https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8587

Tikoo & Company Ltd v Bristle Research & Consultancy Services Ltd (Miscellaneous Application E1036 of 2025) [2026] KEHC 8587 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8587 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E1036 of 2025 FG Mugambi, J June 19, 2026 Between Tikoo & Company Limited Applicant and Bristle Research & Consultancy Services Limited Respondent Ruling Introduction and Background 1.The Applicant, by an application dated 3rd October 2025, brought under inter alia Order 22 Rule 35 of the Civil Procedure Rules, seeks the issuance of summons directed to the Respondent's last known director. The purpose of the summons is to compel the said director to appear and be orally examined as to the Respondent's assets, liabilities, and means of satisfying the decree entered against it by the Small Claims Court. The applicant further seeks a Notice to Show Cause to be issued against Stephen Otieno Ogutu as to why the Decree herein should not be issued, executed, against him personally as the Director of the Judgment Debtor. 2.In response, the Respondent filed a Notice of Preliminary Objection dated 15th January 2026, seeking to strike out the application on three grounds: first, that this Court lacks jurisdiction to hear the application, given that the decree sought to be executed was issued by the Small Claims Court, which remains operational and is capable of handling its own execution process; second, that entertaining the application would violate section 34(1) of the Civil Procedure Act and Order 22 Rule 6 of the Civil Procedure Rules, which govern the question of which court ought to handle execution matters; and third, that this Court has, in several previous decisions, held that the trial court, in this instance, the Small Claims Court, retains jurisdiction over proceedings brought under Order 22 Rule 35 of the Rules, upon which the Applicant's application is founded. 3.The Court directed that the Preliminary Objection be heard in priority to the substantive application, and that the parties canvass it by way of written submissions. Those submissions are now on record, and I shall make relevant references to them in the analysis and determination that follows. Analysis and Determination 4.From the submissions of the parties, the Court is called upon to determine whether it has jurisdiction to entertain the Applicant's application under Order 22 Rule 35 of the Civil Procedure Rules in respect of a decree emanating from the Small Claims Court. As submitted by the Respondent, jurisdiction is everything. Without it, a court has no power to take even one further step. Where a court lacks jurisdiction, there is no basis for the continuation of proceedings pending other evidence, and a court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. See Nyarangi JA in The Owners of Motor Vessel "Lillian S" V Caltex Kenya Limited, [1989] KECA 48 (KLR). 5.The Respondent submits that this Court lacks original jurisdiction to hear and determine the application and that the same ought to have been filed in the Small Claims Court. It relies on section 34(1) of the Civil Procedure Act and Order 22 Rule 6 of the Civil Procedure Rules, which provide as follows:“(34). Questions to be determined by the court executing the decree:SUBPARA (1)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.Application for execution [Order 22, Rule 6]:Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or, if the decree has been sent under the provisions hereinbefore contained to another court, then to such court or to the proper officer thereof; and applications under this rule shall be in accordance with Form No. 14 of Appendix A:Provided that, where judgment in default of appearance or defence has been entered against a defendant, no execution by payment, attachment or eviction shall issue unless not less than ten days' notice of the entry of judgment has been given to him either at his address for service or served on him personally, and a copy of that notice shall be filed with the first application for execution.” 6.The Respondent further relies on the decisions in Jepkemoi V Zaburi Enterprises Company Ltd & 2 Others, [2024] KEHC 2343 (KLR); Agrotech and Input Supplies Ltd V Imexia Ltd, [2025] KEHC 9008 (KLR); Shri Krishana Overseas Limited V Damian Limited, [2025] KEHC 11598 (KLR), and Sheman Limited V Palacio Motors Limited, [2025] KEHC 261 (KLR), where it was held that it is the trial court that has jurisdiction to hear and determine an application under Order 22 Rule 35 of the Rules, and that there is nothing in the Rules or the Small Claims Court Act that divests the Small Claims Court of jurisdiction to hear an application relating to the execution of its own decree. 