https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1392

Board of Management Visa Oshwal Primary School v Radiala & 5 others (Employment and Labour Relations Cause E1280 of 2025) [2026] KEELRC 1392 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1392 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E1280 of 2025 HS Wasilwa, J May 18, 2026 Between Board of Management Visa Oshwal Primary School Claimant and David Omondi Radiala 1st Respondent Sub-County Director, MOE Westlands 2nd Respondent Regional Director, MOE, Nairobi 3rd Respondent Equity Bank Limited 4th Respondent KCB Bank Limited 5th Respondent Hon Attorney General 6th Respondent Ruling 1.The Claimant/ Applicant filed a Notice of Motion dated 20th November 2025 seeking orders That: -1.Spent2.That the order made on 19/01/2026 withdrawing the suit be vacated and or set aside and the suit be reinstated for hearing on its merit.3.That the costs of this application be in the cause. 2.The Claimant/Applicant further filed a Notice of Motion dated 3rd March 2026 seeking orders That:1.That there be a temporary and or conservatory and or injunction restraining the 1st Respondent, Sub-County Director, Ministry of Education Westland, Regional Director, Ministry of Education Nairobi County and the Hon. Attorney General and or their agents, servants and or employees from holding any meeting to dissolve the Board of the Claimant and/or terminating the services of the Board of Management Members pending the hearing and determination of this application.2.That there be a temporary and or conservatory and or injunction restraining the 1st Respondent, Sub-County Director, Ministry of Education Westland, Regional Director, Ministry of Education Nairobi County and the Hon. Attorney General and or their agents, servants and or employees from holding any meeting to dissolve the Board of the Claimant and or terminating the services of the Board of Management Members pending the hearing and determination of this cause.3.That the costs of this application be in the cause. Claimant/Applicant’s Case 3.It is the Applicant’s case that the law firm of Waklaw Advocates, without instructions from the Claimant, irregularly filed a Notice of Change of Advocates together with a Notice of Withdrawal of Suit. 4.The Applicant avers that the duly authorised advocates on record, Messrs Jackson Omwenga & Co. Advocates, were never served with the Notice of Motion Application, the Notice of Withdrawal of Suit and/or the Mention Notice. 5.The Applicant states that the 1st Respondent had no authority, mandate and/or instructions from the Claimant to appoint Waklaw Advocates or to withdraw the suit on behalf of the Claimant. Following the 1st Respondent’s failure to comply with the Court Orders issued on 18/12/2025, he resorted to unlawful tactics aimed at defeating the said orders by purporting to withdraw the suit. 6.The Applicant further avers that the 1st Respondent has been mismanaging the School’s finances by withdrawing funds from the School bank accounts and making payments to himself contrary to the law and the interests of the School. The Applicant contends that unless restrained, the School stands to suffer irreparable loss and damage in matters relating to accountability and transparency. 7.It is the Applicant’s case that counsel for the Claimant informed the Applicant that on 19/02/2026, Mr. Wakoko Advocate informed the Deputy Registrar that the Sub-County Director and Regional Director of the Ministry of Education intended to dissolve the duly constituted Board of Management. 8.The Applicant states that the current Board was inaugurated on 14/07/2025 and comprises Dr. Scholar Wayua, Corrine Mbati, Elizabeth Njeri Ngugi, Dr. Gitahi Nduhiu, Stephen Gikami, Mohamed Ahmed, Jennifer Kilonzo, Christine Karianu, Nicodemus M. Kerongo, Beatrice Musau, Charles Arumba, James Kilika, Valentine Opiyo and Mitchel Wanjiru. It is averred that the Board was appointed for a term of three (3) years effective from 01/06/2025 to 31/05/2028. 9.The Applicant further states that on 18/12/2025 this Court issued orders restraining the Respondent from withdrawing funds from the Claimant’s bank account without the minuted approval of a duly constituted quorum of the Board. Despite the said orders, the 1st Respondent, with the intention of defeating the Court Orders, unilaterally appointed Mr. Wakoko of Waklaw Advocates to file a Notice of Withdrawal of the suit and thereafter proceeded to access the Claimant’s bank accounts without approval of the Board. 10.The Applicant contends that there exists a real apprehension that if the Board is dissolved as threatened, the School funds shall be wasted, misused, misappropriated and/or stolen, yet the Board shall ultimately be held accountable for the withdrawals undertaken by the 1st Respondent. The Applicant therefore asserts that it would be fair and just for the Court to order that the duly constituted Board should not be dissolved pending internal resolution of the dispute and/or determination by the Court. 