https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10199

Kitale Shuttle Ltd v Korir & 3 others (Civil Appeal E169 of 2024) [2026] KEHC 10199 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10199 (KLR) Republic of Kenya In the High Court at Nakuru Civil Appeal E169 of 2024 JK Sergon, J July 9, 2026 Between Kitale Shuttle Limited Appellant and Charles K. Korir 1st Respondent Raston Motors Ltd 2nd Respondent Kitale Shuttle Services 3rd Respondent Martin Masinde 4th Respondent (Being an Appeal from the Ruling and subsequent orders of Hon. Orenge K. I., Principal Magistrate, delivered on 27th April 2022 in Nakuru CMCC No. 820 of 2017 – Charles Korir v Ratson Motors & 2 Others) Judgment 1.This is a first appeal against the ruling of the trial court (Hon. Orenge K. I., Principal Magistrate) delivered on 27th April 2022. The trial court dismissed the Appellant's application dated 27th September 2021, which sought to stop execution proceedings against its motor vehicles on the ground that the Appellant was a distinct legal entity from the judgment debtor. 2.The Appellant, being aggrieved by the said ruling, filed the present appeal on the grounds set out in the Memorandum of Appeal dated 25th July 2022. 3.This court, sitting as a first appellate court, is obligated to re-evaluate the evidence on record and draw its own conclusions, as established in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. 4.The background to this appeal is as follows; 5.In Nakuru CMCC No. 820 of 2017, the 1st Respondent (Charles K. Korir) filed suit against; Ratson Motors Ltd (1st Defendant/2nd Respondent),Kitale Shuttle Services (2nd Defendant/3rd Respondent) and Martin Masinde (3rd Defendant/4th Respondent). 6.The suit arose from a road traffic accident that occurred on 12th July 2016 involving motor vehicle registration number KCG 969H. The Plaintiff sustained injuries and was awarded judgment on 10th September 2019 for: · General Damages: Kshs. 1,200,000/= · Special Damages: Kshs. 398,528/= · Costs and Interest 7.During execution proceedings, the Appellant's motor vehicles (KCU 722D, KCK 489Q, and KCK 847R) were proclaimed by Saddabri Auctioneers. The Appellant filed objection proceedings under Order 22 Rule 51 of the Civil Procedure Rules, arguing that it was a separate legal entity from the judgment debtor, Kitale Shuttle Services, and that its property could not be attached to satisfy a judgment against another entity. The trial court dismissed the application, prompting this appeal. 8.The Appellant filed a Memorandum of Appeal dated 25th July 2022 raising the following five (5) grounds of appeal:i.That the learned magistrate erred in law and in fact in dismissing the Appellant's application with costs while there was sufficient evidence adduced to support the grant of the prayers sought in the application.ii.That the learned trial magistrate erred in law and in fact in failing to take into account the evidence on record adduced in support of the Appellant's application.iii.That the learned trial magistrate erred in law in failing to appreciate that the Appellant had proved application to the standards required by law as to warrant a grant of the prayers sought in the said application and actually made a finding in his ruling 'the 2nd Defendant is a business name and had no capacity to be sued and sue under its name. The Registrar cannot register names that were similar to other'.iv.That the learned magistrate erred in law when he failed to deal with prayer no. 6 as stated on the application dated 27th September 2021 and dismissed it without giving any reason.v.That the learned trial magistrate erred in law and fact in allowing herself to be guided by irrelevant and immaterial facts that did not form any legal basis of the Appellant's/Plaintiff's application which was straight forward. 9.The Appellant prays that the appeal be allowed with costs, the said ruling be set aside, and the application dated 27th September 2021 be allowed. 10.The Appellant's case was supported by the following documentary evidence:a.Certificate of Incorporation (SCN 1). Issued on 15th August 2013.It certifies that Kitale Shuttle Limited is incorporated under the Companies Act (Cap. 486). The company is Limited by shares.b.CR12 (SCN 2) dated 5th October 2017 which lists the directors and shareholders of the Appellant as follows: Samuel Gakuru Nganga – Director – 100 Shares Sammy Chege Nyumu – Director – 100 Shares Samuel Munga Karuki – Director – 100 Shares Fus Kamau Wangu – Director – 100 Shares Simon Murigi Mwangi – Shareholder – 100 shares Total shares being 500 and the registered office: Plot No. Railway/Canterbury Block, Mumia Highway, P.O. Box 3621, Kitale. c.Franchise Agreement (SCN 3) dated 2nd October 2016 between Kitale Shuttle (1St Party) And Joel Nganga Mathenge (2nd Party). The 2nd Party is allowed to use the name and facilities of Kitale Shuttle upon payment of goodwill. The 2nd Party is not entitled to any shares, dividends, or benefits associated with shareholding of Kitale Shuttle. Any liabilities (whether civil or criminal) in respect of the motor vehicle shall be the responsibility of the 2nd Party.d.NTSA Records (SCN 7) showing official searches for motor vehicles KCU 722D, KCK 489Q, and KCK 847R. The vehicles are registered in the name of Kitale Shuttle Limited (the Appellant).e.Warrants of Attachment and Proclamation (SCN 5 and SCN 6). Warrants of attachment issued on 29th January 2021 and 8th September 2021 and proclamation of attachment issued by Saddabri Auctioneers. The Appellant's vehicles were proclaimed.f.Police Abstract and Official Search (P Exhibit 8A) showing that motor vehicle registration number KCG 969H was involved in the accident. The registered owner of KCG 969H is Ratson Motors Limited, not the Appellant.g.Affidavit of Joel Nganga Mathenge (SCN 4a) where he confirms that he was the beneficial owner of KCG 969H.He was insured with Invesco Assurance Company Limited. (SCN 4b) being a letter copied to Joel Mathenge informing him that a suit has been instituted against him in relation to an accident. 