Wainaina & 2 others v Decon Enterprises Limited; Kamotho & another (Applicant) (Environment and Land Case 455 of 2017) [2025] KEELC 7379 (KLR)
The bottom line
#A Kenyan court confirmed that almost anyone with knowledge of a company's assets can be summoned and questioned to help recover a court-awarded debt.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion dated 27.02.2024 seeking oral examination of the named persons under Order 22 Rule 35 is merited
Key legal issues
#Whether persons other than officers of the judgment debtor company, including administrators of a deceased former director, may be summoned for examination under Order 22 Rule 35
Yes. Rule 35(c) permits summoning any person who can provide information as to the judgment debtor's debts, property or means of satisfying the decree; no direct connection with the case is required. The named persons were therefore properly liable to be summoned.
The court noted the rule's purpose is discovery of the judgment debtor's assets and means, and that sub-rule (c) extends the power to 'any other person'. Since the plaintiff holds an unsatisfied decree against a company that no longer operates and whose assets are insufficient, fairness favoured summoning the named persons to shed light on the company's assets and the deceased director's bank accounts. The separate legal personality of the company was not a bar because the examination is for discovery, not for condemning individuals to pay the company's debt.
Legal principles established
#- Under Order 22 Rule 35(c) any person may be summoned for oral examination as to debts owed to the judgment debtor or property and means of satisfying the decree; such person need not have a direct connection with the case.
- A company is a separate legal entity from its shareholders and directors, though the law allows lifting of the veil and personal liability of directors in appropriate circumstances.
Court orders
#- 1.The Notice of Motion dated 27/02/2024 is allowed as prayed
- 2.Mrs Eunice Wambui Kamotho, Ruiru Muchohi Gikonyo, Marianne Nyokabi Kamotho and Charles Githii Kamotho are to be summoned and cross-examined on the Judgment Debtor's assets and means of satisfying the decree
- 3.Each party to bear their own costs
- 4.The Directors to attend Court with the necessary documentation on 17/11/2025 for mention and further directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 22 Rule 35 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1 and 1A of the Civil Procedure Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Order 22 Rule 35 (c) states that the Court can summon any person meaning any person may be summoned under the rule, and such person need not have any or direct connection with the issues in the case whatsoever as urged by the Respondents. What needs to be satisfied is the threshold mentioned above.
From my own analysis of the circumstances of this case it is my considered view that justice will be served by allowing the Notice of Motion dated 27/02/2024, as prayed which I hereby do with costs to be borne by each party.
The Court directs that the Directors attend Court with the necessary documentation on 17/11/2025 for mention and further directions.
Issues in the judgment
#The court and case number are not stated on the face of the judgment; identification inferred from the delivery venue (Thika) and the judge's title.
The court's reasoning that the applicants were nonetheless entitled to summon the administrators sits uneasily with the authority it cites (Corporate Insurance v Savemax) to the effect that the veil is not lifted merely because a company cannot pay its debts; the tension is not resolved.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wainaina & 2 others v Decon Enterprises Limited; Kamotho & another (Applicant) (Environment and Land Case 455 of 2017) [2025] KEELC 7379 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7379/eng@2025-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.