https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12765

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **MISCELLANEOUS CIVIL APPLICATION NO. 57 OF 2020** **KIBATIA AND COMPANY ADVOCATES…........…...………..APPLICANT** **VERSUS** **KINGS GROUP OF SCHOOLS LIMITED.............…… 1ST RESPONDENT** **MARY NYAWIRA CHOMBA…………………...……….2ND RESPONDENT** **RULING** 1. The relevant history of this matter is that the **Kibatia and Company Advocates** (hereafter the Applicant) and **Kings Group of Schools Limited** (hereafter the 1st Respondent) wherein **Mary Nyawira Chomb**a is a director with three others, were prior to the institution of this cause in an advocate/client relationship; that on account of services rendered to the 1st Respondent the Applicant had filed his bill of costs which was taxed in the sum of **Kes. 7,620,159/-** in respect of which judgment was entered for the Applicant vide the ruling of this court dated 19.07.2023. 2. Subsequently the Applicant filed the motion dated 23.08.2023 seeking in prayer (1) that the four directors of the 1st Respondent be summoned to attend court on a date to be determined and directed: 3. **…to produce for inspection all books of accounts, cheque books, audited accounts and all other relevant documents of the 1st Respondent company for the period 29th July 2015 to 31st August 2023 and** 4. **be examined under oath as to the 1st Respondent’s/ judgment debtor’s assets or other means of satisfying the decree issued against the 1st Respondent on 26th July 2023.’’** 5. By a ruling delivered on 8.04.2024, the court granted these initial prayers. Subsequently, the 2nd Respondent who was served with summons appeared and was examined by counsel for the Applicant. Prayer 1 of the motion was therefore spent. 6. Thus, the substantive prayer outstanding in the motion dated 23rd August, 2023 and expressed to be brought under Section 1A, 1B and 3A of the Civil procedure Act, Order 22 rule 35 and 51 rule 1 of the Civil Procedure Rules, is prayer 2 which sought that: **‘'In default of complying with the orders of the Court issued in terms of prayer (1) above, the Court do direct that the decree issued in favour of the Applicant on 26th July, 2023 be executed personally as against the Directors of the 1st Respondent/Judgment Debtor’’** **3….** **4…..’’** 1. The motion was supported by the grounds on its face as amplified in the supporting affidavit sworn by **Karuga Maina**, a partner in the Applicant firm. To the effect that judgment was entered in favour of the Applicant against the 1st Respondent in the sum of **Kshs. 7,620,159.00/-**; that despite the issuance of the decree, the 1st Respondent had neither settled the decretal sum nor made any effort towards satisfying it; that the 2nd Respondent was currently resident in the United States of America and therefore beyond the reach of the Applicant for purposes of execution; and that some directors of the 1st Respondent resident in Kenya ought to appear before the Court to disclose the company's accounts, assets and other means through which the decretal sum may be satisfied, thereby enabling the Applicant to enjoy the fruits of its judgment. 2. The deponent took issue with the Respondents’ conduct of instructing new counsel after judgment to file what he terms a vexatious application seeking orders substantially similar to those sought in a previous application already addressed in a past ruling of the Court. According to the deponent, these actions demonstrate that the Respondents had no intention of settling the decretal amount, hence the present application. 3. The deponent further stated that unless the Court granted the orders sought, the Applicant would suffer prejudice, having pursued recovery of the decretal amount since September 2019 when the Certificate of Taxation was issued. He therefore urges the Court to allow the application in the interests of justice. 4. The initial replying affidavit dated 13th October, 2023 by the 2nd Respondent, a director of the 1st Respondent was to the effect that despite residing in the United States of America (USA), she was well acquainted with the facts of the matter. She viewed the motion as vexatious, an abuse of the court process, and intended to unfairly deny her access to justice, raising other contentious issues already determined in the court’s ruling of 8.04.2024. 5. The 2nd Respondent further denied that she had fraudulently transferred, concealed or dissipated any property or acted in a manner calculated to defeat execution, asserting that the school property was sold through a public auction conducted by **Kenya Women Microfinance Bank Limited** and not through any dealings by the Respondents; that she had always been willing to account for the affairs of the 1st Respondent company which was no longer operational, having ceased business after the school property was sold, and therefore possessed no assets capable of satisfying the decree. 