PM Ndungu & Company Advocates v Githina & another [2022] KEHC 10290 (KLR)

PM Ndungu & Company Advocates v Githina & another (Miscellaneous Cause 122 of 2019) [2022] KEHC 10290 (KLR) (Family) (18 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10290 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Miscellaneous Cause 122 of 2019

AO Muchelule, J

July 18, 2022

Between

PM Ndungu & Company Advocates

Applicant

and

Sabina Nyambura Githina

Respondent

and

Gathimi General Store Limited

Objector

Ruling

1. The applicant P.M. Ndungu & Co. Advocates rendered legal services to the respondent Sabina Nyambura Githina between 2015 and 2019 in High Court Succession Cause No. 2248 of 2015: In the Matter of the Estate of Charles Githina Mwangi. The applicant raised a fee note of Kshs.1,335,386/=. When it was disputed, the matter was heard by the taxing officer who taxed it at Kshs.1,104,968/56. A certificate of costs was issued on June 22, 2021. The applicant sought to execute to recover the amount. He instructed Fantasy Auctioneers who attached certain goods which the objector Gathimi General Store Limited claim to belong to it and not to the respondent.

2. In the affidavit sworn by Kenneth Mwangi Githina, a director of this limited liability company, it was stated that although the respondent is a co-director in the company, the attached goods belong to the company and not to her. He objected to the attachment as his case was that the company was not party to the dispute on legal fees between the applicant and the respondent. He filed invoices and delivery notes to show that the attached goods belonged to the company.

3. The replying affidavit by Patricia Muthoni Ndungu was filed to oppose the notice of motion dated March 29, 2022by the objector. Her case was that both the respondent and the objector were beneficiaries of the estate of the deceased; that the deceased had shares in the objector company, that the applicant and Kenneth Mwangi Githina were the only two shareholders of the company; and that the applicant, being the administrator of the estate of Charles Githina Mwangi, had a legal interest in the objecting company. She denied the claim by the objector that it has indivisible and absolute interest in the attached goods. She stated that the entire of the deceased’s estate had been put in three limited liability companies upon the confirmation of grant, and that if the application is allowed the applicant will be left with no way of recovering its legal fees.

4. There appears to be no dispute that the attached goods belong to the objector. Documentary evidence attached to its application was not challenged. It follows that the objector has shown evidence of his interest in, and claim to, the attached goods, and therefore the objection is valid and legitimate (Chotabhai M. Patel –v- Chaprabhi Patel [1958] EA 743; Electrowatts Limited –v- Countryside Suppliers Limited &another, Mary W. Kamau(Objector) [2021] eKLR).

5. The respondent and Kenneth Mwangi Githina may be the only shareholders and directors of the objector company, but it is basic that a registered limited liability company is a legal person separate from its shareholders or directors. Where there is evidence that the property being attached belongs to the company, the same cannot be available for attachment to recover the debt incurred by any of the shareholders and directors (Nelson Kombe Mangaro vs.Tana River Bus Services, Mansour Naji Said & another (Objectors/Applicants) [2019] eKLR).

6. If it is the case of the applicant that the objector company has been incorporated as a devise to deny it its legal fees, it must apply for the veil of incorporation to be lifted before it can attach the goods in question.

7. Consequently, I allow with costs the notice of motion by the objector as it has proved its case. The attachment is lifted.

DATED and DELIVERED at NAIROBI this 18THday of JULY 2022. A.O. MUCHELULEJUDGE