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ELCAllowedNotice of motion dated 24th January, 2025 (judgment delivered 20th December, 2023)· [2026] KEELC 1282 (KLR)

Wayaffe v Toner Holdings Limited & another (Environment and Land Case E112 of 2022) [2026] KEELC 1282 (KLR)

High Court of Kenya
5 March 2026
MCMBOGO C.G.
2,044 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ordered company directors to appear in court and explain why their company has not paid a Kshs.31.6 million judgment debt.

What this practically means

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Executive summary

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The decree holder moved the court by notice of motion dated 24th January, 2025 under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 22 Rule 35 and Order 51 Rule 1, seeking summons against Joseph Schwartman, Doron Oz and Samrat Ebenezer Merybel Jebamoni for oral examination on oath as to the judgment debtor's means and assets, production of the company's books, and costs. The decree arose from a judgment of 20th December, 2023 for Kshs.31,608,576/- with interest, which execution efforts had failed to satisfy: attached goods were worth only about Kshs.750,000/-, and a bank account was closed after a garnishee attempt. The judgment debtor opposed, contending that Schwartzman is not a director, that the directors are expatriates difficult to coordinate, that a new account was opened innocently, and that the application was premature and res judicata given a ruling of 16th September, 2024. Mbogo, J framed two issues: res judicata and entitlement to the prayers. On the first, the court held the application was not res judicata because it sought examination of the company's means, distinct from the earlier prayer to lift the corporate veil and impose personal liability; the point was also effectively abandoned in submissions. On the second, the court applied Order 22 Rule 35 and Post Bank Credit Limited v Nyamangu Holdings Limited, holding that officers of a corporation may be summoned for examination where a money decree is unsatisfied. The motion was allowed: summons to issue for examination on 22nd April, 2026, production of the company's books, warrants of arrest in default, and costs to the decree holder.

Key legal issues

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01

Whether the application is res judicata

Holding

The application is not res judicata; the present request for examination of directors on the company's means is distinct from the earlier application seeking to lift the corporate veil and impose personal liability.

Reasoning

The earlier ruling of 16th September, 2024 arose from a notice of motion dated 25th April, 2024 whose key prayer sought lifting of the corporate veil and personal liability of directors for the decretal sum. The present application instead seeks oral examination of named officers and production of the company's books under Order 22 Rule 35 to establish why the decretal sum has not been paid. The issues being separate and distinct, Section 7 of the Civil Procedure Act does not bar the application. The judgment debtor also effectively abandoned the argument in its written submissions.

p. 3
02

Whether the decree holder is entitled to examination of the named persons under Order 22 Rule 35

Holding

Yes. The named persons are listed as directors/shareholders on the company registry records, and the judgment debtor must demonstrate through its books why the decretal sums remain unpaid.

Reasoning

Order 22 Rule 35 empowers the court to order attendance and oral examination of a corporation's officers and production of books where a money decree remains unsatisfied. Company registry records as at 20th May, 2024 list Joseph Schwartzman and Doron Oz as directors/shareholders, and no recent records contradicted this. Claims that the directors are expatriates were unsupported by evidence. Following Post Bank Credit Limited v Nyamangu Holdings Limited, examination under Order 22 Rule 35 is a lawful, less drastic step than lifting the corporate veil, and its fruits could later support such lifting.

p. 4

Legal principles established

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  • Where a decree is for the payment of money, the court may order oral examination of a corporation's officers and production of the company's books to ascertain its means of satisfying the decree under Order 22 Rule 35.
  • Res judicata does not arise where the issue in the later application is separate and distinct from that determined in the earlier application.

Court orders

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  1. 1.The deputy registrar to issue summons to Joseph Schwartman, Doron Oz and Samrat Ebenezer Merybel Jebamoni to appear in court on 22nd April, 2026 at 2.30 p.m. for examination as to the judgment debtor's means and assets.
  2. 2.The said directors to produce the judgment debtor's books, papers, documents and/or evidence showing the affairs of the company.
  3. 3.In default of orders (i) and (ii), warrants of arrest to issue.
  4. 4.The decree holder awarded the costs of the application, to be borne by the judgment debtor.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 7 (Cap 21), 94
  • Civil Procedure RulesOrder 22 Rule 35; Order 23 Rules 1(2)&(3); Order 1 Rule 10(2); Order 50; Order 51 Rule 1
  • Constitution of KenyaArticles 159, 159(2)(a) & (d)

Cases cited (1)

  • Post Bank Credit Limited (In Liquidation) v Nyamangu Holdings Limited
    [2015] KEHC 5964 (KLR)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Order 22 Rule 35 and Order 51 Rule 1 of the Civil Procedure Rules, Article 159 of the Constitution

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, "Wayaffe v Toner Holdings Limited & another (Environment and Land Case E112 of 2022) [2026] KEELC 1282 (KLR)", Case Analysis (2026). Notice of motion dated 24th January, 2025 (judgment delivered 20th December, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1282/eng@2026-03-05

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