6. Dismissing the Applicant’s allegations as intended to intimidate the Respondents and improperly pierce the corporate veil without any evidence of fraud, dishonesty or misuse of the corporate structure, she asserted that no exceptional circumstances existed to justify lifting the corporate veil or making the directors personally liable for the company's obligations. 7. Stating that the Applicant had failed to demonstrate that the Respondents have concealed assets, acted fraudulently, or engaged in conduct warranting the examination of directors or execution against them personally, the deponent stated that granting the orders sought would occasion grave injustice to the Respondents. She urged that the motion be dismissed with costs, for want of legal or factual foundation. 8. In her second replying affidavit sworn on 22.08.2025 in anticipation of the examination, the 2nd Respondent reiterated the contents of her earlier response as summarised above. During cross-examination by counsel for the Applicant, conducted on 1.10.2025, the 2nd Respondent stated that her co-directors **Michael Chomba** and **Reinhard Chomba** reside in the USA, while **Anthony Joseph Kamau** resides in Canada, and **Jane Wanjiku** in Kenya . 9. She further stated that the 1st Respondent company operated a school business but had ceased operations in 2018 after the land on which the school was erected was sold by public auction by financiers upon defaulting on its obligations. That by 2017 the school had all but stopped admitting students and only two students remained in 2018. She added that the 1st Respondent had become dormant but has not been wound up due to ongoing litigation involving the bank that had financed the business. 10. Adding that prior to the auction the bank had set a reserve price of Kshs.70 million but later indicated that it was willing to accept an offer of Kshs.75 million, but that, acting on the advice of the Applicant, she gave him written instructions to sell the property, but nothing materialized and the property was eventually sold by the bank. Stating that she had authorized the applicant to attempt to sell the property for Kshs.75 million, she acknowledged that this proposed selling price was higher than the bank's reserve price of Kshs.70 million. 11. Disputing the judgment sum herein, she claimed she had previously paid in piecemeal to the Applicant, sums amounting to almost Kshs.2 million whenever they met. But she admitted that she had no documentary record of the alleged payments. 12. During re-examination she testified that the company has remained dormant since 2018, and that the directors were distressed to learn that the bank had succeeded in litigation against the 1st Respondent and ultimately sold their property, which she estimated to be worth over Kshs. 200 million. And that, following these events, she and other directors relocated to the United States of America. **Submissions** 1. Following the examination of the 2nd Respondent, the parties were directed to file submissions. The Applicant’s submissions are dated 6th October, 2025. Therein, it was reiterated that the Applicant was a lawful decree-holder which had been left pursuing an empty corporate shell after the directors of the 1st Respondent orchestrated the dissipation of the company's assets and now seek refuge behind the doctrine of separate corporate personality. 2. The Applicant argued that the sole issue for determination is whether the directors of the 1st Respondent should be held personally liable for the decretal sum. Contending in that regard that while the doctrine of corporate personality is well established, it is not absolute and the court ought to pierce the corporate veil where the company had been used as an instrument of fraud or to evade legal obligations. In support of this proposition, the locus classicus, **Salomon v Salomon & Co. Ltd [1897] AC 22** was cited. Also relied on was **Homelex Limited v Peermohamed Boutique Limited & 2 Others [2024] KEHC 7500 (KLR)**, where the court reaffirmed that the veil of incorporation may be lifted where a company is merely a façade or mask used to conceal wrongdoing. 3. The Applicant asserted further that the conduct of the 1st Respondent’s directors demonstrates a deliberate abuse of the corporate mold. Emphasizing that despite express court orders issued on 8 April 2024 directing the directors to attend court and produce the company's books of accounts and financial records, they deliberately failed to comply. A failure, it was contended, that was not accidental but a calculated attempt to conceal the company's financial affairs and frustrate execution. 