Kamau v Amolo t/a Victoria Phantom Spares & another

deny the decree-holder the fruits of his judgment, and urges that the application be dismissed with costs. 3. The Objector/Applicant, in its Further Affidavit, reiterates that the Respondent, David Odhiambo Amolo was neither its director nor authorised representative and that his dealings with the Claimant do not establish ownership or a proprietary interest in the proclaimed property. It contends that the documents relied upon by the 1st Respondent, including the bounced cheque, communications and settlement agreement, do not demonstrate that the specific attached properties belonged to the 2nd Respondent. The Applicant maintains that it conducts its own business and payment transactions independently, and that any personal dealings between the Respondents cannot create liability against it or render its property available for execution. It therefore maintains that the objection is solely to protect property belonging to a separate legal entity that was not a party to the original proceedings, denies any intention to delay execution, and reiterates that the proclamation and attachment should be lifted. 4. The matter proceeded to hearing viva voce on the 17 th day of August 2026, with the respective deponents adopting their affidavits on record and being cross-examined thereon. The Objector/Applicant’s director, Veronica Auma Were, testified in support of the objection and maintained that David Odhiambo Amolo was not a director or authorised representative of the company, and that the proclaimed property belonged to the Applicant. The 1st Respondent, Stephen Ng’ang’a Kamau, testified in opposition and maintained that his dealings were with David Odhiambo Amolo, whom he understood to be acting for Victoria Phantom Spares, and relied on the transactions, cheque and subsequent dealings giving rise to the judgment. The witnesses were cross-examined on the nature of their respective dealings, David’s relationship with the Applicant, the ownership of the proclaimed goods and the circumstances leading to the execution, after which the matter was reserved for ruling on 2nd September 2026 with leave granted to parties to file submissions. Counsel for the objector and 2 nd Respondent have filed submissions which I have read and considered. 5. The central question for determination is whether the Objector has demonstrated a legal or equitable interest in the properties proclaimed in execution of the decree against the 2nd Respondent. The burden initially rests upon the Objector to demonstrate such interest. In the present matter, it is not disputed that the decree was entered against the 2nd Respondent, David Odhiambo Amolo t/a Victoria Phantom Spares, and not against the Objector, Victoria Phantom Spares Limited. The Objector has produced evidence demonstrating its incorporation as a separate limited liability company Ruling SCCOMM E029 OF 2026 Hon. A.Z Ogange-R.M pg. 2

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and its director has maintained that the 2nd Respondent was neither a director nor an authorised representative of the company. More significantly, the evidence of the 1st Respondent itself indicates that the transactions giving rise to the decree involved goods supplied to the Objector's business and that the 2nd Respondent dealt with the 1st Respondent in connection with that business. The fact that the 2nd Respondent may have transacted with the 1st Respondent on behalf of the Objector, or even issued a cheque in the Objector's name, may be relevant to the relationship between the parties, but does not establish that the assets of the Objector belonged beneficially to the 2nd Respondent. 6. The principle of separate legal personality is particularly material at the execution stage. It is trite that even where a person may have been privy to the underlying transaction, if judgment has not been entered against that person, the decree cannot simply be executed against him or her. Execution proceedings cannot be used to impose liability upon a person who was not a judgment debtor and against whom no decree exists. 7. The 1st Respondent has urged the Court to find that the objection is an attempt to defeat execution. The Court is alive to the principle that an objector cannot rely upon a separate legal personality or an ostensible transfer of assets where the evidence demonstrates that property belonging to the judgment debtor was transferred, concealed or held through another person or entity for the purpose of defeating execution. This principle is illustrated by cases such as Obadha v Omoro [2022] KEHC 332 (KLR), where evidence was tendered that motor vehicles previously owned by the judgment debtor had been transferred to his wife in circumstances pointing to an attempt to defeat execution. 8. The distinction, however, is that the present record does not establish any specific transfer of the proclaimed goods from the 2nd Respondent to the Objector after judgment or proclamation, nor has the 1st Respondent demonstrated, item by item, that the proclaimed properties were previously owned by the 2nd Respondent and were thereafter placed in the Objector's name or possession to defeat execution. An allegation of collusion, without evidence demonstrating the alleged transfer, concealment or beneficial ownership of the judgment debtor, cannot by itself displace the Objector's proprietary claim. The Court must determine the objection on the evidence relating to the particular property proclaimed and not merely on the relationship between the persons involved. 9. Against that evidential background, I find that the question is not merely whether ownership of the proclaimed goods has been proved, but whether the goods belong to the person against whom the decree was Ruling SCCOMM E029 OF 2026 Hon. A.Z Ogange-R.M pg. 3

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issued. As stated in paragraph 8 above, there is no evidence of any transfer of the proclaimed goods from the 2nd Respondent to the Objector, nor any evidence that the goods were placed in the Objector's name or possession to defeat execution. The Court must therefore determine the objection on the evidence relating to the particular goods and the legal identity of their owner. 10. The evidence establishes that the proclaimed goods belong to the Objector company. A company is a legal person separate and distinct from its directors and shareholders. Accordingly, the fact that the 2nd Respondent is associated with, or exercises control over, the Objector does not make the company's property his personal property or render it available for execution of a decree issued against him. To hold otherwise and as rightly submitted by Counsel for the Applicant, would effectively disregard the company's separate legal personality merely on the basis of the relationship between the parties. 11. I am, however, alive to the divergent judicial approaches on whether a court exercising jurisdiction in objection proceedings may pierce the corporate veil. One school of thought recognises that, where the evidence demonstrates that the company is merely an alter ego or mask of the judgment debtor, and the interests of justice so demand, the corporate veil may in an appropriate case be lifted. Another line of authority adopts a more restrained approach, holding that separate corporate personality should only be departed from in exceptional circumstances and upon cogent evidence justifying such departure. 12. In the present case, it is unnecessary to conclusively resolve that broader jurisdictional question. Even assuming that this Court possesses the power, in an appropriate case, to pierce the corporate veil, paragraph 8 above is decisive. The 1st Respondent has not demonstrated any transfer, concealment, collusion or other arrangement by which the 2nd Respondent placed his property in the Objector's name or possession for the purpose of defeating execution. The mere fact that the 2nd Respondent is a director, shareholder or otherwise associated with the Objector is insufficient. There is therefore no evidential or legal basis, on the facts before this Court, to disregard the Objector's separate corporate personality. 13. I accordingly find that the proclaimed goods, being property belonging to a legal person distinct from the judgment debtor, are not liable to attachment in execution of the decree against the 2nd Respondent. The objection therefore succeeds and the attachment is lifted. Ruling SCCOMM E029 OF 2026 Hon. A.Z Ogange-R.M pg. 4

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14. The application is therefore allowed in terms of prayers 5, 6 and 7 of the Application. The Applicant having successfully prosecuted its application shall have costs of the Application assessed at Kshs. 5,000/= RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT MALABA SMALL CLAIMS COURT THIS 2ND DAY OF SEPTEMBER 2026. In the Presence of N/A for the Claimant/1st Respondent N/A for the 2nd Respondent Mr. Wagomba for the Objector/Applicant Court Assistant: Paul Otieno A.Z. OGANGE RESIDENT MAGISTRATE/ADJUDICATOR 02.09.2026 Ruling SCCOMM E029 OF 2026 Hon. A.Z Ogange-R.M pg. 5

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