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ELCAllowedNot stated in the judgment

Wainaina & 2 others v Decon Enterprises Limited; Kamotho & another (Applicant) (Environment and Land Case 455 of 2017) [2025] KEELC 7379 (KLR)

High Court of Kenya (sitting at Thika)
29 October 2025
2,364 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, a decree-holder against Decon Enterprises Limited, moved the court by Notice of Motion dated 27.02.2024 under Order 22 Rule 35 and Order 51 Rule 1 of the Civil Procedure Rules seeking the oral examination of four persons - Mrs Eunice Wambui Kamotho, Ruiru Muchohi Gikonyo, Marianne Nyokabi Kamotho and Charles Githii Kamotho - said to be directors of the judgment debtor and administrators of the estate of John Joseph Kamotho, a former director, regarding the company's ability to settle the unsatisfied decree. The 1st respondent opposed, arguing the application misused Order 22 Rule 35 by targeting persons who are not officers of the company; that the company has a separate legal personality; that administration of the deceased's estate had concluded, leaving the administrators functus officio; and that the corporate veil had not been lifted. The court reviewed Order 22 Rule 35 and authorities including Ultimate Laboratories v Tasha Bio Service, Tropical Wood Limited, Corporate Insurance v Savemax, Salomon v Salomon and Masefield Trading. It held that under Rule 35(c) 'any person' may be summoned for examination as to the judgment debtor's debts, property and means, without needing a direct connection to the case. Given the unsatisfied decree and the respondent's own indication that one surviving director exists, the court allowed the motion, directing the four named persons to attend for cross-examination with documentation on 17/11/2025, with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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

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01

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

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 27/02/2024 is allowed as prayed
  2. 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. 3.Each party to bear their own costs
  4. 4.The Directors to attend Court with the necessary documentation on 17/11/2025 for mention and further directions

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.
p. 5Scope of oral examination under Order 22 Rule 35(c)
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.
p. 5Disposition
The Court directs that the Directors attend Court with the necessary documentation on 17/11/2025 for mention and further directions.
p. 5Final orders

Issues in the judgment

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minor

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.

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.