https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12801

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL AND TAX DIVISION** **HCCOMM MISC. APP. NO E576 OF 2026** **TAIFA IMPORTS LIMITED…………………………….……..CLAIMANT** **-VERSUS-** **SAFAMART SUPERMARKET LIMITED......…………….RESPONDENT** **RULING** 1. The claimant filed a Notice of Motion application dated 19th May 2026 under the provisions of Sections 148, 787, 996 & 1002 of the Companies Act, Section 1A, 1B, 3A & 34 of the Civil Procedure Act, and Order 22 Rule 35 of the Civil Procedure Rules. 2. The claimant sought orders lifting or piercing the respondent’s corporate veil, so that, for purposes of execution, the company is treated as one and the same as its controlling directors, an order for leave to execute the judgment, decree, costs, interest, and auctioneers' charges against the respondent's directors, Abdishakur Omar Hassan and Ismail Omar Hassan and orders committing Hassan Abdulrahim Abud and Abdulatif Juma to civil jail until the decretal sum, together with costs, interest, and auctioneers' charges, are fully settled. 3. The application is premised on the grounds on the face of the motion and is supported by an affidavit sworn on the same day by Tahmid Iqbal Habib Kanji, the Director of the claimant company. Mr. Kanji averred that between March and June 2024, the claimant sold and delivered goods worth Kshs. 227,322.47/= to the respondent at its request, but the respondent failed to pay despite accepting delivery. He further averred that judgment was entered in the claimant's favour against the respondent in Nairobi SCCCOMM No. E99433 of 2025 - Taifa Imports Limited v Safamart Supermarket Ltd, on 14th October 2025. However, despite service of the decree and proclamation by auctioneers, the respondent has refused to satisfy the decretal sum. 4. Mr. Kanji deposed that the respondent's directors deliberately closed the company's business premises, relocated from the address reflected in the company's CR12 and commenced operations under a different company or business name at a new location, with the intention of frustrating execution of the decree. He contended that the said directors have refused to make any payment towards the decretal sum while hiding behind the corporate personality of the respondent company. Mr. Kanji maintained that the corporate veil should be lifted because the respondent's directors and shareholders are using the company as an instrument of fraud and for improper purposes, including evading lawful obligations, defeating execution, abusing the privilege of incorporation, and avoiding recognition by a court of equity. 5. Upon perusal of the Court record and the Case Tracking System, it is manifest that although the respondent was duly served with the pleadings herein, it did not file any responses in opposition thereto. 6. Upon consideration of the instant application, the grounds on its face and the affidavit filed in support thereof, the issues that arise for determination are – 7. ***Whether the respondent’s corporate veil should be lifted and/or pierced for purposes of execution of the decree herein;*** 8. ***Whether the claimant should be granted leave to execute the judgment, decree, costs, interest, and auctioneers' charges against the respondent's directors, Abdishakur Omar Hassan and Ismail Omar Hassan; and*** 9. ***Whether Hassan Abdulrahim Abud and Abdulatif Juma should be committed to civil jail until the decretal sum, together with costs, interest, and auctioneers' charges, are fully settled.*** 10. Upon perusal of the Court record and the pleadings filed in this suit, it is noteworthy that there is a question of whether or not this Court’s jurisdiction to hear and determine the instant application was properly invoked. Therefore, before addressing the substantive prayers sought by the claimant, this Court must first satisfy itself that it has jurisdiction to entertain the application. It is now well settled that the issue of jurisdiction need not be raised by the parties to the suit, the Court may *suo moto* determine whether it has jurisdiction, particularly where lack of jurisdiction is inferred from the pleadings as is the case herein. 11. The locus classicus on jurisdiction is the case of **Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd [1989] KLR 1**. where Nyarangi, JA. held that – ***“…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”*** 1. Examination of a judgment debtor as to his means and/or assets to satisfy a decree is provided for under Order 22 Rule 35 of the Civil Procedure Rules which states – ***“Where a decree is for the payment of money, the decree- holder may apply to the court for an order that -*** 1. ***the judgment-debtor;*** 2. ***in the case of a corporation, any officer thereof; or*** 3. ***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.”*** 1. A review of the record discloses no evidence or indication that the Small Claims Court, which issued the decree sought to be executed, has been divested of jurisdiction to entertain applications relating to the execution of its decree. Further, Section 34(1) Civil Procedure Act provides that – ***“All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.”