4. And reiterating that parties who deliberately disobey court orders should not benefit from such misconduct, placed reliance on **Teachers Service Commission v Kenya National Union of Teachers & 2 Others [2013] eKLR**, for the holding that court orders are not mere suggestions but binding directives that must be obeyed until lawfully set aside, and that disobedience undermines the rule of law. The Applicant therefore argued that the Respondents' contempt was evidence of bad faith and was part of a wider fraudulent scheme intended to defeat the Applicant's decree. 5. Contending that the financial history of the 1st Respondent revealed a deliberate pattern of fraud, counsel cited the fact that the company secured financing amounting to approximately Kshs.47 million but defaulted almost immediately, unable to honour its obligations. This rapid financial collapse, it was asserted, could not have occurred innocently but instead points to a calculated scheme designed to defeat creditors. Moreover, four of the company's five directors reside outside Kenya, which, according to the Applicant, demonstrated a deliberate attempt to place themselves beyond the reach of the court while leaving the company devoid of assets against which execution can issue. 6. The Applicant also submits that the 2nd Respondents' evidence discloses fraudulent conduct, and that while the school property was sold for approximately Kshs.70 million to recover a debt of Ksh.52 million, the Respondents have failed to account for the surplus proceeds after satisfaction of the secured debt. According to the Applicant, no documentary evidence has been produced showing how those proceeds were utilized or explaining why the decretal amount remains unpaid. In counsel’s view, the unexplained disappearance of the surplus funds amounts to misappropriation by the directors and justifies piercing the corporate veil. 7. The Applicant further contends that the Respondents' assertion that the company has remained dormant since 2018 is contradicted by the fact that it continues to instruct advocates, defend proceedings and actively litigate in the company's name. This inconsistency, it argued, demonstrates that the plea of dormancy is merely intended to evade payment of the decree. 8. Taking aim at the credibility of the 2nd Respondent's evidence that approximately Kshs.2 million had been paid to the Applicant, the Applicant pointed out that the claim was unsupported by any bank statements, company cheques, ledger entries or other documentary proof. Hence, the alleged payment was merely intended to create the false impression that the company had acted in good faith when in reality no such payment was ever made. This is cited as evidence of deliberate falsehoods which further demonstrate dishonesty and reinforce the need for the court to intervene by disregarding the company's separate legal personality. 9. The Applicant submitted that the circumstances of the case satisfy the legal principles governing the lifting of the corporate veil, citing **Jones & Another v Lipman & Another [1962] 1 WLR 833**, where the court held that the veil of incorporation may be lifted where a company is incorporated or used as a mask or device to conceal the true actors from the eyes of equity. And **Riccatti Business College of East Africa Limited v Kyanzavi Farmers Company Limited [2016] eKLR**, where the Court of Appeal held that the court may exercise its inherent jurisdiction to pierce the corporate veil where there is fraud, improper conduct or where the company is merely a sham used to avoid legal obligations. Counsel stating that the present case falls within those exceptions because the directors have abused the corporate structure to shield themselves from liability while frustrating execution of a lawful decree. 10. In summation counsel for the Applicant invoked the court's inherent jurisdiction under **Section 3A of the Civil Procedure Act**, which empowers this court to make any orders necessary to achieve the ends of justice and prevent abuse of its process. Stating further that unless the corporate veil was lifted, the Applicant would hold onto a paper judgment incapable of enforcement while the directors unjustly retain the benefits of the company's assets. The Applicant therefore urged the court to pierce the corporate veil, hold the directors jointly and severally liable for the decretal amount, by granting the orders sought in the motion with costs. 