Kioko Musyoki & Another v Kibe Muigai Holdings Limited

a) That this application be certified as urgent and placed before the duty Judge for hearing on priority basis. b) That this Honourable Court be pleased to issue summons through the office of the Advocates compelling the known directors of the Judgment Debtor being KIBE MUIGAI nd NATHANIEL MATALANGA to attend court on such a date as may be ordered or allocated, to be orally examined on oath as to the Judgment Debtors means and assets. c) That the said directors be ordered to produce the Respondents books of accounts, papers, documents and/or evidence showing the location of the assets and the affairs of the company. d) That in providing default of suitable such means attendance and and/or assets the satisfaction of the Decree, the Honourable Court do lift the corporate veil of the company and order the said directors to jointly and/or severally RULING IN ELRC CAUSE NO. 1623 OF 2015. 2

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held personally liable to satisfy the decree of this court in full. e) That the warrants of attachment and sale of assets of the Directors and Shareholders of the Respondent, namely, KIBE MUIGAI and NATHANIEL MATALANGA do issues in execution of the Decrees herein. f) That the Honourable Court do grant any other orders it may deem fit to grant. g) That the costs of this application be borne by the Respondent and/or its directors in any event. 2. The Respondent’s directors Mr. Nathaniel Matalanga filed a Replying Affidavit sworn on 16th October 2025 and a Preliminary Objection dated 15th October 2025, to oppose the motion. The objection raised the following grounds:a) That the Employment and Labour Relations Court (ELRC) lacks jurisdiction to entertain matters relating to the lifting of the corporate veil, as such matters are commercial in nature, falling RULING IN ELRC CAUSE NO. 1623 OF 2015. 3

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squarely under the jurisdiction of the High Court (Commercial Division) b) That there is no judgment or decree against Nathaniel Omwolo Matalanga. The decree dated 17th May 2019 is solely against the Respondent, therefore, execution by warrants of attachment under prayer 5 of the Application is incompetent and unlawful against non-parties who are not judgment debtors. c) That order 22 Rule 35 of the Civil Procedure Rules, 2010 only allows for the examination of an officer of a corporation and production of its records, not the issuance of warrants of attachment against an officer’s personal assets. d) That the Application is otherwise misconceived , unfounded, has no merit and is an abuse of the due process of this Honourable Court. 3. Both the motion and the objection were prosecuted together by way of written submissions. The Claimants submissions RULING IN ELRC CAUSE NO. 1623 OF 2015. 4

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are dated 6th February 2026 while Mr. Matalanga’s submission are dated 6th March 2026. Submissions 4. The Claimant submitted that there is a decree of the court in force against the Respondent and it has failed to settle it; that attempts to execute the decree by attachment and sale of Respondent’s assets have failed since their whereabouts of the unknown; that the company still has one director in office who should be summoned by the court to attend court for examination on assets of the company and how to settle the decretal sum; and that if the director fails to comply, the corporate veil of the Respondent be lifted and the director/shareholders be held personally liable to settle the decree. 5. The Claimant’s submitted that this court jurisdiction to grant the orders sought including lifting of the corporate veil by dint of Section 34 of the Civil Procedure Act and Order 222 Rule 6 of the Civil Procedure Rules for emphasis they cited three precedents including the case of Justine Nyambu -v- RULING IN ELRC CAUSE NO. 1623 OF 2015. 5

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Jaspa Logistics [2017] KEELRC 1877 (KLR) where the court dealt with a similar application. 6. Mr. Matalanga, on the other hand confirmed that the Respondent had himself and Mr. Robert Kibe Mungai as the only Director. He confirmed further that Mr. Mungai was the main share holder with 99% shares while the remaining one percent was held by him in trust for Mr. Mungai. He contended that he was never a beneficial owner of the Respondent due to the said status of a nominee shareholder. 7. He contended that the late Mungai had the custody and control of all the assets and records of the company including books of account and he (Matalanga) was not privy to the same. He urged the court not to summon him for examination since he does not have any discoverable knowledge of the means or assets of the Respondent that can be applied to settle the decretal sum. In view of the foregoing reason he submitted that the Applicant has not met the threshold set out under order 22 Rule 35 of the Civil Procedure Rules to warrant summoning him to court for examination. RULING IN ELRC CAUSE NO. 1623 OF 2015. 6

