https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12668

Jilao Company Ltd v Fahari Trading Ltd & another (Civil Case 160 of 2015) [2026] KEHC 12668 (KLR) (6 August 2026) (Ruling) Neutral citation: [2026] KEHC 12668 (KLR) Republic of Kenya In the High Court at Mombasa Civil Case 160 of 2015 J Ngaah, J August 6, 2026 Between Jilao Company Limited Plaintiff and Fahari Trading Limited 1st Defendant Maersk Line (K) Ltd 2nd Defendant Ruling 1.This ruling determines the application of the 1st defendant/decree holder dated 1st September 2025. By it the decree holder seeks, in the main, the oral examination of the officers of the judgment debtor company as to its means, the production of the company’s books and records, preservative orders over a motor vehicle, and certain ancillary reliefs. The application is brought in exercise of the court’s execution jurisdiction, in substance under Order 22 rule 35 of the Civil Procedure Rules, and is supported by the affidavit of Jawaid Ali, a director of the decree holder. 2.The decree in aid of which the application is brought is that of 15th February 2024. Upon the dismissal of the plaintiff’s suit and the success of the 1st defendant’s counterclaim, the plaintiff, Jilao Company Limited, became the judgment debtor and the 1st defendant, Fahari Trading Limited, the decree holder. The sum due under the decree, with costs and interest, is reflected in the warrants of attachment as USD 268,269.30. Warrants of attachment issued to Regent Auctioneers on 28th April 2025, but, on the decree holder’s account, execution has borne no fruit. The reliefs sought 3.Shorn of the procedural prayers for vacation leave, urgency and dispensation with service (prayers 1 and 2), the substantive reliefs sought are these. First, that summons issue to Abdullahi Ahmed Haji and Hosea Kili, respectively the director and the secretary of the judgment debtor, and to any other officer of the judgment debtor, to attend court and be orally examined as to the business, affairs, property and means of the judgment debtor and its ability to satisfy the decretal sum. Secondly, that the said officers produce the books of accounts, audited financial statements, annual returns, bank statements and cheque books relating to the operations of the judgment debtor for the last five years, together with their personal bank statements, and be examined upon those documents. Thirdly, that in default of attendance the said officers be deemed personally liable to settle the decretal sum, that warrants of attachment issue against them, or that they be committed to civil jail for a period of not less than six months (prayer 5). Fourthly, that preservative orders issue permitting Regent Auctioneers to hold in safe custody motor vehicle registration number KBH 414R, said to belong to the director, pending the determination of the application. Costs are sought in prayer 8. The grounds and the supporting affidavit 4.The application is founded on the following grounds, deposed to by Jawaid Ali. The decree of 15th February 2024, a copy of which is exhibited on his affidavit, remains unsatisfied. Attempts to execute it have been futile, no attachable assets having been found in the name of the judgment debtor, whose last known place of business has closed down. The officers of the judgment debtor, as shown by the company registration record (CR-12) are Abdullahi Ahmed Haji (identified as director and shareholder) and Hosea Kili (secretary). The decree holder deposes that the officers have conducted the company’s affairs fraudulently in order to defeat its creditors, and are hiding behind the corporate veil; that warrants of attachment issued to Regent Auctioneers; and that the auctioneers discovered a motor vehicle, registration number KBH 414R, registered in the name of the director, which the director is said to intend to sell. It is on this basis that the examination of the officers, the production of the company’s records, and preservative orders over the vehicle are sought. Response and submissions 5.No replying affidavit was filed, and the application was therefore unopposed on the evidence. It was heard on 28th October 2025. Mr. Opulu, for the decree holder, relied on the supporting affidavit and submitted, in brief, that there is a judgment against the judgment debtor which remains unsatisfied, and that, no property having been found in the company’s name, the examination is necessary to ascertain the company’s means. For the judgment debtor, Mr. Birir contended, in his brief oral submissions, that the director, Abdullahi Ahmed Haji, had relocated to Somalia; to which Mr. Opulu replied that there was nothing on the record to support that assertion. Issues for determination 6.Two questions arise. The first is whether the decree holder has made out a case for the oral examination of the officers of the judgment debtor and for the production of the company’s books and records. The second is whether the further reliefs sought, the production of the officers’ personal bank statements, the default orders in prayer 5, and the preservative orders over the motor vehicle, can properly be granted. The law 7.The examination of a judgment debtor as to its means is governed by Order 22 rule 35 of the Civil Procedure Rules, which provides: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; or (c) any other person, be orally examined as to whether any and, if so, what debts are owing to the judgment-debtor and whether the judgment-debtor has any and, if so, what other property or means of satisfying the decree; and the court may make an order for the attendance and examination of such person, and for the production of any books or documents. 