures that the sale is properly conducted as it is answerable to the legal proprietor of the property to conduct the sale in an honest and transparent manner. The Applicant must in that regard, ensure the sale is conducted in the presence of an officer of the court. In that regard, the Applicant shall laise with the Honourable Deputy Registrar for the appointment of the officer. The auction must be conducted in public with proper and adequate public notice/advertisements necessary to facilitate a “decent sale”. Any intentional act of fraud, dishonest and/or any act resulting in the loss to the Respondent shall be borne by the Applicant and/or jointly with the auctioneer.

5. Finally, the other two properties which the Applicant intends to sale evidently belong to Virginia Njeri Kigo. She is the 1st Defendant herein. The suit was filed against four Defendants, the other three are artificial entities being limited liability companies. As much as the 1st Defendant did not oppose the sale of these properties, the Applicants have not satisfied the court why they want to execute the judgment against the 1st Defendant alone. In the decree extracted and signed by the Honourable Deputy Registrar on 27th June 2017, it is clearly stated that Judgment is “entered for the Plaintiff against the 1st, 2nd, 3rd and 4th Defendants for the sum of Kshs. 43,000,000 together with interest and the costs of the suit.

6. The liability is not expressed to be jointly and severally as against and between the Defendants. Neither can a natural individual be liable for the company’s debt. I decline to grant prayer (2) of the subject application as it relates to the properties in Nyandarua and Syokimau Estate.

7. It is so ordered.

Dated, delivered and signed in an open court this 30th September 2019.

G.L. NZIOKA

JUDGE

In the presence of;

Mr. Gachie for the Plaintiff/Applicant

Ms. Kago for the Defendants

Dennis ---------------------------Court Assistant