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8. As regards the lifting of the Respondents corporate veil, Mr. Matalanga submitted that the court has no jurisdiction since such power belongs to the High Court. He further submitted that it is premature to seek lifting of the corporate veil simultaneously with the issuance of summons for oral examination. 9. He submitted that lifting of the veil can only be done after oral examination of the company officers and production of books of account. For emphasis, he placed reliance on Justine Nyambu –v- Jaspa Logistics Supra and Africa Energy Development Corporation v. Chevron Africa Ltd [2025] KEH 11383 (KLR) where this court and the High Court were in agreement that lifting of the corporate veil comes at the tail-end after meeting the necessary legal thresholds including that no other method of settling the decree is available. Issues for determination 10. Having considered the motion, affidavits, the objection and submissions by the two sides, there is no dispute that there RULING IN ELRC CAUSE NO. 1623 OF 2015. 7

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is a money decree of the court that the Respondent has failed to settle since 17th May 2019. There is also no dispute that only one shareholder/director of the Respondent company is in office after the demise of the controlling shareholder/director. The issues for determination are:a) Whether the court lacks jurisdiction to entertain the Claimants motion? b) Whether motion should be allowed? Jurisdiction 11. Mr. Matalanga submitted that the court lacks jurisdiction to grant the orders sought and especially lifting of corporate veil of the Respondent. However the Claimants maintained that the court has jurisdiction under Section 34 of the Civil Procedure Act and Order 22 Rule 6 of the Civil Procedure rules. 12. Both Section 34 and 22 Rule 6 are applicable to this court since the rules of procedure of this court provides that the decrees and orders of the court shall be executed in accordance with the Civil Procedure Rules. 13. Section 34(1) provides that:RULING IN ELRC CAUSE NO. 1623 OF 2015. 8

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“ All questions arising between parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.” 14. Order 22 Rule 6 then provides that:“ Where the holder of a decree desires to execute it, he shall apply to the court which passed the decree, or if the decree has been sent under the provisions herein before contained to another court, then such court or to the proper officer thereof….” 15. The motion before this court is about execution of a decree passed by the court and therefore I find that the court is clothed with the necessary jurisdiction to entertain the motion. Merits of the motion 16. The Claimant prays that the directors/officers of the Respondent be summoned to appear in court for examination RULING IN ELRC CAUSE NO. 1623 OF 2015. 9

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on the Respondents assets and indicate how the company intends to settle the decree. However the only existing director/shareholder of the company contended that he was a mere nominee shareholder with no access to the company’s assets and information that warrants his examination before the court. 17. Order 22 Rule 35 of the Civil Procedure Rules provides that:“When a decree is for payment of money, the decree holder may apply to the court for an order that:a) the judgment debtor b) in case of a corporate, any officer thereof; or c) any other person, be orally examined as to whether any or what debts are owing to the judgment-debtor, and whether the judgment-debtor has any and what property or means of satisfying the decree, and the court may make an order for attendance and examination of such judgment-debtor or officer or other person and for the production of books or documents.” RULING IN ELRC CAUSE NO. 1623 OF 2015. 10

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18. As already noted herein above, there is a decree in force against the Respondent which remains outstanding. The Claimants have not succeeded in tracing the Assets of the company for attachment and sale in execution of the decree. The company has not been wound up and there is still one director of the company in existence. 19. The director, Mr. Matalanga contends that he has no information to offer to the court because he did not have access to the assets and information of the company including books of accounts. However, he was able to produce some records of the company including memorandum of agreement nominating him as a holder of one share in trust, letter from Equity Bank to Kibe Mungai about loan to the Respondent, and a Death Certificate for the deceased director. 20. Having carefully considered the law and the material before the court, I find that the orders sought by the Claimants are anchored well in order 22 Rule 35 of the Civil Procedure Rules. Therefore I grant the order summoning the existing director, Mr. Nathaniel Matalanga, to attend court for examination on the Respondents assets and how the company intend to settle RULING IN ELRC CAUSE NO. 1623 OF 2015. 11

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the decretal sum. 21. However as regards the lifting of the corporate veil, I repeat my decision in the case of Justine Nyambu –v- Jaspa Logistics cited by both sides that such orders must await the oral examination of the officers of the company to see whether the legal threshold for lifting the veil will be met. 22. In conclusions, I allow notice of motion dated 21 st June 2024 in the following terms:a) Summons be and is hereby issued to Mr. Nathaniel Matalanga to attend court on 13/10/2026 for oral examination on oath as to the Respondent/Judgmentdebtor’s means and assets. b) That Mr. Nathaniel Matalanga be and is hereby ordered to produce in court the Respondent/Judgment-debtor’s books of accounts, papers, documents/or evidence showing the location of the assets, and the affairs of the company. c) The rest of the orders sought in the motion shall await the outcome of the events ordered in (a) and (b) above. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN RULING IN ELRC CAUSE NO. 1623 OF 2015. 12

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COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: Anjili for Claimant Vinya for Respondent RULING IN ELRC CAUSE NO. 1623 OF 2015. 13

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