11.It is the Applicant’s case that the 1st Respondent has continued withdrawing school funds and issuing cheques in his own name contrary to the provisions of the Basic Education Act. 12.The Applicant states that the threat to dissolve the Board is real and unless the Court intervenes, the school shall suffer irreparable loss and damage. The orders sought will not prejudice the Respondents but are beneficial to the School. 13.The Applicant further avers that the Claimant Board was duly appointed on 01/06/2025 for a fixed term of three years set to expire in or about May 2028 and was formally inaugurated on 31/07/2025. 14.The Applicant states that following the retirement of the former Headteacher, Evantus Njoroge Ithagu, on 01/08/2025, the 1st Respondent immediately assumed office. 15.It is the Applicant’s case that approximately three weeks thereafter, the 1st Respondent commenced lodging complaints with Ministry officials without the knowledge and/or involvement of the Claimant Board, principally challenging the constitution and formation of the Board. 16.The Applicant further contends that the 1st Respondent proceeded, without lawful authority, to remove all designated signatories to the School’s bank accounts and thereafter undertook unilateral withdrawals of School funds with the assistance of the 2nd Respondent. 17.The Applicant states that upon apprehending imminent risk to the School finances, the Claimant Board moved the Court under certificate of urgency seeking reinstatement of the account signatories, which application was allowed by the Court. 18.Despite service of the said Court Order upon the Headteacher, he precipitated a crisis within the School by falsely representing that the School bank accounts had been closed contrary to the terms of the Court Order which merely restrained withdrawals without approval of a duly constituted quorum and minutes of the Board. 19.The Applicant states that the Ministry of Education subsequently directed the Board to convene an executive meeting on 03/01/2026 but the Headteacher, despite being Secretary to the Board, declined and/or failed to attend the said meeting and his absence was communicated to the Ministry. 20.The Applicant further avers that the Ministry later directed the Board to be present at the School to facilitate opening of the School and admission of learners, but the Headteacher wilfully disobeyed the directive and instead issued a memorandum to parents containing false and misleading information regarding operation of the School bank accounts, thereby inciting unrest. 21.The Applicant contends that the purported Special Board of Management meeting allegedly held on 06/01/2026 and relied upon by the Respondents is null and void ab initio, the 2nd Respondent having unlawfully usurped the role of the Chairperson and purported to instruct Waklaw Advocates to withdraw the present suit without authority and/or mandate from the Claimant Board. 22.It is the Applicant’s case that the said meeting was conducted in a tense and coercive environment where members of the Board were compelled against their will to sign the attendance register which was thereafter retained by the 2nd Respondent who proceeded to convene an Annual General Meeting with the apparent intention of unlawfully removing the Board while facilitating withdrawal and/or misapplication of School funds. 23.The Applicant asserts that the decision of the County Education Board (CEB) to remove and appoint members of the Board within a single day, namely on 16/03/2026, was unlawful, irregular and in contravention of the law and principles of fair administrative action since no investigations were conducted into the allegations levelled against the Board. 24.The Applicant contends that the Board was never accorded a fair hearing, issued with notice of the allegations against it or afforded an opportunity to respond thereto contrary to Article 47 of the Constitution on fair administrative action. 25.It is averred that the CEB failed to appoint any interim committee to oversee the management of the School pending lawful appointment of a substantive Board thereby occasioning a governance and administrative vacuum. 26.The Applicant states that upon assuming office, the Claimant Board did not approve any capital expenditure and the only resolutions passed concerned expenditures for supplies and services necessary to sustain operations of the School. 27.The Applicant avers that the purported revocation of the appointments of Charles Arumba and Rev. Canon Scholar was unlawful, irregular and procedurally flawed and further denies that other Board members resigned as alleged by the Respondents. 28.It is the Applicant’s case that the suit was instituted in good faith and in the best interests of the learners and the School with the sole objective of safeguarding the School funds from misappropriation and/or unlawful interference by the Respondents. Claimant/Respondent Case 29.The Claimant/Respondent avers that on or about 04/02/2026, the County Education Board recommended the dissolution of the previous Board of Management on grounds inter alia that the Board had mismanaged School funds, failed to act in the best interests of the learners and that its composition was contrary to the provisions of the Basic Education Act. The Respondent avers that the said recommendation was endorsed by the Cabinet Secretary on 13/03/2026. 