11. By submissions, dated 14th January, 2026, counsel for the Respondents asserted that the Applicant had failed to establish any legal or factual basis upon which the court should lift the corporate veil of the 1st Respondent. Contending that the doctrine of separate corporate personality remains a fundamental principle of company law and that the veil of incorporation can only be lifted in exceptional circumstances where fraud, bad faith, improper conduct or abuse of the corporate structure has been demonstrated. According to the Respondents, none of these circumstances has been proved in the present case. 12. He cited **Victor Mabachi & Another v Nurtun Bates Limited [2013] KECA 204 (KLR), Civil Appeal No. 247 of 2005**, where the Court of Appeal reaffirmed that a company is a separate legal person distinct from its shareholders, directors and agents unless there are factors warranting the lifting of the corporate veil. And **Jones & Another v Lipman & Another [1962] 1 WLR 833**, in which **Russell J**. held that the corporate veil may only be pierced where a company is merely a cloak, sham or mask intended to conceal the true actors and avoid the intervention of equity. 13. Counsel further submitted that it was settled law that the corporate veil should only be lifted where justice so demands and where there is evidence of fraud or improper conduct. As held in **Stephen Njoroge Gikera & Another v Econite Mining Company Limited & 7 Others [2018] KECA 25 (KLR), Civil Appeal No. 5 of 2017**, wherein the Court of Appeal adopted the principles contained in **Halsbury's Laws of England, 4th Edition, paragraph 90**, that a court may disregard a company's separate personality only where there is fraud, improper conduct or where the character of those controlling the company makes it necessary, to do justice. 14. Also cited was **Mbarak v Vyas Hauliers Ltd [2025] KEHC 1770 (KLR), Civil Appeal No. 275 of 2018**, where the case of **Riccatti Business College of East Africa Limited v Kyanzavi Farmers Company Limited [2016] eKLR**, was cited for the holding that the court's inherent jurisdiction to pierce the corporate veil may only be exercised in special circumstances where fraud, improper conduct, sham transactions or tax evasion are demonstrated. And the case of **Jepkemoi v Zaburi Enterprises Company Ltd & 2 Others (Miscellaneous Civil Application No. 43 of 2023) [2024] KEHC 2343 (KLR)**. 15. Counsel argued that, applying the authorities to the facts of this case, there was no proof that the 1st Respondent was a sham company or that its directors acted fraudulently. And pointing to the 2nd Respondent presenting herself for cross-examination stated that she candidly explained the affairs of the company. By disclosing that the company ceased operations in 2017 due to financial distress, well before the decree herein. Facts that the Applicant was allegedly aware of before these proceedings commenced. 16. Restating evidence by the 2nd Respondent, counsel asserted that a company which voluntarily authorizes the sale of its assets to satisfy creditors cannot simultaneously be described as a sham established to defeat creditors. And that the Applicant's knowledge of the company's financial collapse negates any allegation that the directors deliberately orchestrated the company's inability to satisfy the decree. 17. The Respondents’ counsel also contended that the Applicant had wrongly equated insolvency of the 1st Respondent with fraud. And once more citing **Riccatti Business College of East Africa Limited v Kyanzavi Farmers Company Limited [2016] KECA 763 (KLR), Civil Appeal No. 325 of 2010**, reiterated the dicta therein. And **Corporate Insurance Company Limited v Savemax Insurance Brokers Limited [2002] 1 EA 41**, for the statement by **Ringera J.** (as he then was) that the veil of incorporation cannot be lifted merely because a company has no assets or is unable to pay its debts, since the law provides other remedies against insolvent companies. 18. With respect to the issue of the company's accounts and assets, counsel reiterated that the company ceased operations several years ago and that the disposal of its land was the subject of pending litigation before the High Court in **Kajiado High Court Civil Suit No. 27 of 2023, Mary Nyawira Chomba & Another v Kenya Women Microfinance Bank & 3 Others**, and **Kajiado High Court Civil Suit No. 26 of 2025, Mary Nyawira Chomba & Another v Credit Bank Limited & 3 Others**. Thus contending that there is no evidence, beyond speculation, that the directors personally benefited from the sale proceeds or diverted company assets for their own use. 19. Taking issue with the Applicant's submissions which allegedly improperly contain unproved factual allegations counsel called to aid dicta in **Mwabili v Nayab Motors Limited & Another [2025] KEHC 11393 (KLR)**, the Court of Appeal decision in **Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR**, that submissions cannot replace evidence. 