Legal Guides

Examination of a Judgment Debtor in Kenya: Assets, Directors and Order 22 Rule 35

Winning a money decree does not reveal where the judgment debtor keeps assets. A decree-holder may know that a company is trading yet be unable to identify its bank accounts, receivables, vehicles, land or other property available for execution. In that situation, examination under Order 22 rule 35 of the Civil Procedure Rules can compel focused disclosure. It is a discovery procedure: the court asks the debtor, a company officer or another relevant person to explain property and means of satisfying the decree and, where appropriate, to produce supporting records.

The procedure is powerful but limited. It is not a shortcut for making a director personally pay a company’s debt, nor a fishing exercise into every private transaction. A careful application connects an unsatisfied decree to specific unanswered questions, identifies the person likely to hold useful information and requests records proportionate to execution. The resulting evidence can then guide the correct next step, such as attachment, a garnishee application or a separate insolvency process.

What Order 22 rule 35 is designed to achieve

Order 22 rule 35 of the Civil Procedure Rules, 2010 applies where a decree is for payment of money. On the decree-holder’s application, the court may order the judgment debtor, an officer of a corporate debtor or another person to attend and be orally examined. The examination may address debts owed to the judgment debtor, property or other means of satisfying the decree. The court may also order production of relevant books or documents.

That wording makes the objective practical. The decree-holder is trying to locate executable assets or debts, not retry the dispute that produced the judgment. In Mwakima v Solfin Solutions Ltd [2026] KEHC 605, the High Court treated the examination as a discovery mechanism intended to ascertain the nature and location of assets and facilitate execution. The court permitted examination and document production while distinguishing those orders from a request to impose personal liability on directors.

Section 38 of the Civil Procedure Act provides the broader statutory basis for execution. The court may enforce a decree by the authorised methods, subject to applicable conditions and limitations. Examination assists in choosing and supporting a lawful method; it does not itself transfer property to the decree-holder.

Confirm that the decree is ready for execution

Before requesting disclosure, assemble the judgment, extracted decree, certificate of costs if relevant and every later order affecting enforcement. Prepare a ledger showing principal, interest, costs, payments and the exact unsatisfied balance. If the decree has been stayed, varied, set aside or fully paid, an examination application cannot properly be used to evade that result.

A pending appeal does not automatically stay execution, but a specific stay order does. The applicant should read its terms, expiry date and security conditions. Parties dealing with a contested appeal can consult the guide to a stay of execution pending appeal in Kenya. Where the judgment was entered in default, the debtor may separately pursue an application to set aside a default judgment; until the court grants effective interim relief, however, the existing decree remains the starting point.

Check the legal identity of the debtor. A company, partnership, sole proprietor, public body and individual are not interchangeable. Search current registry records where lawfully available and compare the decree with contracts, invoices and pleadings. Summoning the director of a similarly named company, or asking an employee of a parent company to explain a subsidiary’s assets, can waste time and create an unfair order.

Show why examination is needed

The supporting affidavit should explain the enforcement history rather than recite the rule. State what has been demanded, paid and attempted. Exhibit returned warrants, auctioneer correspondence, unsuccessful searches, admissions, corporate filings or reliable information indicating that the debtor trades or receives money but has not identified assets. A concise chronology helps the court distinguish a genuine discovery need from pressure or harassment.

Do not exaggerate inability to pay. A closed office, delayed response or disagreement over the balance does not by itself prove concealment. In Prafulbhai v ISS Global Forwarding (K) Ltd [2026] KEELRC 454, the court rejected an attempt to move against directors where the factual threshold for exceptional personal exposure had not been established. The decision reinforces the need to separate an application for information from allegations of fraud or abuse of corporate personality.

The affidavit should identify the unanswered questions. For example: Which bank receives customer payments? What trade debts are due in the next 90 days? Where are registered vehicles kept? Has the company sold a named asset after judgment? Which officer controls the fixed-asset register? Specific gaps support a proportionate order and later produce a usable record.

Who may be summoned

The judgment debtor may be examined directly. If the debtor is a company, the court may summon an officer capable of explaining its property and records. The most useful person is not always the longest-serving director. A finance director, company secretary, managing director or other officer may possess better knowledge of accounts, receivables and asset registers. The application should explain the person’s role and why attendance is likely to assist.

Order 22 rule 35 also refers to another person. That does not license indiscriminate summonses to customers, relatives or advisers. The applicant should provide a credible basis for believing the person knows of a debt owed to the judgment debtor or controls relevant property information. Professional privilege, confidentiality, data-protection obligations and third-party rights remain relevant. The court can tailor the order or require confidential handling of records.

Use current registry material to identify corporate officers and an address for service. Preserve the search date and source because appointments change. If the named officer has resigned, the court needs evidence about whether that person nevertheless held relevant knowledge during the period in question. An application against a former officer should be especially precise about the records and transactions sought.

Request records that answer execution questions

The document request should be targeted by subject and period. Depending on the debtor and evidence, useful records may include:

• current bank-account details and statements for an identified, reasonable period;
• audited accounts, management accounts and a current trial balance;
• fixed-asset, vehicle, equipment and land registers;
• aged debtor and creditor ledgers showing receivables and competing liabilities;
• contracts, invoices or payment certificates for named customers or projects;
• documents recording sale, transfer or security over a specific asset;
• insurance proceeds, deposits, rent or other sums due to the debtor; and
• board records that identify an asset transaction directly relevant to execution.

A demand for every bank statement, tax record, email and contract since incorporation may be oppressive and unhelpful. Define the judgment date, relevant transaction and asset category. Explain how each class may reveal a means of satisfying the decree. Where commercially sensitive material is involved, ask for filing under appropriate court directions rather than making unnecessary details public.