30.The Respondent further states that following the Ministry’s advisory, the previous Board of Management was dissolved on 16/03/2026 and a new Board appointed on the same day. The newly appointed Board was inaugurated on 16/03/2026 by the 2nd Respondent whereupon the deponent was elected Chairperson of the Board. 31.The Respondent states that upon inauguration, the Board deliberated on urgent School matters and resolved that the firm of M/s Jackson Omwenga & Co. Advocates had never been instructed to act on behalf of the Board and/or institute any suit on its behalf. 32.The Respondent further avers that the Board adopted and confirmed the resolutions of the Special Board Meeting held on 06/01/2026 which had resolved to instruct the firm of M/s Waklaw Advocates to take over conduct of this suit and proceed to withdraw the same without prejudice. 33.It is the Respondent’s case that the deponent to the Supporting Affidavit, Dr. James Kilika, had misrepresented himself before the County Education Board as a person living with disability and therefore purported to represent the interests of persons with disabilities in the Board whereas the said information was false, thereby rendering him unqualified to sit on the Board. 34.The Respondent further avers that the membership of Charles Arumba and Rev. Canon Scholar to the said Board was revoked on 05/12/2025 while other Board members resigned, thereby leaving no functional Board capable of sitting and passing valid resolutions. 35.The Respondent states that the Headteacher, who is Secretary to the Board and the 1st Respondent herein, was unaware of any Board meeting which resolved to instruct the firm of M/s Jackson Omwenga & Co. Advocates to institute suit on behalf of the Board. 36.It is averred that Dr. James Kilika should personally bear any costs arising from the suit on account of allegedly subverting the interests of the pupils of Visa Oshwal Primary School. 37.The Respondent contends that the suit was properly withdrawn by the firm of Waklaw Advocates upon receipt of lawful instructions from the Board. 38.The Respondent further avers that the previous Court Orders resulted in freezing of the School bank accounts by the 4th and 5th Respondents leading to near collapse and closure of the School due to inability to access funds necessary for running the School. 39.It is the Respondent’s case that this Court lacked subject matter jurisdiction to entertain the original claim and therefore the Court ought to down its tools. 40.The Respondent avers that the individuals who instituted the suit in what is termed as the wrong forum should be condemned to pay costs and that the applications herein ought to be dismissed with costs borne personally by either M/s Jackson Omwenga & Co. Advocates and/or Dr. James Kilika. 41.The Respondent avers that the Basic Education Act obligates every Board of Management to act in the best interests of the child and the School and that the said principles were allegedly breached by Dr. James Kilika and his group. 42.It is the Respondent’s case that the previous Board was incompetent and was properly dissolved for reasons set out in the Cabinet Secretary’s Advisory dated 13/03/2026, namely failure to act in the best interests of learners, composition contrary to statute, purchase of a moribund School bus, un-procedural acquisition of loans and mismanagement of School property. 43.The Respondent states that the Board was not quorate on 17/12/2025 when the purported instructions to institute suit were allegedly issued since several members had either resigned, declined reappointment or had their appointments revoked. 44.In particular, the Respondent avers that Stephen M. Gikami resigned on 12/12/2025, Dr. Nduhiu Gitahi declined reappointment on 31/07/2025, Valentine O. Opiyo declined reappointment on 10/09/2025, Rev. Canon Scholar and Charles Arumba had their appointments revoked on 05/12/2025, while Dr. James Kilika falsely alleged that he represented persons living with disability. 45.The Respondent further avers that on 06/01/2026, parents of Visa Oshwal School resolved that the School Board be dissolved and that an Annual General Meeting be convened. 46.It is averred that during the Annual General Meeting held on 16/01/2026, parents elected new Parents Association representatives, six of whom were subsequently appointed to the Board by the Ministry pursuant to Section 56(1)(a) of the Basic Education Act. 47.The Respondent contends that a new Board has already been lawfully inaugurated and therefore no legal basis exists for disrupting School operations in a manner prejudicial to the best interests and welfare of the child. 48.The Respondent finally avers that the Affidavit was sworn in opposition to the twin applications filed by Dr. James Kilika and reiterates that the said Dr. Kilika should be condemned to bear the costs of the suit and all applications herein. 