20. The Respondents’ counsel also submitted that the examination of directors under Order 22 Rule 35 of the Civil Procedure Rules is merely an investigative process intended to enable the court to determine whether circumstances exist to justify lifting the corporate veil. In this regard, counsel relied on the case of **Ameer Shaker t/a Esnad General Trading Ltd v Pundberry Limited [2024] KEHC 4133 (KLR)**, where the court, citing **Kolaba Enterprise Ltd v Shamsudin Hussein Varvani & Another [2014] eKLR**, held that the veil of incorporation should not be lifted before examination establishes fraud, improper conduct or criminal activity. According to counsel, the examination conducted in this case revealed no evidence of fraud, dishonesty or improper conduct and therefore provides no legal basis for imposing personal liability upon the directors. 21. Finally, counsel for the Respondents submitted that the authorities cited by the Applicant support their position, by recognizing that the corporate veil may only be pierced in exceptional cases involving fraud or improper conduct. The decisions are **Homelex Limited v Peermohamed Boutique Limited & 2 Others [2024] KEHC 7500 (KLR)**, which drew inspiration from **Salomon v Salomon & Co. Ltd [1897] AC 22**, **Jones & Another v Lipman & Another [1962] 1 WLR 833**, and **Riccatti Business College of East Africa Limited v Kyanzavi Farmers Company Limited [2016] eKLR**. Contending therefore that the evidence before the court demonstrated nothing more than the collapse of a business and not any fraudulent conduct on the part of the directors. The court was urged to find that the stringent legal threshold for piercing the corporate veil has not been satisfied and to dismiss the application with costs. **Analysis and Determination** 1. The court has considered the affidavit material in respect of the remaining prayers in the motion dated 23rd August 2023, and the oral testimony of the 2nd Respondent and the rival submissions by counsel. 2. The Applicant is seeking to have the court pierce the corporate veil of the 1st Respondent company and permit execution of the decree against its directors personally. The court must determine whether the Applicant has discharged its burden by establishing sufficient legal and factual grounds to warrant lifting the corporate veil of the 1st Respondent and rendering its directors personally liable for the decretal sum. 3. The doctrine of the separate corporate personality is a cornerstone of company law. Since **Salomon v Salomon & Co. Ltd [1897] AC 22,** the law has consistently recognized that upon incorporation, a company acquires a legal personality distinct from its shareholders and directors. Consequently, debts and liabilities of the company are ordinarily its own and not those of its members save where exceptional circumstances justify departure. There is a long line of authorities affirming this principle by Kenyan courts. 4. The Court of Appeal in affirming this principle in **Multichoice (Kenya) Limited v Wananchi Group (Kenya) Limited & Another [2020] eKLR**, observed that incorporation creates a separate juridical entity whose liabilities cannot ordinarily be visited upon its shareholders or directors merely because they control its affairs. The Court emphasized that the corporate veil may only be lifted in exceptional circumstances recognised by law, particularly where incorporation has been abused to perpetrate fraud or evade legal obligations. 5. Similarly, in **Victor Mabachi & Another v Nurtun Bates Limited [2013] eKLR,** the Court of Appeal observed that once a company is incorporated, it becomes a legal person separate from its directors, shareholders and agents, unless circumstances exist warranting the lifting of the corporate veil. That decision also demonstrates that courts do not disregard corporate personality merely because recovery of a debt has become difficult. Rather, there must exist cogent evidence that the company is being employed as an instrument of fraud, dishonesty or improper conduct. 6. The jurisdiction to lift the corporate veil is therefore exercised sparingly and in exceptional circumstances. It is intended to prevent injustice and not to punish directors merely because the company has become insolvent or incapable of satisfying its debts. As the Court of Appeal held in **Riccatti Business College of East Africa Limited v Kyanzavi Farmers Company Limited [2016] eKLR**, the court's inherent jurisdiction may only be exercised where there exist special circumstances demonstrating fraud, improper conduct, sham transactions or abuse of incorporation. 