Bollo International Fruits S.l & 2 others v Del Valle Limited & 1 other

(2) In default of the director complying with the above order, he be imprisoned and committed to civil jail for a period of not less than 6 months for the deliberate evasion of satisfying the Decree herein dated 23.2.2023. (3) THAT the costs of this application be borne by the Respondent/Judgment debtor. 2. The core grounds are that: (1) On 23.2.2023, judgment was entered in favour of the applicant as against the respondent for €213, 069.19, equivalent to Kshs. 27,638,400 together with interest and costs amounting to Kshs. 408,691.00. (2) the applicant extracted the decree and the certificate of costs and served them upon the respondent occasions. 2 on several

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(3) in the attempt to execute the decree, the applicant has not been able to trace any known assets of the respondent. (4) the director has been evasive despite making several promises to pay the decretal sum. (5) the applicant has reason to believe that there has been improper conduct on the part of the director, who may have received the decretal sum from the respondent and possibly appropriated the same for personal use, rather than fulfilling the court's order. 3. The applicant asserted that the court is vested with the discretion to lift the corporate veil and hold the said director of the respondent liable to settle the decretal sum. It also asserted that it is entitled to enjoy the fruits of its judgment and that it is in the interest of justice that the instant application be allowed as prayed. 3

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Analysis and Determination 4. The issue before the court is whether the applicant has made a case for the lifting of the respondent’s corporate veil and the director be held personally liable for the settlement of the decretal sum. 5. The record shows that the applicant filed a notice of motion dated 8.9.2023 seeking the cross-examination director, to of determine the subject whether the respondent possesses any property or means to satisfy the decree, as well as to compel the production of the company's books of accounts. 6. The application was allowed by this court on 8.2.2024. The matter was scheduled for cross examination of the director on the 25.9.2024. On 25.9.2024, the matter did not proceed for cross examination of the said director as the respondent's advocate 4

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sought more time. He stated that he had not yet been mapped. 7. The matter was rescheduled for hearing on 17.12.2024, however, the director failed to attend court for cross-examination. The court granted the applicant leave to apply for such orders as may be necessary. 8. The applicant application. then On filed the 12.5.2025, instant the court scheduled the examination of the directors on 23.9.2025. It further directed the directors to file the respondent’s accounts in 14 days. 9. On 23.9.2025, the respondent’s counsel indicated that the document was too bulky to be uploaded on the Judiciary’s case tracking system. 10. The court granted him 7 days to file and serve the documents and rescheduled the cross examination to 28.1.2026. 5

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11. On 28.1.2026, there was no appearance for the respondent or for the director. 12. The principles for consideration in determining whether to lift the corporate veil are well established. They have been elaborately discussed in Arun C. Sharma v Ashana Raikundalia & 5 others [2015] KEHC 5039 (KLR). 13. The corporate veil may be lifted not only where there is fraud or improper conduct, but also in “instances where the character of the company or the nature of the persons who control it is a relevant feature.” Arun case [supra] 14. Despite being opportunities to granted attend court numerous for oral examination regarding the respondent’s assets that could be used to settle the decretal sum and to produce the company’s accounts, the director failed to attend. 6

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15. On the basis of the material before the court as well as the record, I am satisfied that in this case, the nature of the persons who control the respondent is a relevant feature. Therefore, the applicant has laid down a credible basis for the lifting of the corporate veil and to hold the directors herein personally liable for the decree in issue. Disposal 16. Accordingly, the 25.2.2025 allowed is application in dated the following Veil of terms: (1) the Corporate Respondent/Judgment the Debtor company be and is hereby lifted. (2) Consequently, the director, GATTUSO KAMAU NGANGA, be and is hereby made personally liable and is ordered to pay the decretal sum in HCCCOMM No. E437 of 2022 7

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to the tune of Kshs. 27,638,400.00 together with costs of Kshs. 408,691 with interest thereof from 8.11.2022. (3) In default of complying with the above order, the said director be imprisoned and committed to civil jail for a period of not less than 6 months for the deliberate evasion of satisfying the Decree herein dated 23.2.2023. (4) However, given the nature of, order (3) is suspended for 30 days to allow any settlement between the parties. Once this period lapses, order (3) will take immediate effect without the necessity for applying. Dated, signed and delivered at Nairobi through Microsoft Teams 8

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online application this 14th day of May, 2026 ----------------------F. Gikonyo M Judge In the presence of: Ms. Kimathi for decree Holder Mwangi for Judgment debtor CA-Ivan/Aggrey 9

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