4th and 5th Respondents’ Case 49.In opposition to the application dated 20th January 2026, the 4th Respondent filed Grounds of Opposition dated 17th February 2026 on the following grounds:1.The 4th Respondent is a stranger to the issues raised by the parties herein, which form the subject of the claim and the present application.2.The 4th Respondent has no stake or proprietary interest in the property or funds that are the subject of these proceedings and is therefore reduced to a mere bystander with no real involvement in the dispute herein.3.No cause of action has been disclosed as against the 4th Respondent. Consequently, the 4th Respondent is not a necessary party and its continued presence cannot assist the Honourable Court in determination and/or settlement of any issues or questions arising between the parties.4.There are no reliefs sought against the 4th Respondent in its own capacity.5.Accordingly, the joinder of the 4th Respondent in these proceedings is unnecessary and bad in law.6.The 4th Respondent ought to be forthwith excused from these proceedings 50.The 5th Respondent also filed Grounds of Opposition dated even date on the following grounds:1.That this Honorable Court is functus officio the matter having been withdrawn by the Petitioner on 19th January 2026.2.That without prejudice to foregoing, the 5th Respondent is a stranger to the alleged underlying governance disputes at the Claimant’s school.3.That the application discloses no demonstrable cause of action by the Claimant as against the 5th Respondent.4.That the application as drawn and taken out is misconceived, bad in law and is devoid of merit as against the 5th Respondent.5.That it is in the interest of justice that the application be dismissed with costs to the 5th Respondent. Claimant/Applicant’s Submissions 51.The Applicant submitted on two issues: whether the firm of WAKLAW Advocates had instructions from the Claimants to withdraw the suit; and whether the injunctive order can be issued against the Respondents. 52.On the first issue, the Applicant submitted that prior to the institution of the suit, the Claimant Board comprised the members appointed vide the Appointment Letter dated 14/07/2025 for a term of three years commencing 01/06/2025. Upon assuming office, the Board discovered that the School’s funds were being misappropriated by the 1st Respondent through irregular, unexplained and suspicious withdrawals undertaken without resolutions or approval of the Board. 53.The Applicant submitted that owing to the said irregularities, the Claimant Board issued express written instructions to the firm of Jackson Omwenga & Co. Advocates to urgently move the Court vide the Notice of Motion Application dated 18/12/2025 seeking injunctive orders restraining the Respondents from further withdrawing or dealing with the School accounts. 54.The Applicant further submitted that although the Court granted the injunctive orders, the firm of WAKLAW Advocates irregularly and surreptitiously filed a Notice of Change of Advocates without service upon Jackson Omwenga & Co. Advocates and thereafter proceeded to file a Notice of Withdrawal of the suit without any instructions from the Claimant Board. 55.The Applicant submitted that Order 9 Rules 5 and 6 of the Civil Procedure Rules requires where a party intending to change advocates, a notice of such change must be duly served upon the present advocates on record. However, the firm of WAKLAW Advocates neither had instructions to replace Jackson Omwenga & Co. Advocates nor effected service of the alleged Notice of Change of Advocates and therefore its purported entry into the proceedings was irregular, incompetent and illegal ab initio. 56.The Applicant further submitted that the advocate-client relationship is founded strictly on instructions and that an advocate derives authority solely from the client and cannot act in excess of or in absence of such instructions. It was argued that withdrawal or discontinuance of a suit is a substantive step affecting litigants’ rights and must therefore be expressly sanctioned by the client. 57.The Applicant submitted that upon filing the Notice of Motion dated 09/01/2026 seeking withdrawal of the suit, one Johnson Nduhiu Gitahi swore a supporting affidavit falsely representing that he was the Chairman of the Parents Teachers Association and that the Claimant Board was no longer interested in prosecuting the suit, which position was denied by the Applicant. It was submitted that the Court was thereby hoodwinked into allowing the withdrawal application. 58.It is the Applicant’s submission that the impugned firm was illegally on record and that its conduct amounted to gross abuse of the Court process intended to sabotage the suit and undermine the interests of the Claimant Board. 59.The Applicant submitted that the Claimant/Respondent’s allegation that the Claimant Board was dissolved on 16/03/2026 on grounds of gross misconduct and that a new Board was appointed on the same date is questionable; as no investigations were undertaken and the requirements of fair administrative action under Article 47 of the Constitution were not complied with, thereby infringing upon the Board members’ right to fair hearing. 60.The Applicant argued that prior to any dissolution of the Board, the County Executive Board was obligated to issue reasonable notice to each Board member and afford them adequate opportunity to respond to the allegations. 