[2025] KEELRC 218 (KLR)
The court held that it is unnecessary to enjoin directors as parties before issuing summons for their examination in execution proceedings. The only order that could be granted at this stage was the issuance of summons to the directors for examination regarding the judgment debtor’s assets and means to satisfy the...
Source-derived case information.
- Citation
- [2025] KEELRC 218 (KLR)
- Parties
- Appellant: Tea Warehouse Ltd; Respondent: Titus Wabwile Khaemba; Proposed Respondent: Eric Nigel Nesbitt; Proposed Respondent: George Patrick Nesbitt; Proposed Respondent: Sidney James Nesbitt; Proposed Respondent: Mary Royce Nesbitt; Proposed Respondent: Angela Susan Nesbitt; Proposed Respondent: Nesclay Limited; Proposed Respondent: C. Steinweg Bridge Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Appeal E074 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Application for Examination of Directors and Related Orders
- Outcome
- Application partially allowed; only the prayer for issuance of summons for examination of directors granted.
- Judges
- K Ocharo
- Legal Topics
- Execution of Judgment, Lifting Corporate Veil, Director Liability, Examination of Judgment Debtor
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Tea Warehouse Ltd
Appellant
Titus Wabwile Khaemba
Respondent
Eric Nigel Nesbitt
Proposed Respondent
George Patrick Nesbitt
Proposed Respondent
Sidney James Nesbitt
Proposed Respondent
Mary Royce Nesbitt
Proposed Respondent
Angela Susan Nesbitt
Proposed Respondent
Nesclay Limited
Proposed Respondent
C. Steinweg Bridge Kenya Limited
Proposed Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Application for Examination of Directors and Related Orders
Legal Issues
- 1 Whether the court should enjoin the directors and related entities as parties for purposes of execution proceedings.
- 2 Whether summons should issue compelling directors to appear for examination regarding the judgment debtor's assets and means.
- 3 Whether the court should compel production of documents relating to the judgment debtor's financial affairs.
Ratio Decidendi
The court held that it is unnecessary to enjoin directors as parties before issuing summons for their examination in execution proceedings. The only order that could be granted at this stage was the issuance of summons to the directors for examination regarding the judgment debtor’s assets and means to satisfy the outstanding decretal sum. The other prayers, including lifting the corporate veil and holding directors personally liable, were premature and dependent on the outcome of the examination proceedings. Accordingly, only the prayer for issuance of summons was allowed, with the remaining prayers to be considered after the directors’ examination or upon further directions of the court.
Court Disposition
Application partially allowed; only the prayer for issuance of summons for examination of directors granted.
Orders
- Summons to issue compelling the directors and related entities to appear in court for examination regarding the judgment debtor’s assets, property, or financial means to satisfy the outstanding decretal sum.
Full Case Text
Judgment text and source record
37 paragraphs
Tea Warehouse Ltd v Khaemba; Nesbitt & 6 others (Proposed Respondents) (Appeal E074 of 2022) [2025] KEELRC 218 (KLR) (31 January 2025) (Ruling)
Neutral citation: [2025] KEELRC 218 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Mombasa
Appeal E074 of 2022
K Ocharo, J
January 31, 2025
Between
Tea Warehouse Ltd
Appellant
and
Titus Wabwile Khaemba
Respondent
and
Eric Nigel Nesbitt
Proposed Respondent
George Patrick Nesbitt
Proposed Respondent
Sidney James Nesbitt
Proposed Respondent
Mary Royce Nesbitt
Proposed Respondent
Angela Susan Nesbitt
Proposed Respondent
Nesclay Limited
Proposed Respondent
C. Steinweg Bridge Kenya Limited
Proposed Respondent
Ruling
1. By a Notice of Motion application dated 15th January 2025 the Respondent/Judgment Creditor seeks the following orders: -a.That this Honourable Court be pleased to enjoin Eric Nigel Nesbitt, George Patrick Nesbitt, Sidney James Nesbitt, Mary Royce Nesbitt, Angela Susan Nesbitt, Nicholas Alexander Nesbit, Nesclay Limited and C. Steinweg bridge Ltd.b.That this Honourable Court does issue summons compelling the 2nd to 9th Respondents to appear in Court for examination regarding the Judgment Debtor’s assets, property or financial means to satisfy the outstanding decretal sum of KShs. 360,000 together with accrued interest of KShs. 100,800 totalling Kshs. 460,800/- as at 15th January 2025 in ELRC No. 74 of 2022 (Mombasa Tea Warehouse Ltd -vs- Titus Wambwile Khaemba.c.That this Honourable Court does compel the 2nd to 9th Respondents as Directors and/or shareholders of the Judgment Debtor, to produce all relevant documents, including but not limited to books of accounts, financial statements, contracts and operational records of the Judgment Debtor, exhibiting the affairs of the Judgment Debtor relating to the current operations of the Judgment Debtor so as demonstrate its ability or inability to satisfy the outstanding costs in this suit.d.That in default of appearance and/or in failure to provide reasonable justification for non-compliance, this Honourable Court does declare that the Respondent/Judgment Debtor, Tea Warehouses Limited, is a mere façade or sham being used by the 2nd to 9th Respondents to shield themselves from liability.e.That in default of appearance and/or in failure to provide reasonable justification for non-compliance, this Honourable Court be pleased to lift the corporate veil and hold the 2nd to 9th Respondents personally and jointly liable for the full satisfaction of the outstanding amount of KShs. 460,800/-f.That the costs of this Application be borne by the 2nd to 9th Respondent in their personal capacities.
2. The application is anchored on the grounds set out on the face of it and those obtaining in his supporting affidavit sworn on the 15th day of January 2025.
3. The application was served on the Directors of the Judgment Debtor, but they did not oppose it in any of those ways recognized in the law or at all.
4. From the supporting affidavit, one gets an inarguable impression that the decretal sum herein has not been settled and that the Directors of the Judgment Debtor Company are as listed in limb (a) of the application.
5. Having stated this, it is, however, important to state that in an application like the instant, there is never a legal requirement that the Directors be enjoined to the proceedings before an order for issuance of summons against them is granted. As such, entertaining limb (a) of the instant application is unnecessary.
6. At this juncture, the only order that can be granted on the Applicant’s application is that sought in prayer(b) of the application. The rest of the prayers are dependent on the outcome of the proceedings – the cross-examination of the Directors. They shall, therefore, be canvassed after the cross-examination of the Directors and or further directions of the Court.
7. By reasons of the foregoing premises, for now, I allow only limb(b) of the Notice of Motion application.
READ, SIGNED AND DELIVERED THIS 31ST DAY OF JANUARY 2025. OCHARO KEBIRAJUDGE