REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC SUIT NO. 532 OF 2010 TWIN PROPERTIES INVESTMENT LIMITED ………... PLAINTIFF VERSUS KASARANI SETTLEMENT LIMITED ……….…….. 1ST DEFENDANT GLADYS AUMA ODHIAMBO …………….…………. 2ND DEFENDANT NORBERT ODUOR ………………………….………….. 3RD DEFENDANT RULING 1. Judgement was entered in favour of the 1st and 2nd Defendant’s on 8th December, 2022. A Decree was subsequently issued and costs taxed on 29 th November 2023. ELC SUIT NO. 532 OF 2010 Page 1 of 9 Ruling
page 1 of 9
The 1st Defendant/Decree Holder then filed an application for execution of the Decree, dated 4th November 2025 and a Notice to Show Cause was issued thereafter. 2. In response, the Plaintiff filed a Preliminary Objection dated 16th February 2026, contending that a Notice to Show Cause for committal to civil jail cannot be taken out against a company. 3. The Preliminary Objection was canvassed by way of written submissions. Submissions 4. The Plaintiff submits that an order for committal to civil jail may only be made and passed against a natural person/human being, pursuant to Sections 38, 40, 41, 42 and 43 of the Civil Procedure Act as it is only a human being /natural person that may be arrested. Further, that it is established in Salomon v Salomon & company Limited [1987]AC 22, that a company is a separate juristic person ELC SUIT NO. 532 OF 2010 Page 2 of 9 Ruling
page 2 of 9
thus the veil of incorporation ought to be lifted with respect to the judgement debtor. 5. On their part, the 1st and 2nd Defendants submit the Notice to Show Cause was not intended to arrest the Plaintiff but to require attendance of its officers, including directors/heads of department who are responsible for facilitating any Court Orders/Decrees against it and explain its means and ability to satisfy the Decree. 6. They also submit that the preliminary objection is premature because the Court is yet to determine the consequences of nonpayment. Further, that it does not meet the threshold in Mukisa Biscuits Manufacturing co Ltd v West End Distributors Ltd [1969] EA and in any case, the Court has discretion to lift the corporate veil. ELC SUIT NO. 532 OF 2010 Page 3 of 9 Ruling
page 3 of 9
7. To buttress their averments, the 1 st and 2nd Defendants relied on the following decisions: East Africa Limited v Kyanzazi Farmers Company Limited [2016] KECA 763 (KLR) and Mohamed v Nothwood Development Company Limited & 2 others [2015] KEHC 15055 (KLR). Analysis and Determination 8. I have considered the instant Preliminary Objection including the submissions and the only issue for determination is whether the said Preliminary Objection is merited. 9. It is well settled that a Preliminary Objection must be on a pure point of law. In Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, it was stated that: “So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary ELC SUIT NO. 532 OF 2010 Page 4 of 9 Ruling
page 4 of 9
point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”. 10. The Supreme Court reiterated this principle in the case of Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others [2015] eKLR where it stated that: “Thus a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.” 11. The Plaintiff’s Preliminary Objection is premised on grounds that the Notice to Show Cause herein, for committal to Civil jail is issued against it, instead of a natural human being. ELC SUIT NO. 532 OF 2010 Page 5 of 9 Ruling
page 5 of 9
12. The Plaintiff as a judgement debtor is yet to settle the decretal sum and has engaged in filing of applications. Further, the Court is yet to determine whether the Plaintiff is to be committed to civil jail. The Plaintiff appears to be jumping the gun. Examination of a judgment debtor as to its means is governed by Order 22 Rule 35 of the Civil Procedure Rules, which provides that: Where a decree is for the payment of money the decree-holder may apply to the court for an order that — (a) The judgment-debtor; (b) In the case of a corporation, any officer thereof; or (c) Any other person, be orally examined as to whether any and, if so, what debts are owing to the judgment-debtor and whether the judgment-debtor has any and, if so, what other property or means of satisfying ELC SUIT NO. 532 OF 2010 Page 6 of 9 Ruling
page 6 of 9
the decree; and the court may make an order for the attendance and examination of such person, and for the production of any books or document. 13. As per the above provisions, where a judgment debtor is a corporation, the Rules are clear that it speaks only through its officers. This is the position the 1 st and 2nd Defendants advanced in their submissions. This position was espoused in Post Bank Credit Limited (In Liquidation) v Nyamangu Holdings Limited [2015] KEHC 5964 (KLR) where the Court rendered itself thus: “…person to be summoned under Order 22 Rule 35 (c) of the Civil Procedure Rules, to provide information on the property of the Company…will also be required to produce any relevant documents or copies thereof on the assets of the Company or books of accounts including but not limited to the Judgment Debtor’s annual financial statement, documents of title, property of the Company in his possession…” ELC SUIT NO. 532 OF 2010 Page 7 of 9 Ruling
page 7 of 9
14. Further, Section 38 of the Civil Procedure Act, relied on by the Plaintiff to argue that a company cannot be committed to civil jail gives the Court jurisdiction to order execution of a Decree, including by detention in prison, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison. However, the Plaintiff/Judgement debtor herein is yet to show cause. 15. From the Court record noting that the Plaintiff is not a natural person but a corporation, I opine that it can only be summoned through its officials. I note the Notice of Show Cause being objected to, is titled ‘Notice to Show Cause why execution should not issue’. In my view, instead of the Plaintiff engaging in interlocutory applications, it should inform the Court on how it intends to settle the decretal sum. I hence find that an official of the Company should come to Court to show cause why he/she should not be committed to civil jail for failure to settle the decretal sum. ELC SUIT NO. 532 OF 2010 Page 8 of 9 Ruling
page 8 of 9
16. In the foregoing, I find the Preliminary Objection premature and will strike it out. DATED SIGNED AND DELIVERED AT NAIROBI THIS 1ST DAY OF OCTOBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Echesa for Judgment Debtor Nechesa for Applicant Court Assistant: Joan ELC SUIT NO. 532 OF 2010 Page 9 of 9 Ruling
page 9 of 9