7.On its part, the Applicant submits that this Court has unlimited original jurisdiction conferred by Article 165(3)(a) of the Constitution. It relies on the decisions of this Court in Vintage Liquor & Wine Limited V Winadmelant (Wama) Limited, [2025] KEHC 15811 (KLR); Masefield Trading (K) Ltd V Rushmore Company Limited & Another [2008] KEHC 798 (KLR); and Ultimate Laboratories V Tasha Bioservice Ltd, [2000] eKLR, where it was held that this Court has jurisdiction under Order 22 Rule 35 to summon officers of a company for examination and, where appropriate, to lift the corporate veil for the purpose of discovery in aid of execution. 8.I have carefully considered the foregoing statutory provisions and the decisions cited by the parties. I find that the question of jurisdiction in this matter is not simply one of which court issued the decree. The matter turns on the specific legal remedy sought by the Applicant and the jurisdiction that attaches to it by statute. I agree with the general proposition that, as a rule, execution of a decree ought to be handled by the court that issued it. That principle finds expression in the statute books as laid out above. However, that general rule yields where a specific statutory framework vests jurisdiction over the particular remedy sought exclusively in another court. That is precisely the position here, and I say so for the following reasons. 9.It is essential to appreciate what the Applicant is truly seeking. While the application is framed under Order 22 Rule 35 of the Civil Procedure Rules, the examination of the director is not sought merely to ascertain the company's assets and liabilities in the ordinary sense. The ultimate object of the application is to render the director personally liable for the company's debt. That is, to hold him liable in his personal capacity for the obligations of the Respondent. The only mechanism by which a director of a company may be made personally liable for the debts of that company is through the lifting of the corporate veil. The examination of the director is, in this application, a step in service of that specific remedy. It is therefore the remedy of lifting the corporate veil, and not the oral examination alone, that is determinative of jurisdiction. 10.I hold the view that the jurisdiction to lift the corporate veil is not a general equitable remedy available to all courts of competent jurisdiction. It is a remedy specifically regulated by statute. The Companies Act, 2015 contains, in its interpretive provisions at section 2, a definition that is of critical significance: “the Court” means, unless some other court is specified, the High Court”. This definition runs throughout the entire Companies Act, including all provisions relating to the liability of directors and the circumstances in which the corporate veil may be lifted. The Act thereby vests jurisdiction over company law remedies including the lifting of the corporate veil and the personal liability of directors exclusively in the High Court. 11.The Small Claims Court, as a creature of statute with limited and specific jurisdiction, is not “the Court” within the meaning of the Companies Act, 2015. It has no jurisdiction to grant a remedy that Parliament has, by the express terms of that Act, reserved for the High Court. 12.I further hold the view that the distinction between the two types of examination contemplated under Order 22 Rule 35 must be kept clearly in view. Where a decree-holder seeks to orally examine an officer of a judgment-debtor company purely to trace the company's assets, that is, to establish what property or means the company has for satisfying the decree, that is an exercise in aid of execution that properly belongs before the court that issued the decree. The Small Claims Court is fully competent to conduct such an examination. However, where the examination is sought as a precursor to, or in direct pursuit of, an order lifting the corporate veil and rendering the director personally liable for the company's debts, the remedy sought transcends ordinary execution and enters the domain of company law. 13.The court conducting such an examination must have the jurisdiction not only to order the examination but also to grant the ultimate relief to which the examination is directed. If the court conducting the examination has no power to lift the corporate veil, as the Small Claims Court does not, the examination itself would be an exercise in futility. The decision in Vintage Liquor & Wine Limited (supra) is consistent with this analysis. 14.In the result, I find that this Court has jurisdiction to hear and determine the Applicant's application. The Preliminary Objection therefore fails on this ground. Conclusion and Disposition 15.For the foregoing reasons, the Preliminary Objection dated 15th January 2026 is dismissed with costs. The application dated 3rd October 2025 shall be heard on its merits. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026.F. MUGAMBIJUDGEDelivered in presence of:Ms Atieno for Maranga for DHOmondi for Kibet for JD/respondentCourt Assistants: Lillian & Gloria