[2014] KEHC 736 (KLR)
The court found that the deregistration of the Applicant company was a mistake, as the special resolution leading to the striking off was signed by individuals who were no longer directors or shareholders of the company. The Registrar of Companies, having been served with the application and not contesting the...
Source-derived case information.
- Citation
- [2014] KEHC 736 (KLR)
- Parties
- Applicant: Amili Limited; Respondent: The Registrar of Companies; Respondent: The Honourable Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 423 of 2014
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Restoration of Company Name
- Outcome
- Application allowed. Orders granted as prayed with costs to the 1st Respondent.
- Judges
- DO Ogembo
- Legal Topics
- Company Restoration, Deregistration of Companies, Corporate Registry Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amili Limited
Applicant
The Registrar of Companies
Respondent
The Honourable Attorney General
Respondent
Procedural Posture
Civil Case / Ruling on Notice of Motion for Restoration of Company Name
Legal Issues
- 1 Whether the Registrar of Companies acted lawfully in striking off the Applicant's name from the Register of Companies.
- 2 Whether the Applicant is entitled to restoration of its name to the Register of Companies.
- 3 Whether the Respondents will suffer prejudice if the Applicant's name is restored.
Ratio Decidendi
The court found that the deregistration of the Applicant company was a mistake, as the special resolution leading to the striking off was signed by individuals who were no longer directors or shareholders of the company. The Registrar of Companies, having been served with the application and not contesting the facts, was deemed to have accepted the Applicant's version. The court held that restoration of the company name was justified to prevent injustice to the shareholders and that no prejudice would be suffered by the Respondents. Accordingly, the court granted the orders sought for restoration of the Applicant's name to the Register of Companies and directed the Registrar to publish...
Court Disposition
Application allowed. Orders granted as prayed with costs to the 1st Respondent.
Orders
- The Registrar of Companies is directed to restore the name of the Applicant’s Company to the Register of Companies.
- The Registrar of Companies is directed to cause a notice to be published in the Kenya Gazette notifying the public of the restoration of the Applicant’s name in the Register of Companies.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & ADMIRALTY DIVISION
CIVIL CASE NO. 423 OF 2014
AMILI LIMITED::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF/APPLICANT
- VERSUS -
THE REGISTRAR OF COMPANIES::::::::::::::::::::::1ST DEFENDANT/RESPONDENT
THE HONOURABLE ATTORNEY GENERAL::::::.2ND DEFENDANT/RESPONDENT
R U L I N G
The Notice of Motion application before the court is dated 2nd September 2014 filed under Order 51 (1) of the Civil Procedure Rules, Section 339 (6) of the Companies Act, Cap 486, Sections 1A, 1B, 3 & 3A of the Civil Procedure Act.
The Applicant seeks the following orders:-
That an order do issue directing the Registrar of Companies to restore the name of the Applicant’s Company to the Registrar of Companies.
That an order do issue directing the Registrar of Companies to cause a notice to be published in the Kenya Gazette notifying the public at large of the restoration of the Applicant’s name in the Registrar of Companies.
That the court be pleased to issue any other order it deems fit to grant in the interest of justice.
That costs of this application be borne by the Respondents.
The application is premised on the grounds set out therein namely that on 6th June 2012, a special resolution signed by the previous directors of the Company and who no longer had control of it, was filed in the Company’s Registry requesting the Registrar to strike off the name of the Applicant off the Registrar of Companies alleging that the Company was dormant and had no assets or liabilities. The the Company was in fact struck off the Register despite their being returns to show that the authors of the resolution had long ceased to be shareholders or directors of the Applicant. The striking off of the Applicant’s name from the Register of Companies is detrimental to its shareholders and the Applicant came to learn of that recently thus necessitating this application. The Applicant states that the Respondent herein will not suffer any prejudice if the orders sought herein are granted by this Court, and that it is only fair and in the interest of justice that the name of the Applicant Company is restored in the Register of Companies.
The application is supported by affidavit of Hamed Ehsanidated 26th September 2014 with anenxturess thereto. The said affidavit expands mainly the above said grounds.
The application first came to court under Certificate of Urgency on 26th September 2014. This court certified the application as urgent and directed that the same be served upon the Respondents for hearing inter-partes on 9th October 2014. On the said hearing day, the Applicant was in court but the Respondent did not appear, despite them being served with the application and hearing notice. An Affidavit of Service was filed in court on 8th October 2014 proving service. On that account, I allowed the Applicant’s counsel, Mr. Nderitu to proceed ex-parte.
I have carefully considered the application and affidavit in support thereof. It appears clearly that the deregistration by the Registrar of Companies of the Plaintiff’s Company from the Register of Companies was an act of mistake. Since the Registrar was served with this application and the Registrar has not found it necessary to appear, I take it that the said allegation is the truth, and in light of the above, I allow the application prayed with costs to be borne by the 1st Respondent.
Orders accordingly.
READ, DELIVERED AND DATED AT NAIROBITHIS 31ST DAY OF OCTOBER 2014
E. K. O. OGOLA
JUDGE
PRESENT:
Nderitu for the Plaintiff/Applicant
No appearance for the Defendants/ Respondents
Irene – Court Clerk