61.It was further submitted that upon lawful dissolution, an interim management committee ought to have been constituted pending appointment of a substantive Board by the Ministry of Education. 62.It is the Applicant’s submissions that the purported appointment of the new Board was undertaken in blatant disregard of mandatory procedure and was intended to sanitize the impugned actions. The Applicant contended that the new Board, in collusion with the 1st Respondent, had since mismanaged the School’s affairs, occasioning substantial indebtedness and operational decline. 63.The Applicant submitted that Courts have consistently frowned upon actions that undermine the integrity of judicial proceedings and should not hesitate to set aside such irregular acts. It cited Mohamed Salim t/a Choice Butchery v Nasserpuria Memon Jamat [2015] eKLR, where the Court emphasized the mandatory nature of filing and service of a Notice of Change of Advocates under Order 9, rules 5 and 6 of the Civil Procedure Rules, held that non-compliance with these procedural requirements is not a mere technicality and cannot be cured even by Article 159(2)(d) of the Constitution. 64.The Applicant therefore submitted that in absence of instructions from the Claimant Board appointing WAKLAW Advocates and owing to non-compliance with the mandatory provisions governing change of advocates, the firm was improperly on record and ought to be struck out together with all pleadings filed by it, including the Preliminary Objection dated 16/02/2026. 65.On the prayer for injunction, the Applicant submitted that the Application satisfied the principles set out in Giella vs Cassman Brown & Co. Ltd (1973) E.A. 358 namely; establishment of a prima facie case with probability of success, irreparable injury incapable of compensation by damages and, where in doubt, determination on a balance of convenience. 66.The Applicant submitted that it has established a prima facie case by demonstrating an illegal takeover by the impugned new Board allegedly acting in cahoots with the 1st, 2nd and 3rd Respondents for purposes of diverting School funds for personal gratification. 67.It was submitted that the minutes of the Special Board Meeting held on 06/01/2026 are null and void as they depicted the 2nd Respondent unlawfully usurping the role of the Board Chair, Dr. James Kilika, and purporting to pass illegal resolutions including reopening the School accounts contrary to the interim orders issued on 18/12/2025 restraining the 1st, 2nd and 3rd Respondents from accessing the accounts. 68.The Applicant submitted that the 1st, 2nd and 3rd Respondents had misapplied School funds and acted in blatant disobedience of Court orders and unless the Court intervenes by granting the injunctive orders sought in the Application dated 03/03/2026, the School stood to suffer irreparable loss. Claimant/Respondent’s Submissions 69.The Respondent submitted that Visa Oshwal Primary School, being a public primary school, is managed by a Board of Management established under Section 55 of the Basic Education Act as a body corporate. The functions of the Board include protection of the interests and welfare of learners as well as management of school resources. 70.It was submitted that the composition of the Board is regulated by statute and appointments thereto are made by the County Education Board, while Section 62 of the Basic Education Act designates the Head Teacher as the Secretary to the Board. 71.The Respondent submitted that on 14/07/2025, the Ministry of Education recommended appointment of a new Board of Management for the School. However, subsequent developments affected the composition of the Board, including the resignation of Stephen M. Gikami on 12/12/2026, refusal of appointment by Dr. Nduhiu Gitahi on 31/07/2025, refusal of appointment by Valentine O. Opiyo on 10/09/2025 and revocation of appointments of Rev. Canon Scholar and Charles Arumba by the County Education Board on 05/12/2025. 72.It was submitted that on 18/12/2025, the firm of M/S Jackson Omwenga & Co. Advocates allegedly received instructions to institute the suit on behalf of the Board of Management claiming unfair and unlawful termination of some Board members and denial of fair hearing. The Respondent argued that the alleged instructions were purportedly signed by persons who were no longer valid members of the Board as some had resigned while others had their appointments revoked. 73.The Respondent submitted that following issuance of interim orders by the Court, which allegedly paralysed the operations of the School, parents convened a meeting on 06/01/2026 and resolved that the entire Board be disbanded and reconstituted. 74.It was submitted that an Ad-hoc Board of Management chaired by the Sub-County Director of Education and attended by Ministry of Education officials instructed the firm of M/S WAKLAW Advocates on the same date to take over conduct of the matter and withdraw the suit. 75.The Respondent submitted that parents thereafter held a Special Annual General Meeting on 16/01/2026 during which elections for the Parents Association were conducted and new officials elected. Six of those elected were subsequently appointed as members of the Board of Management on 16/03/2026 pursuant to Section 56(1)(a) of the Basic Education Act. According to the Respondent, the parents further affirmed the resolution made on 06/01/2026 for the Board of Management to be disbanded and reconstituted. 