The order must be sufficiently clear to obey. It should identify who must attend, the date and place, the subject of examination, records to be produced and any deadlines for prior filing. Once issued, serve the sealed order in the manner directed and file reliable proof of service. A vague oral request or an emailed draft order is not a substitute for formal service.

Preparing for the oral examination

Build the questions from the decree and documents, not from suspicion. Start by confirming the witness’s identity, office, responsibilities and access to records. Then establish the debtor’s bank accounts, land, vehicles, equipment, receivables, securities, insurance claims and other valuable rights. Ask where each asset is located, in whose name it is held, whether it is charged or disputed, and what document verifies the answer.

Where a record shows an unusual transfer, identify the date, consideration, recipient, authority and present location of the proceeds. Avoid speeches about dishonesty. The purpose is to create accurate evidence from which the court and parties can decide the next execution step. If a witness lacks knowledge, establish who has it and where the source record is kept.

Reconcile oral answers with filed material. A receivables ledger should match contracts and bank records; a vehicle schedule can be compared with official registry information; a claim that an asset was sold should be supported by the sale agreement and payment trail. Note gaps requiring a further production direction, but do not transform the hearing into an unlimited audit.

Examination does not make directors judgment debtors

A company has a legal personality separate from its shareholders and directors. An officer may be compelled to provide information because the company cannot speak except through people, but that procedural role does not make the officer liable for the decree. In CJ Securities Ltd v SS Sehmi General Building & Civil Contractors Ltd [2026] KEHC 1497, the High Court ordered directors to attend and produce books while declining the prayer that would have made them personally responsible.

The Supreme Court made the boundary particularly clear in Ngoge t/a OP Ngoge & Associates Advocates v Ammu Investments Company Ltd [2025] KESC 34: examination under Order 22 rule 35 is for identifying the company’s assets and is not, without an independent legal basis, a route to single out a director for personal liability. A decree against the company must ordinarily be executed against company property.

Piercing the corporate veil is exceptional. It normally requires properly pleaded and proved grounds such as fraud, sham use of the company or other improper conduct recognised by law. The director must receive notice and an opportunity to answer the case. Suspicion arising during examination may justify legal advice, preservation steps or a separate application, but it does not automatically amend the decree.

This distinction also protects the decree-holder. An overreaching prayer can distract from legitimate discovery, cause delay and attract costs. Seek attendance and records first where that is the evidence-based need. If the evidence later supports a different remedy, frame that remedy on its own legal and factual foundation.

How an officer should respond

A director or officer served with an order should not ignore it. Read the order immediately, preserve the specified records and obtain the case documents. Confirm whether the company is the named judgment debtor, whether the witness remains an officer and which records are within the person’s custody or control. If the date, scope or service creates a genuine problem, seek directions promptly rather than simply failing to attend.

Prepare an accurate asset and liability picture as at the relevant dates. Do not destroy, backdate or selectively remove records. If an asset is charged, leased, co-owned, held on trust or already attached, produce the instrument proving that status. If no responsive record exists, explain the accounting system, retention policy and searches undertaken. A candid limitation is safer than an invented answer.

Separate company information from personal information. The officer can comply with disclosure about company assets while objecting, through proper procedure, to an unsupported demand for personal bank records or an attempt to execute against private property. Advice is particularly important where questions may expose alleged fraud, insolvency offences, contempt or conflicting confidentiality duties.

What follows after assets are identified

The examination does not complete execution. The decree-holder must select the lawful mechanism for the discovered asset. A known bank account or mature customer debt may support garnishee proceedings under Order 23. Movable goods may be attached through the authorised execution process, subject to exemptions and ownership. If a third party claims the goods, the distinct procedure for objecting to attachment in Kenya protects that claim.

Land, shares, intellectual property and secured assets each require their own searches, notices and court orders. A receivable that is disputed or conditional may not yield immediate payment. Insolvency proceedings should not be threatened merely as a substitute for ordinary execution where the debt is genuinely disputed or another process is more suitable.

Maintain a central execution ledger. Record the decree balance, interest, costs, every attached asset, payments and releases. Discovery of several assets does not permit double recovery. Notify the court of material payments and stop enforcement once the decree and lawful costs are satisfied.

Non-attendance and incomplete disclosure

If a properly served person fails to attend or disobeys a production order, the decree-holder should place proof of service and the precise non-compliance before the court and request an authorised, proportionate direction. The court controls its process. Do not assume that non-attendance automatically proves fraud, personal liability or ownership of a particular asset.

Where attendance occurs but answers are incomplete, identify the missing question and document on the record. Ask for a short deadline, a supplementary affidavit or reconvened examination if necessary. A focused compliance order is more enforceable than a general demand to “disclose everything.” Serious disobedience may have consequences, but procedural fairness, clarity of the original order and evidence of service remain central.

A practical file for the application

A well-organised file should contain the judgment and decree; costs and interest calculation; demand and payment history; execution attempts; current debtor and officer searches; affidavit explaining the information gap; draft summons or order; a limited document schedule; proof of service; produced records; examination notes or transcript; and the orders made after the hearing. Keep an index and chronology so that the court can trace each assertion to evidence.

Before filing, test the application with three questions: Is the decree presently enforceable? Is this person likely to possess information about the debtor’s assets or means? Will each requested document help identify an executable asset? If any answer is unclear, further investigation or narrower drafting may prevent an avoidable objection.

If a Kenyan money decree remains unpaid and the debtor’s assets are unclear, request a focused review of the decree, enforcement history, corporate records, proposed witness and document schedule. A Kenyan advocate can frame an Order 22 rule 35 application, conduct the examination and convert reliable disclosure into the appropriate execution process without improperly treating a company officer as the judgment debtor.