7. Section 3A of the CPA, reserves the inherent power of the Court ***“to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the court”.*** Regarding the provision, the Court of Appeal in **Rose Njoki King’au & Another v Shaba Trustees Limited & Another [2018] eKLR,** observed that: **“Also cited was Section 3A of the Civil Procedure Act which enshrines the inherent power of the Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court. In Equity Bank Ltd v West Link Mbo Limited [2013], eKLR, Musinga, JA stated inter alia, that, by “inherent power” it means that**: ***“Courts of law exist to administer justice and in so doing, they must of necessity balance between competing rights and interests of different parties but within the confines of law, to ensure that the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without its being derived from the Constitution or statute. Such power enables the judiciary to deliver on their constitutional mandate…..inherent power is therefore the natural or essential power conferred upon the court irrespective of any conferment of discretion.”*** **The Supreme Court went further in Board of Governors, Moi High School Kabarak & Anor v Malcolm Bell [2013] eKLR, to add the following: -** ***“Inherent powers are endowments to the court as will enable it to remain standing as a constitutional authority and to ensure its internal mechanisms are functional. It includes such powers as enable the Court to regulate its intended conduct, to safeguard itself against contemplation or descriptive intrusion from elsewhere and to ensure that its mode of disclosure or duty is consumable, fair and just.” (sic)*** 1. The submissions on the motion highlighted several claims, including that the directors had failed to produce the company's books of accounts as ordered by the court, that the company has failed to satisfy the decree despite judgment having been entered against the company and that there were no assets capable of satisfying the outstanding decree after the sale by auction of the land forming the key asset of the company pursuant to alleged suspicious but deliberate events orchestrated by the Respondents, while the directors have removed themselves from the jurisdiction of the court.. 2. There is no dispute that the 1st Respondent company operated a school business and that in or around 2018 the property upon which the school was erected was sold by the financier in realization of the security. Whether in fact the company and school ceased operations in 2018 rendering the company moribund or dormant is a matter asserted by the 2nd Respondent, but which is unverifiable by the court, as the company did not produce the financial records in respect of the material period, as had been directed by the court. Admittedly, the company has not been wound up and has continued to instruct its lawyers to prosecute litigation on its behalf, itself suggestive of possession of means to that end. 3. Whereas no direct or indirect evidence of fraud was demonstrated, this court was struck by the casual manner adopted by the 2nd Respondent at the hearing. Despite clear orders for the production of **all books of accounts, cheque books, audited accounts and all other relevant documents of the 1st Respondent company for the period 29th July 2015 to 31st August 2023,** having been issued,the 2nd Respondent elected to rely on her bare and sketchy oral statements, and did not consider it necessary to explain the non-compliance with court orders for production of books. And this by a person who, by her sworn affidavit asserted her willingness to account for the affairs of the 1st Respondent. Instead, she was at pains to dispute the quantum of fees owed to the Applicant, a settled matter, while claiming without evidence that she had paid approximately Kes.2 million to the Applicant, as fees. These obvious falsehoods do not place her in good light. 4. Without financial records being proffered, how was the court supposed to ascertain the financial capacity of the judgment debtor, in this case, the 1st Respondent, by way of means or assets available to satisfy the decree?. Although it is a truism that as held in **Corporate Insurance Company Limited vs Savemax Insurance Broker Limited (2002) EA 41** that the veil of incorporation will not be lifted merely because a company has no means and assets to pay its debt, it is also true that such company is obligated, upon an order of the court being made, to furnish books of accounts to enable the court ascertain its true financial status. How else would the decree holder prove fraud or improper conduct or other abuse of incorporation? 