https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9498

Wambua v Vihiga Development Ltd (Miscellaneous Application E623 of 2025) [2026] KEHC 9498 (KLR) (Commercial and Tax) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9498 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E623 of 2025 MO Ado, J June 25, 2026 Between Sheila Lucia Wambua Applicant and Vihiga Development Limited Respondent Ruling Introduction 1.The Applicant filed a Notice of Motion dated 17th September 2025 brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 22 Rule 35, and Order 51 Rules 1 and 3 of the Civil Procedure Rules. 2.The Applicant seeks, inter alia, orders lifting the Respondent's corporate veil and summoning the Respondent's directors and shareholders, David Onyonka and Franklin Juma, for examination regarding satisfaction of the decree and to show cause why they should not be committed to civil jail for failure to settle the decretal sum. The Applicant also seeks costs. 3.The application is premised on the grounds that the parties recorded a consent dated 17th June 2025 pursuant to which the Court issued a decree on 18th August 2025. 4.The Applicant averred that the decree was served upon the Respondent's advocates, who acknowledged receipt. 5.That by a letter dated 2nd September 2025, she notified the Respondent's advocates that the thirty-day stay of execution granted by the Court had lapsed and demanded payment within forty-eight hours, failing which execution proceedings would be commenced. 6.According to the Applicant, the Respondent neither responded to the demand nor settled any part of the decretal sum. She contended that attempts at execution proved unsuccessful because she was unable to identify any attachable assets belonging to the Respondent company. It was therefore her case that unless the corporate veil of the Respondent was pierced and its directors held personally accountable, the decree would remain a paper decree since there were no identifiable assets against which execution could issue. 7.The Applicant maintained that failure to grant the orders sought would occasion injustice and urged the Court to allow the application in the interests of justice. 8.At the time of writing this ruling, the Respondent had not filed any response to the application despite proof of service upon its advocates on record as evidenced by the Affidavit of Service sworn on 24th September 2025 by the Applicant's counsel. Analysis and Determination 9.The Applicant filed written submissions dated 22nd June 2026, which I have duly considered. 10.The principal issue for determination is whether the Court should summon the Respondent's directors for examination regarding the Respondent's means of satisfying the decree, and whether the corporate veil should be lifted. 11.The decree herein arose from a consent entered into by the parties and adopted by the Court on 18th August 2025. The decree requires payment of Kshs. 12,717,500.00 plus interest at the rate of 14% per annum from 21st September 2023. It is not disputed that the Respondent has failed to comply with the terms of that decree. 12.The Applicant asserts that attempts to execute the decree have been unsuccessful as she has been unable to establish the existence of any attachable assets belonging to the Respondent company. 13.Order 22 Rule 35 of the Civil Procedure Rules 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; orc.any other person,be orally examined as to whether any or what debts are owing to the judgment-debtor, and whether the judgment-debtor has any and what property or means of satisfying the decree, and the court may make an order for the attendance and examination of such judgment-debtor or officer, or other person, and for the production of any books or documents." 14.In Masifield Trading (K) Ltd v Rushmore Company Limited & Another HCCC No. 1794 of 2000 [2008] eKLR, the Court stated:“I think the above rule grants this court jurisdiction to summon any officer of a company to attend court so that he may be examined on the assets and means of the company to settle the sum decreed to be paid by the company. By examining such an officer, the court may or may not lift the veil of incorporation." 15.It is not contested that the Respondent has failed to satisfy the decretal sum despite the decree having been duly issued. In the circumstances, and pursuant to Order 22 Rule 35 (b) of the Civil Procedure Rules, this Court is empowered to summon the officers of the Respondent company for examination regarding the company's assets and means of satisfying the decree. 16.Accordingly, I am satisfied that the Applicant has established sufficient grounds for summoning the Respondent's directors for examination on oath concerning the assets, liabilities, and means of the Respondent company. 17.However, about the prayer seeking the lifting of the corporate veil to hold the directors personally liable for the decretal sum, I am not persuaded that such an order is warranted at this stage. 18.In Peter O. Ngoge t/a O.P. Ngoge & Associates v Ammu Investment Company Limited [2012] eKLR, Odunga J. stated:“It is however my view that the lifting of a corporate veil is not the same thing as an application under Order 22 Rule 35 of the Civil Procedure Rules.In the latter an officer is examined as an agent of the company while in lifting the corporate veil, the mask of incorporation is lifted with the result that the shareholders are no longer agents of the company but are treated in their own rights and liability attaches to them not in their capacity as agents of the company but in their personal capacity." 19.I associate with that position. An examination under Order 22 Rule 35 is intended to facilitate discovery of the judgment debtor company's assets and means. It is distinct from proceedings seeking to impose personal liability upon directors or shareholders by lifting the corporate veil. 20.It is premature, at this stage, to pierce the corporate veil before first examining the Respondent's directors regarding the company's assets and ability to satisfy the decree. The information disclosed during such examination may assist the Court in determining whether circumstances exist that justify a departure from the principle of separate corporate personality. 21.Consequently, while the Court finds merit in the prayer seeking examination of the Respondent's directors, the prayer for lifting the corporate veil is declined at this stage. 22.Accordingly, the Notice of Motion dated 17th September 2025 succeeds, but only in part. The Court therefore makes the following orders:i.The Respondent's directors, namely David Onyonka and Franklin Juma, shall appear before this Court on a date to be fixed for examination on oath pursuant to Order 22 Rule 35 of the Civil Procedure Rules regarding the Respondent's assets, liabilities and means of satisfying the decretal sum herein.ii.The prayer for lifting the Respondent's corporate veil and holding the directors personally liable is declined at this stage.iii.Costs of the application are awarded to the Applicant. 23.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 25TH DAY OF JUNE 2026HON. MR. JUSTICE MOSES ADO JUDGE OF THE HIGH COURTIn the Presence of:Moses C/A.………………for the Applicant……………for the Respondent