11.The 1st Respondent's case was supported by the following evidence;a.The Plaint (Paragraph 3). Describes the 2nd Defendant as "a limited company duly incorporated under the Companies Act." Address of service: "care of P. O. Box (service of summons to be effected through the Plaintiff's Advocates offices)."b.NTSA Records (Bundle CK2) which shows transfers of motor vehicles to individual names. 12.The Appellant filed written submissions in the lower court dated 6th December 2021. Counsel for the Appellant submitted as follows:a.That the Certificate of Incorporation and CR12 are prima facie evidence that Kitale Shuttle Ltd is a separate legal entity from Kitale Shuttle Services. That the Franchise Agreement proves that the Appellant was not the operator of the vehicle and that liability rested with Joel Mathenge. The official search (P Exhibit 8A) proves that KCG 969H was owned by Ratson Motors Limited, not the Appellant. The NTSA records (SCN 7) prove that the proclaimed vehicles belong to the Appellant, not the 2nd Defendant. The Appellant was never a party to the lower court suit and was never served with summons.b.That the principle of separate corporate personality is firmly established in Kenyan law (Salomon v Salomon & Co Ltd [1897] AC 22; Chai Trading Co. Ltd v Muli Mwanzia & 2 Others [2019] eKLR).That the purpose of Order 22 objection proceedings is to protect innocent third parties from unlawful execution (Equity Bank Ltd v Gerald Wang'ombe Thuni [2015] eKLR). That execution against property belonging to a stranger to the suit offends both the Civil Procedure Rules and the principles of natural justice and relied on (National Industrial Credit Bank Ltd v S. K. Ndegwa & Another [2009] eKLR).That in objection proceedings, once the objector establishes ownership, the court has no discretion but to lift the attachment unless fraud or collusion is proved as held in (Akiba Bank Ltd v Jetha & Sons Ltd [2005] eKLR). 13.The 1st Respondent filed written submissions on the lower court dated 7th December 2021. Counsel for the 1st Respondent submitted as follows;a.That under Order 22 Rule 51, objection proceedings can only be commenced when there is actual attachment of property. That no attachment has occurred, the application is anticipatory and incompetent. That the appellant conceded that no attachment has occurred.b.That in paragraph 3 of the plaint, the 2nd Defendant was described as “a limited company duly incorporated under the Companies Act.” That the Registrar cannot register two companies with names of such similarities. That the 2nd Defendant and the Objector are one and the same thing. That the Appellant is attempting to make a “distinction without a difference.”c.That the Franchise Agreement has no legal consequences in light of the judgment.d.That the appellant has embarked on a process of stripping the company of its assets by transferring motor vehicles to individual names. 14.The appellant filed written submissions in this court dated 27th January 2026. Counsel for the Appellant submitted as follows:(a)That this court is under a duty to reconsider, re-evaluate, and re-analyze the evidence on record and draw its own conclusions as held in Selle v Associated Motor Boat Co. Ltd [1968] EA 123.(b)That the Appellant placed before the trial court overwhelming documentary evidence and the trial court erred in dismissing the application despite this evidence.(c)That the trial court failed to take into account the evidence on record. The court only referred to the Certificate of Incorporation and Franchise Agreement, disregarding the CR12, NTSA records, warrants of attachment, police abstract, and official search.(d)That the trial court misapprehended the law on legal capacity and separate legal personality. The trial court found that “the 2nd defendant is a business name and had no capacity to sue or be sued under its name” but still dismissed the application. The Appellant relied on Salomon v Salomon, Chai Trading Co. Ltd, Tawakal Airbus Ltd, and Boleyn Magic Wall Panel Ltd.(e)That the trial court failed to specifically address Prayer 6 of the application. The court dismissed the entire application without giving any reason for rejecting Prayer 6. The Appellant relied on Independent Electoral and Boundaries Commission v Stephen Mutinda Mule & 3 Others [2014] eKLR.(f)That the trial court relied on irrelevant and immaterial considerations. The court focused on “ownership of the attached property” rather than the core issue: whether the Appellant was a party to the suit.The Appellant relied on Mbogo & Another v Shah [1968] EA 93.(g)That the Appellant had obtained leave to appeal out of time. The procedural irregularities are excused in the interest of substantive justice. Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. 