Njogu v Deekem Petroleum & Industrial Chemical Limited (Cause 1786 of 2017) [2025] KEELRC 386 (KLR)
The bottom line
#A Kenyan court refused to reopen a company's default judgment and ordered its directors personally examined over an unpaid Kshs. 425,000 decree.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte judgment should be set aside and the Respondent granted leave to file its defence out of time
Dismissed; service was proved by affidavits of service on a director, and the Respondent's delay of over two years was inordinate and unexplained
The record contained an affidavit of service by process server Peter Ngeno showing summons served on Mrs. Jane Muthoni Gacheru, a director, plus multiple mention and hearing notices served on the directors. The Respondent did not seek to cross-examine the process servers and could not explain when or how it became aware of the proceedings. Applying Mbogo v Shah, the discretion to set aside is not meant to assist a party who has deliberately evaded service. The delay of 2 years and 3 months since judgment was highly inordinate.
Whether the corporate veil of the Respondent should be lifted and the directors examined as to the company's assets and finances
The veil was lifted to the extent of ordering personal examination of the three directors as to the company's assets and finances, in aid of execution
The decree of Kshs. 425,000/= remained unsatisfied close to three years after judgment. Auctioneers instructed to execute could not trace the company's premises although it continued operating, which the court accepted as use of the corporate veil to evade obligations. Relying on Jepkemoi v Zaburi Enterprises and Salomon v Salomon, the court held the veil may be pierced where justice demands, and found it in the interest of justice and fairness to lift it and order examination of the directors.
Legal principles established
#- The court has unlimited discretion to set aside an ex parte judgment on just terms, but that discretion is not designed to assist a party who has deliberately obstructed or delayed the cause of justice
- The corporate veil may be pierced where directors use the company in bad faith or fraudulently to shield themselves from execution of a decree
Court orders
#- 1.The Respondent's motion dated 30th September, 2024 seeking to set aside the ex parte judgment is dismissed with costs to the Claimant
- 2.Mrs. Jane Muthoni Gacheru, Sophia Wangu Kamau and Duncan Kiruai Mwai, being the Directors of Deekem Petroleum and Industrial Chemicals Limited, the Judgment Debtor, be personally examined as to the assets and finances of Deekem Petroleum and Industrial Chemicals Limited
- 3.Examination of the Respondent's directors fixed for 18/3/2025
- Jurisdiction invoked
- First-instance civil claim; discretionary execution and review powers under the Civil Procedure Act and Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njogu v Deekem Petroleum & Industrial Chemical Limited (Cause 1786 of 2017) [2025] KEELRC 386 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/386/eng@2025-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.