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ELCPartially AllowedNotice of Motion dated 24th February 2016 (Decree of 18th May 2015)· [2018] KEELC 1772 (KLR)

Kenneth Karanja Kibathi t/a M/S Kibathi & Company Advocates v Equity Masters Limited [2018] KEELC 1772 (KLR)

Environment and Land Court
28 September 2018
1,524 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court protected an advocate's unpaid legal fees by barring the sale of a company's land, but refused to touch the directors' personal property without proof they were actually directors.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 24th February 2016 brought by Kenneth Karanja Kibathi, Advocate, under Order 22 Rule 35 of the Civil Procedure Rules and related provisions, seeking to execute a judgment of Kshs.424,687/60 obtained against Equity Masters Ltd on 18th May 2015. The Applicant sought an official search over two Ruiru parcels registered to the Respondent, a prohibiting order over them, the oral examination of three named Directors, and leave to attach the Directors' personal property. By consent of 13th October 2016, the Court ordered the Thika Land Registrar to issue an official search; the Registrar's replying affidavit confirmed both parcels were registered in Equity Masters Ltd's name, with leases registered in 2018 after an embargo, thereby mooting the search prayer and disproving the Respondent's assertion that the parcels had been sold to third parties. The Court found the decretal sum unsatisfied and, the parcels being the Respondent's only known assets, granted a prohibiting order against their sale until satisfaction of the decree. However, because the Applicant produced no Company Registry search proving that Albert Maina Githinji, Alex Kungu Maina and Francis Maina Ndegwa were the Respondent's current Directors, the Court declined to compel their oral examination and found no basis to lift the corporate veil or permit attachment of their personal property; those prayers were dismissed entirely. The Applicant received costs of the application. Judgment was delivered at Thika on 28th September 2018 by L. Gacheru, Judge.

Key legal issues

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01

Whether the prayer for an official search was still live

Holding

The prayer was overtaken by events because the Land Registrar had, pursuant to the consent order, produced the official search confirming registration of the suit parcels in the Respondent's name

Reasoning

The District Land Registrar, Thika, filed a replying affidavit attaching green cards showing Certificates of Lease in favour of Equity Masters Ltd issued on 2nd May 2018. The Court held the consent-ordered search had been satisfied, mooting the prayer for a search. Notably, the search contradicted the Respondent's Grounds of Opposition that the parcels had been sold to third parties.

p. 2
02

Whether a prohibiting order should issue over the suit parcels

Holding

Granted - the parcels, being the Respondent's only known assets, were prohibited from sale until the decretal sum of Kshs.424,687/60 was satisfied

Reasoning

The Court found a judgment for Kshs.424,687/60 was entered on 18th May 2015 and remains unsatisfied. The Respondent's claim that the properties were sold to third parties was disproved by the official search showing registration in the Respondent's name. As the parcels were the only known assets, prohibition was prudent to secure the decree.

p. 2
03

Whether the Directors could be compelled to attend for oral examination and have their property attached

Holding

Refused for want of evidence of directorship; the corporate veil issue fell away

Reasoning

The Applicant relied on bare allegation that the three named persons were Directors. No Company Registry search was exhibited. Without proof of current directorship there was no basis for oral examination, and consequently no basis to lift the corporate veil or permit attachment of their personal property. Those prayers were dismissed.

p. 2

Legal principles established

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  • A party seeking to compel named individuals to be orally examined as to a judgment debtor company's assets must first prove, by evidence such as a Company Registry search, that those individuals are directors of the company
  • The corporate veil cannot be lifted absent confirmation of the directorship of the persons sought to be made liable

Court orders

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  1. 1.A prohibiting order issued against the Respondent's land parcels Ruiru/Kiu Block 4/1689 and Ruiru/Kiu Block 4/1753, prohibiting their sale until the decretal sum is satisfied
  2. 2.Prayers Nos. 4 and 5 of the Notice of Motion dismissed entirely
  3. 3.Applicant awarded costs of the application
Jurisdiction invoked
Order 22 Rule 35 of the Civil Procedure Rules, Sections 1A, 1B, 3A, 63(a) of the Civil Procedure Act, Section 48(2) of the Advocates Act, Cap 16 and Rule 13A of the Advocates Remuneration Rules

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, "Kenneth Karanja Kibathi t/a M/S Kibathi & Company Advocates v Equity Masters Limited [2018] KEELC 1772 (KLR)", Case Analysis (2018). Notice of Motion dated 24th February 2016 (Decree of 18th May 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1772/eng@2018-09-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.