*** 1. Additionally, Section 29 of the Civil Procedure Act defines the term “court which passed a decree” as hereunder – ***“The expression "court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, except where the context otherwise requires, include -*** 1. ***where the decree to be executed has been passed in the exercise of appellate jurisdiction, the court of first instance; and*** 2. ***where the court of first instance has ceased to exist or to have jurisdiction to execute it, the court which, if the suit wherein the decree was passed were instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.”*** 3. This Court concurs with the holding in the case of **Jepkemoi v Zaburi Enterprises Company Ltd & 2 others [2024] KEHC 2343 (KLR)** wherein the court explained the provisions of section 29 of the Civil Procedure Act and held that – ***“Explanation (a) above points to the trial Court as the Court to oversee execution of its decree and the situation cited in (b) above does not arise in the instant situation since the trial Court has not ceased to exist nor has it been alleged or demonstrated that it has since been divested of jurisdiction. In the circumstances, I find that this Court has no original jurisdiction to deal with matters arising out of execution of the decree of the Magistrate’s Court. This Court’s jurisdiction is only on appeals. Although the High Court has inherent powers, the same has to be exercised within procedural boundaries.”*** 1. The record shows that the decree which the claimant seeks to enforce was issued in Nairobi SCCCOMM No. E99433 of 2025 - *Taifa Imports Limited v Safamart Supermarket Ltd*, by the Small Claims Court. Notably, the proceedings herein are not the proceedings in which that decree was issued, nor has any evidence been placed before this Court demonstrating that the decree has been transferred to this Court for execution in accordance with the provisions of the Civil Procedure Act. Further, no evidence has been adduced demonstrating that the Small Claims Court has ceased to exist or has become incapable of executing its own decree so as to invoke the provisions of Section 29(b) of the Civil Procedure Act. 2. This Court notes that the prayers sought in the instant application are not independent substantive causes of action. They arise directly from, and are ancillary to, the execution of the decree issued by the Small Claims Court. The claimant seeks to pierce the respondent company's corporate veil, execute the decree against its directors, and commit the said directors to civil jail for non-payment of the decretal sum. This Court opines that each of these prayers concerns the manner in which the decree is to be executed and satisfied. 3. Consequently, by virtue of section 34 of the Civil Procedure Act, those questions fall within the jurisdiction of the Court executing the decree. It is that Court which is vested by law with jurisdiction to determine whether the company's officers should be examined under Order 22 Rule 35 of the Civil Procedure Rules, whether the circumstances justify lifting the corporate veil for purposes of execution, and whether any other coercive measures of execution should issue. To permit another Court to determine those questions would offend the statutory scheme governing execution proceedings and potentially result in parallel or conflicting execution processes. 4. It is noteworthy that the claimant has not cited any statutory provision conferring original jurisdiction upon this Court to supervise or intervene in the execution of a decree issued by the Small Claims Court. Similarly, the provisions of the Companies Act cited in the application do not confer jurisdiction upon this Court to exercise original jurisdiction over execution proceedings already governed by the Civil Procedure Act and pending under a decree issued by another competent Court. 5. In view of the foregoing, this Court finds that the claimant has not demonstrated any legal basis upon which this Court may assume jurisdiction over execution proceedings arising from a decree issued by the Small Claims Court. Further, this court opines that the circumstances of this case do not provide for a scenario where this Court’s inherent jurisdiction provided for under section 3A of the Civil Procedure Act can be invoked. The Court's inherent jurisdiction cannot be invoked to confer jurisdiction where none exists. 6. This Court therefore finds that its jurisdiction has not been properly invoked. The proper forum for seeking the orders sought is the Small Claims Court that issued the decree, or any Court lawfully seized of the execution proceedings following a lawful transfer of the decree under the Civil Procedure Act. 7. Having found that it lacks jurisdiction to entertain the application, this Court downs its tools in line with the holding by the court in the case of **Owners of the Motor Vessel “Lillian S’ v Caltex Oil (Kenya) Ltd** ***(supra).*** It would therefore serve no useful purpose to determine the merits of the claimant's application as doing so would amount to exercising jurisdiction which this Court does not possess. 8. The upshot of the foregoing is that the instant application is incompetent for want of jurisdiction and therefore struck out. Given that the respondent neither entered appearance nor opposed the application, there shall be no order as to costs. 9. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 6TH DAY OF AUGUST, 2026** **W.N. MOLONKO** **JUDGE** ***Delivered Virtually in the presence of-*** ***Odeny for the Applicant.*** ***N/A for the Respondent.*** ***Susan Nzioka- Court Assistant***