[2010] KEHC 2514 (KLR)
The court found that the plaintiff had exercised reasonable diligence in attempting to execute the decree but was hindered by the defendant's lack of cooperation in disclosing its assets and financial status. The court held that it is appropriate to compel the directors of the defendant company to produce relevant...
Source-derived case information.
- Citation
- [2010] KEHC 2514 (KLR)
- Parties
- Plaintiff: Malindi Air Services Ltd; Defendant: Queensway Investment Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 484 of 1993
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Application
- Outcome
- application granted in part
- Legal Topics
- Execution of Decrees, Oral Examination of Directors, Disclosure of Assets
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Malindi Air Services Ltd
Plaintiff
Queensway Investment Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the directors of the defendant company should be compelled to produce books of accounts and documents for scrutiny.
- 2 Whether the directors should be orally examined regarding the defendant company's debts, property, and means to satisfy the decree.
Ratio Decidendi
The court found that the plaintiff had exercised reasonable diligence in attempting to execute the decree but was hindered by the defendant's lack of cooperation in disclosing its assets and financial status. The court held that it is appropriate to compel the directors of the defendant company to produce relevant documents and to be orally examined regarding the company's assets, debts, and means of satisfying the judgment. The court emphasized that execution by attachment should be pursued where feasible, rather than immediately resorting to winding up proceedings. Accordingly, the court granted the orders sought for production of documents and oral examination of the directors.
Court Disposition
application granted in part
Orders
- The directors of the defendant company, Mr. Caleb Kipkiskey and Mrs. Agnes Cheptum Kipingor, shall produce the books of accounts and other documents of the defendant company for scrutiny by the plaintiff's advocates.
- The said directors shall be orally examined as to the debts owing to the defendant, its property, and means of satisfying the decree.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Suit 484 of 1993
MALINDI AIR SERVICES LTD …………………………………….. PLAINTIFF
V E R S U S
QUEENSWAY INVESTMENT LTD ……………………………… DEFENDANT
RULING
This is an application under the provisions of Order XXI, Rule 36 of the civil procedure Rules and seeks the following orders; that:-
(a)Mr. Caleb Kipkiskey and Mrs. Agnes Cheptum Kipingor the Directors of the Defendant Company do produce to the applicants’ advocates the books of accounts and other documents of the Defendant Company for scrutiny.
(b)The said two directors of the Defendant Company be orally examined as to the debts owing to the Defendant (Judgement Debtor), and what property and where situated and means of the Defendant Judgement debtor has of satisfying the decree that was passed against the Defendant herein.
(c)Costs of this application be provided for.
I have considered the application and the affidavit in support sworn by Mr. John Cleave a director of the Plaintiff/Decree-holder Company.
The plaintiff has made reasonable efforts and diligence in attempting to execute the decree.It appears that the Defendant’s are being un-co-operative in disclosing what properties are owned by the defendant Company and its financial situation.There is no purpose for falling back to Winding-Up of a company where there is a chance of execution by attachment of property.
I do hereby grant prayers (a) and (b).I do order that Summons do issue and be served on the two directors to appear in court on 22nd March, 2010 for examination.In default the court may proceed to grant orders their absence withstanding.
Dated and delivered at Mombasa this 16th day of March,2010.
M. IBRAHIM
JUDGE