76.The Respondent further submitted that the County Education Board recommended dissolution of the Board of Management and that the Cabinet Secretary concurred with the recommendation owing to several alleged misdeeds including pilferage of School funds and failure to protect the interests of learners. It was submitted that a fresh Board was inaugurated on 16/01/2026 and at its inaugural meeting confirmed the instructions issued to M/S WAKLAW Advocates pursuant to the resolution of 06/01/2026. 77.On the Preliminary Objection dated 16/02/2026, the Respondent submitted that the County Education Board appoints Boards of Management whose duty, together with teachers, is management of schools and therefore no employer-employee relationship exists between the parties to invoke the jurisdiction of this Court. 78.The Respondent relied on the Supreme Court decision in Odongo v Clerk, Nakuru County Assembly & 5 others [2024] KESC 29 (KLR) and submitted that this Court lacks jurisdiction to entertain the dispute. It was argued that since the Court is devoid of jurisdiction, it equally lacks power to reinstate the matter. 79.Regarding the Notices of Motion dated 20/01/2026 and 03/03/2026, the Respondent submitted that M/S WAKLAW Advocates received express instructions from the Board of Management pursuant to the resolution passed on 06/01/2026 directing withdrawal of the suit. Consequently, the Court marked the suit as withdrawn on 19/01/2026. 80.The Respondent further submitted that the instructions issued to M/S WAKLAW Advocates were subsequently affirmed by the newly constituted Board during its inaugural meeting held on 16/03/2026, thereby removing any doubt as to which law firm had proper instructions to act in the matter. 81.It was further submitted that M/S Jackson Omwenga & Co. Advocates had failed to exhibit any cogent written instructions from the Board. The Respondent argued that the annexed document titled “Consent and Authority of the Board Members” was undated and of questionable authenticity because not all Board members signed it and some of the alleged signatories have either resigned, renounced their appointments or had their membership revoked by the County Education Board. It cited County Council of Bureti v Kennedy Nyamokeri t/a Yyamokeri & Co Advocates [2006] eKLR wherein it was held that instructions from a public entity and or body corporate need to be in writing and or upon resolution. 82.It is the Respondent’s submission that the cardinal responsibility of a Board of Management of a public school is protection of the interests of children and safeguarding of public resources. It was submitted that the previous Board was dissolved vide the Cabinet Secretary’s letter dated 13/03/2026 for dereliction of duty, failure to comply with statutory requirements and mismanagement of school facilities among other grounds. 5th Respondent’s Submissions 83.On whether the 5th Respondent ought to be struck out from the proceedings, it was submitted that a fundamental principle of civil litigation is that a party against whom relief is sought must be shown to have committed a legal wrong or breached a duty owed to the claimant. 84.The 5th Respondent submitted that the burden lies upon the Claimant to demonstrate through pleadings and supporting material that the 5th Respondent engaged in conduct giving rise to liability. However, the Claimant’s application is silent on any specific act or omission attributable to the 5th Respondent capable of grounding a cause of action. 85.It is the 5th Respondent’s submission that the Claimant’s allegations relate to interference with management of the School and alleged misappropriation of funds by the 1st Respondent and that the said allegations do not implicate the 5th Respondent in any actionable wrongdoing. 86.It was submitted that the 5th Respondent, being a bank, operates strictly within the confines of its contractual relationship with its customer and merely executes instructions as received unless there exists knowledge of illegality or a contrary court order. It cited D.T. Dobie & Company (Kenya) Ltd. v. Muchina (1982) KLR 1, where the court held:"... No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak.” 87.The 5th Respondent submitted that the Claimant failed to demonstrate any breach of duty, negligence, collusion or unlawful conduct on its part of the 5th Respondent. 88.It submitted that Order 2 Rule 15(a) of the Civil Procedure Rules empowers the Court to strike out pleadings that disclose no reasonable cause of action or defence in law. Further, Order 1 Rule 10(2) of the Civil Procedure Rules grants the Court power at any stage of proceedings to strike out the name of any improperly joined party. 