8.The rule is an aid to execution. Its purpose is to enable a decree holder whose money decree remains unsatisfied to ascertain whether the judgment debtor has, and if so what, property or means of satisfying the decree. Where the judgment debtor is a corporation, it acts and speaks only through its officers, and the rule accordingly permits the examination of any officer of the corporation and the production of the company’s books and documents. The grant of such an order is discretionary; but where the decree remains unsatisfied and the application is made in good faith, the order will ordinarily issue (see Dormans Coffee Limited v Njenga & 3 others [2024] eKLR). Whether the examination should be ordered 9.On the first question I am in no doubt. The decree of 15th February 2024 remains unsatisfied; the company registration record establishes that the judgment debtor is a company whose officers are the two named persons; the decree holder deposes, without contradiction, that execution has been frustrated because no assets have been found in the company’s name; and the application is unopposed on the evidence. This is precisely the situation for which Order 22 rule 35 provides. The decree holder is entitled to have the officers of the judgment debtor examined as to the company’s means, and to have the company’s books and records produced for that purpose. 10.The only matter urged against the order was Mr. Birir’s submission that the director has relocated to Somalia. That submission is unsupported by any affidavit; but even if it were made good, it would not defeat the decree holder’s entitlement to an examination order. At most it would bear on the enforcement of attendance, which is a distinct matter; and in any event the secretary, Hosea Kili, and any other officer of the company remain amenable to examination. The order for examination will therefore issue. The further reliefs 11.The remaining reliefs stand on a different footing, for each of them travels well beyond what an examination as to means permits. 12.As to the production of the officers’ personal bank statements, the examination authorised by Order 22 rule 35 is an examination as to the means of the judgment debtor, and the production it authorises is of the judgment debtor’s books and documents. The judgment debtor is the company, not its officers. The personal financial records of the officers are not the proper subject of a rule 35 examination of the company; to reach them would require a determination, on evidence, that the corporate veil ought to be lifted. No such determination has been made. Production will therefore be confined to the records of the company, and the prayer for the officers’ personal bank statements is declined. 13.The orders sought in prayer 5, that the officers be deemed personally liable for the decretal sum, that warrants of attachment issue against them, or that they be committed to civil jail, cannot be granted on this application. An examination as to means does not fix the officers of a company with personal liability for the company’s decree; such liability, if it exists, can only be established by piercing the corporate veil, which is a substantive determination to be made on evidence in properly constituted proceedings, and not as an automatic consequence of a failure to attend an examination. The officers are not the judgment debtor, and no warrant of attachment or order of committal in execution of the decree can issue against them personally on this application. Committal to civil jail is, in any event, a drastic measure hedged about with stringent statutory and constitutional safeguards, and it cannot be ordered in advance and in terrorem as a sanction for a possible default. Should any officer duly summoned fail to attend, the decree holder is at liberty to apply for his attendance to be compelled in accordance with the law. Prayer 5 is refused. 14.Finally, the preservative orders sought over motor vehicle registration number KBH 414R cannot issue. That vehicle is the very subject of the objection proceedings in this cause. As I have found in my ruling on the objection to its attachment, the vehicle is the personal property of the director, Abdullahi Ahmed Haji, and not the property of the judgment debtor company, and it is not liable to attachment in execution of the decree against the company; the attachment over it has been lifted. It must follow that no order preserving the vehicle in aid of execution against the company can be made. The decree holder’s allegations of fraud and its invitation to lift the corporate veil are serious, but they are untested and cannot be determined on this application; if the decree holder maintains that the veil ought to be pierced so as to reach the director’s personal assets, its remedy lies in a properly constituted application or suit for that relief, on evidence. The examination now ordered may itself assist the decree holder in gathering the material relevant to any such claim. Prayer 7 is refused. 15.Prayers 1 and 2, which sought leave to be heard during the vacation, a certificate of urgency and dispensation with service, have been overtaken by events, the application having been heard on notice and inter partes. No order is necessary upon them. Disposition 16.In the result, the application dated 1st September 2025 is allowed in part, and I make the following orders:(a)Abdullahi Ahmed Haji and Hosea Kili, being respectively the director and the secretary of the judgment debtor, Jilao Company Limited, and any other officer of the judgment debtor, shall attend before this court on a date to be fixed and be orally examined as to the debts owing to the judgment debtor and as to the property and means of the judgment debtor available to satisfy the decree herein;(b)the said officers shall produce at the examination the books of accounts, audited financial statements, annual returns, bank statements and cheque books of the judgment debtor company for the last five years;(c)the prayer for the production of the officers’ personal bank statements is declined;(d)the prayers, in default of attendance, for orders deeming the officers personally liable, for warrants of attachment against them, and for their committal to civil jail are declined;(e)the prayer for preservative orders over motor vehicle registration number KBH 414R is declined;(f)the costs of the application shall be borne by the judgment debtor. 17.It is so ordered. SIGNED, DATED AND PUBLISHED ON THE CTS ON 6 AUGUST 2026NGAAH JAIRUSJUDGE