15.The 1st Respondent filed Written Submissions in this court dated 26th January 2026. Counsel for the 1st Respondent submitted as follows:(a)That under Section 79(G) of the Civil Procedure Act, appeals must be filed within 30 days. The appeal was filed on 1st August 2024, more than 3 months after leave was granted on 29th April 2024.The Memorandum of Appeal is dated 25th July 2022, which predates the leave granted. The Record of Appeal does not contain the order granting leave to appeal out of time. The Record of Appeal does not contain the plaint or defences. The Appellant did not apply for enlargement of time after the deadline expired. The Appellant did not pray for the court to exercise its discretion.(b)That in paragraph 3 of the plaint, the 2nd Defendant was described as “a limited company duly incorporated under the Companies Act.” Samuel Gakuru Ng’anga, a director of the Appellant, described himself as the manager of the 2nd Defendant in an earlier affidavit. The Registrar of Companies cannot register two entities with names so similar, suggesting that Kitale Shuttle Services and Kitale Shuttle Ltd are the same entity.The Applicant is attempting to strip the company of its assets by transferring motor vehicles to individual names. 16.The following issues arise for determination:a.Whether the appeal is competent;b.Whether the learned magistrate erred in dismissing the Appellant’s application;c.What orders should be made on costs. 17.The 1st Respondent raised an objection on the competence of the appeal. The arguments are as follows: · The appeal was filed more than 30 days after leave to appeal out of time was granted on 29th April 2024. The appeal was filed on 1st August 2024, more than 3 months after leave was granted. · The Memorandum of Appeal is dated 25th July 2022, which predates the leave granted. · The Record of Appeal does not contain the order granting leave to appeal out of time. · The Appellant did not apply for enlargement of time after the deadline expired. · The Appellant did not pray for the court to exercise its discretion. 18.The appellant responded that it had obtained leave to appeal out of time,he procedural irregularities are excused in the interest of substantive justice and Article 159(2)(d) of the Constitution requires courts to administer justice without undue regard to procedural technicalities. 18.I have carefully considered both parties’ arguments. I find as follows: · The ruling of the trial court was delivered on 27th April 2022. · The Appellant was granted leave to appeal out of time on 29th April 2024 in Nakuru High Court Miscellaneous Civil Application No. E101 of 2022 (Kitale Shuttle Limited v Korir & 3 others [2024] KEHC 4165 (KLR)). · The order granting leave required the Appellant to file the appeal within 30 days, that is, by 29th May 2024. · The Memorandum of Appeal was filed on 1st August 2024, 64 days late. · The Appellant did not apply for enlargement of time. · The Appellant did not pray for the court to exercise its discretion. · The Appellant did not provide any explanation for the delay. 19.The principle is clear and settled: a court cannot grant a remedy that has not been pleaded or prayed for. In Caltex Oil(Kenya) Limited v Rono Limited [2016] KECA 457 (KLR), the Court of Appeal held;“In the plaint, we have noted that the respondent never claimed to have suffered any damage as a result of the appellant’s breach. In the circumstances, having not made a claim for general damages, there cannot be a basis for awarding the same. The court has no inherent jurisdiction to award damages whether separate or in addition to specific performance where no such plea was made in its pleadings. Damages cannot be plucked from the air simply because a party alleges to have suffered an injury or loss. Damages must be pleaded so that the other party can reply through the defence. That is not what happened in this matter. It was not right for the trial court to purport to engage in an exercise in futility. No matter how many times it is canvassed before court, the respondent is not entitled to damages and the court has no basis to grant the same. To find otherwise would amount to the court exercising a power it does not have and rendering decisions without any parameters or borders which would lead to total disorder and abuse of the judicial process." 20.Furthermore, the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) held that 'extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court' and that 'a party who seeks extension of time has the burden of laying a basis, to the satisfaction of the Court.' The Court further cautioned that filing an appeal out of time without first seeking extension of time and subsequently seeking the court to regularize it is 'tantamount to moving the Court to remedy an illegality which the Court could not do.'" 21.The Appellant has neither applied for enlargement of time nor has it demonstrated good and sufficient cause for the delay. The Appellant has not prayed for the court to exercise its discretion. The court cannot, on its own motion, exercise its discretion to extend time or excuse the procedural irregularity. 22.I find that the instant appeal is incompetent having been filed out of time. The objection raised by the 1st Respondent therefore succeeds. 23.Having found that the appeal is incompetent, I need not consider the merits of the appeal. 24.Inlight of the foregoing, the appeal is hereby struck out with costs to the Respondent. 25.It is so ordered. DATED, DELIVERED, AND SIGNED AT NAKURU THIS 9TH DAY OF JULY, 2026.J. K. SERGONJUDGEIn the presence ofJamleck/Rutoh C/ANyabuti holding brief for AppellantBosibori holding brief for Ndubi for 1st Respondent