5. That obligation does not amount to shifting the burden of proof on the judgment debtor because such financial records are deemed, in the absence of an explanation to the contrary, to be evidence within the possession and knowledge of the company. In this case, the court by its ruling on 8.04.2024 was satisfied to order the 1st Respondent to produce its books for examination. 6. These were pertinent for the ascertainment of the issues arising from the motion and given the inexplicable failure by the Respondents to tender them, this court is justified to draw the inference that such records if produced would have proven adverse to the Respondents. And that the Respondents’ intention was to conceal from the court the state of financial affairs of the judgment debtor company, hence avoiding its obligations to creditors like the Applicant. Section 112 of the Evidence Act states that: **‘’In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.’’** 1. In **Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012]eKLR** the High Court stated as follows concerning the above section: **‘’Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”** 1. The foregoing reasoning was approved by the Court of Appeal in **Kenya Power & Lighting Company Limited v Margaret Akoth Olang (2017) KECA 532 (KLR)** where the Court observed concerning similar conduct by the appellant therein that**:** **‘’Though it prepared its own report, for reasons best known to itself, the appellant failed to avail the report to court. On the authority of Kimotho v. KCB [2003]1 EA 108, the trial court cannot be faulted in drawing an adverse inference against the appellant for its failure to call this evidence which was crucial and would have gone a long way in fortifying its case’’.** **See also Muriithi v Karanja (2026) KEHC 6251 (KLR)** 1. Undoubtedly, the rationale behind Order 22 Rule 35 CPR is to empower the court to summon directors and or officers of a judgment debtor company for examination regarding its assets and financial affairs. That jurisdiction is based on the commonsense premise that information regarding a company's assets ordinarily is within the knowledge of its officers and directors. 2. And whereas the examination envisaged by Order 22 Rule 35 CPR is essentially investigative to assist the court in discovering whether assets exist and whether circumstances justify further relief, where a company deliberately fails to comply with the order to produce such records, and offers no explanation, the mischief of concealment must be inferred. In this case, as bolstered by the fact that while allegedly moribund, the judgment debtor company continues to instruct counsel to litigate in several matters, whereas the directors have all left the jurisdiction of the court, allegedly because of distress induced by the loss of their business. 3. The lament by the Applicant that both the assets and directors of the 1st Respondent have been taken out of its reach and that unless the court intervenes, the decree will be rendered meaningless does not appear exaggerated in these circumstances. The court cannot be hamstrung in the face of apparent mischief by a judgment debtor that appears to cynically to consider itself unaccountable, even at the barest minimum, for a decree calling for satisfaction. The sums claimed were taxed in 2019, and despite the entry of judgment by this court, the 2nd Respondent when she appeared in court appeared more keen on disputing the debt than attending to the purpose of the summons. 4. This is an appropriate case, in the court’s view, where the inherent jurisdiction of the court must be invoked so that the decree is not rendered worthless, in the same manner as its subsequent orders to the judgment debtor. In short, to ensure ends of justice and to prevent abuse of the process of the Court. 5. In the result, the court finds that the material presented before it demonstrates improper and cynical conduct on the part of the Respondents, and that the veil of incorporation is being used here as a convenient camouflage to deflect the Applicant’s attempts at execution of the unsatisfied decree in its favour. All aimed at denying the Applicant due enjoyment of the fruits of judgment in its favour. Prayer 2 of the motion dated 23.08.2023 is therefore merited and is granted with costs to the Applicant. **DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 7TH DAY OF AUGUST 2026** **** **C. MEOLI** **JUDGE** **In the presence of:** **For the Applicant: Ms. Wariara h/b for Ms. Njoroge** **For the Respondents**: **Mr. Githinji** **C/A: Lepatei**