89.It was therefore submitted that in absence of particulars disclosing liability against the 5th Respondent, the applications against it are misconceived, speculative, untenable and legally unsustainable and consequently its name ought to be struck out from the proceedings with costs. 90.On whether the Court is functus officio, the 5th Respondent submitted that the doctrine of functus officio is a cardinal principle intended to ensure finality in litigation by preventing courts from revisiting matters already conclusively determined. 91.The 5th Respondent submitted that the suit upon which the impugned applications are premised had already been withdrawn on 19/01/2026 through M/S WAKLAW Advocates acting for the Petitioner. Reliance was placed on Antony Kayaya Juma Vs Humprey Ekesa Khaunya ) & The District Land Registrar Busia)[2004] eKLR:“I refer to the case of Kenya Commercial Bank Ltd Vs Specialised Engineering Co. Ltd (1982) K.L.R. P. 485 Where it was held inter alia:(a)That a duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.(b)An advocate has general aut hority to compromise on behalf of his client, as long as he is acting bonafide and not contrary to express negative direction. In the absence of express direction, the order shall be binding.” 92.It is the Respondent’s submission that the only option available to the Petitioner was institution of a fresh suit and that the present application is barred and ought to be dismissed on that ground alone. 93.On whether the threshold for injunctive orders had been met, the 5th Respondent submitted that the applicable principles are those set out in Giella vs Cassman Brown & Co. Ltd [1973] EA 358 namely establishment of a prima facie case, likelihood of irreparable harm and balance of convenience. It was submitted that the Claimant had failed to satisfy any of these principles as against it. 94.On the first limb, it was submitted that no prima facie case had been established against the 5th Respondent as there was no evidence of infringement of any right by the bank and further that there existed no subsisting suit upon which the application could be anchored. Reliance was placed on Mrao Ltd v First American Bank of Kenya Ltd& 2 others[2003] eKLR wherein the Court defined a prima facie case as one showing an apparent infringement of a right requiring rebuttal. It was submitted that no infringement attributable to the 5th Respondent has been demonstrated by the Claimant. 95.On the second limb, the 5th Respondent argued that the Claimant has failed to show irreparable harm arising from any act of the 5th Respondent since no cause of action had been established against it. 96.On the balance of convenience, the 5th Respondent submitted that the same tilted in its favour as it would suffer prejudice by being subjected to endless proceedings despite there being no nexus between the cause of action complained of and the 5th Respondent. 97.The 5th Respondent submitted that courts have consistently held that injunctive relief cannot issue against a party against whom no cause of action is disclosed and consequently the application ought to be dismissed as against the 5th Respondent. 98.I have examined all the averments and submissions of the parties herein. The applicants herein sought two fold prayers(1)to vacate the orders withdrawing the suit and(2)an order injuncting the respondents from dissolving the board of management of the applicant.The applicants have averred that the law firm of Waklaw advocates without their instructions irregularly filed a notice of change of advocates together with a notice to withdraw suit. The applicants aver that the duly authorised advocates on record of Messrs Jackson Omwenga and Co advocates who were never served with the notice of motion application notice of withdraw of suit and any mention notice. 99.I have looked at the pleadings and proceedings of the application. From the record, the applicants board of management was dissolved on 16/3/26 and a new board inaugurated on the same day and so the prayer to bar dissolution of the applicants board has already been overtaken by events. 100.As to the issue of the suit being withdrawn, it is also evident that the board that instructed the firm of Omwega to come on record is no longer in existence and a new board was inaugurated on 16/3/26. It is true then that a notice of appearance was filed by the incoming counsel who now indicated to court that he had instructions to withdraw the suit. The respondents contend that they were not served with the notice of appearance nor mention notice. 101.There is however no legal requirement that a notice of appearance must be served on the previous counsel. The notice of appearance takes effect once filed and therefore the issue of lack of service on Omwenga and co advocates is not legally mandatory. The counsel who was now properly on record chose to withdraw the suit and this was sanctioned by this court (Judge Rutto). I find no reason to entertain the application and the prayer to reinstate the same is not tenable. I find the twin applications not warranted and I dismiss them accordingly. There shall be no order of costs. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF MAY, 2026.HELLEN WASILWAJUDGE