[2018] KEHC 6830 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL AND TAX DIVISION

CIVIL SUIT NO. 846 OF 2001

KANN GREENS LIMITED.......1ST PLAINTIFF/RESPONDENT

DANPOULT LIMITED.............2ND PLAINTIFF/RESPONDENT

- VERSUS -

NATIONAL BANK OF

KENYA LIMITED........................1ST DEFENDANT/APPLICANT

GARAM INVESTMENTS...................................2ND DEFENDANT

(By original action)

NATIONAL BANK OF KENYA LIMITED.................PLAINTIFF

-VERSUS-

KANN GREENS LIMITED..................................1ST DEFENDANT

DANPOULT LIMITED........................................2ND DEFENDANT

DAVID NG’ANG’A KAMAU...............................3RD DEFENDANT

JOSEPHINE WAMBUI NG’ANG’A....................4TH DEFENDANT

RULING

1. In this suit, when it was filed on 7th June, 2001, KANN GREENS LIMITED (herein after referred to as Kann) was the 1st Plaintiff, DANPOULT LIMITED (herein after referred to as Danpoult) was the 2nd Plaintiff while NATIONAL BANK OF KENYA LIMITED (herein after referred to as NBK) was the 1st Defendant and GARAM INVESTMENTwas the 2nd Defendant. Subsequently the suit against the 2nd Defendant was withdrawn.

2. NBK filed its defence and counter-claim. In that defence and counter claim Kann became the 1st Defendant, Danpoult the 2nd Defendant, and Ng’anga kamau and Josephine Wambui Ng’ang’awere the 3rd and 4th defendants respectfully (who collectively shall be referred to as defendants in the counter-claim).

3. This court, by the Ruling delivered on 20th March, 2003, struck out the plaint filed by Kann and Danpoult and entered judgment as follows:

(a) Judgment in favour of NBK as against Danpoult for Ksh 1,569,605. 25 with interest at 29% per annum from 21st March 2003 until payment in full;

(b) Judgment in favour of NBK as against Kann, Danpoult, David Ng’ang’a Kamau and Josephine Wambui Ng’ang’a, jointly and severally for Ksh 7,505,902. 85 with interest at 26% per annum from 20th March 2003 until payment in full; Judgement for Ksh 9,584,806. 05 with interest at 28% per annum from 20th March, 2003 until payment in full; and Judgment for Ksh 41,437. 60. Kann and Danpoult were ordered to pay NBK costs of the original suit. Kann, Danpoult, David Ng’ang’a Kamau and Josephine Wambui Ng’ang’a were ordered to pay to NBK costs of the counter-claim.

4. NBK has moved this court by Notice of Motion dated 20th March, 2017 seeking prayers:

a. That NBK be granted leave to execute the decree against the Principal Directors of Kann and Danpoult;

b. That Mrs Josephine Wambui Ng’ang’a, David Ng’ang’a Kamau, kibaki Muriithi and Mrs Anne Nduta Kibaki, the Principal Directors of Kann and Danpoult be orally examined on oath as to the assets and liabilities of companies Kann and Danpoult and be ordered to produce the books of account of those companies.

c. That in default of such attendance by those Principal Directors, they be ordered to settle the decree herein.

5. The application was supported by the affidavit of Paul Chelang’a who is NBK’s debt recovery manager. By his affidavit the deponent deponed that Kann and Danpoulthave failed to make payment to satisfy the decretal amount. That those two companies are defunct, no longer trading and with no official premises. The deponent deponed that NBK desires to execute the decree against the Principal Directors of the two companies.

6. Although learned counsel for the defendants in the counter-claim was served with the application under consideration and the hearing notice for 3rd May 2018, when the application was heard by the court, no papers were filed in opposition to the application and there was no attendance in court on 3rd May 2018 by the said counsel for the defendants in the counter-claim.

7. From the summary, above, of the background of this case it is clear that NBK has Judgment against the very directors it seeks to cross examine on the assets of the companies. In respect to that Judgment it is not clear why it has not proceeded to execute.

8. This court does have statutory discretion to order cross examination of directors of a debtor company. Such cross examination is intended to aid in asset disclosure. In this case NBK has deponed that it has been unable to obtain assets owned by Kann and Danpoult. It is in the court’s view appropriate to order the cross examination of the directors as sought. The amount owed by the companies to NBKis significant to justify such cross examination.

9. Accordingly, because law allows for examination of officers of a corporation the orders of the court are as follows:

a. Mrs. Josephine Wambui, David Ng’ang’a Kamau, Mr. Kibaki Muriithi and Mrs. Anne Nduta Kibaki are hereby ordered to attend court to be orally examined on oath as to the assets and liabilities of KANN GREENS LTD and DANPOULT LTD to produce the books of account and all other documents.

b. In default of such attendance Mr. Kibaki Muriithi , Mrs. Anne Nduta Kibaki, Mrs. Josephine Wambui Ng’ang’a and David Ng’ang’a Kamau will settle the decree in their individual capacity as directors and shareholders of KANN GREENS LTD and DANPOULT LIMITED.

DATED, SIGNED and DELIVERED at NAIROBI this22ndday of May2018.

MARY N. KASANGO

JUDGE

Ruling read in open court in the presence of

Court Assistant..............................Sophie

........................................for the Plaintiff

................................for the 1st Defendant

...............................for the 2nd Defendant

................................for the 3rd Defendant

................................for the 4th Defendant