https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8660

Bonfire Adventures & Events Ltd & another v Kabu & another (Commercial Case E729 of 2025) [2026] KEHC 8660 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8660 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E729 of 2025 JWW Mong'are, J June 19, 2026 Between Bonfire Adventures & Events Limited 1st Plaintiff Sarah Njoki Nyaga 2nd Plaintiff and Simon Waithaka Kabu Defendant and Safaricom Kenya Limited Interested Party Ruling 1.By the Notice of Motion dated 7th November 2025 made under sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act, sections 142 and 143 of the Companies Act(Chapter 486 of the Laws of Kenya) and sections 17 & 21 of the Computer Misuse and Cybercrimes Act(Chapter 79C of the Laws of Kenya) the Plaintiffs seek the following orders:1.Spent2.That pending the hearing and determination of this suit, this Honourable Court be pleased to issue a Preservation and Injunction Order maintaining the status quo as at 03.11.2025 and restraining the Defendant, whether by himself, his agents, servants, employees, or any persons acting under his instructions, from:i.Interfering with, deleting, transferring, redirecting, deactivating, blocking, or in any manner tampering with any of the forty-eight (48) Safaricom telephone lines listed in the Schedule annexed hereto and marked “SNN–1A,” together with all associated client databases, e-mail accounts, WhatsApp lines, and digital communication platforms belonging to or used by Bonfire Adventures & Events Limited.ii.Accessing, copying, exporting, or utilizing any company data, communication records, or client information derived from the said telephone lines or associated platforms for any personal, competitive, or non-corporate purpose.3.That an Order do issue directing the Interested Party, Safaricom PLC, to preserve and maintain in active operational status all the forty-eight (48) Safaricom telephone lines listed in the Schedule annexed hereto and marked “SNN–1A,” and to refrain from effecting, approving, or authorizing any transfer, redirection, deactivation, or modification of ownership thereof without the written authorization of the full Board of Directors of Bonfire Adventures & Events Limited or a further order of this Honourable Court.4.That an Order do issue as at 03.11.2025 compelling the Defendant to deliver up all company-related SIM cards, passwords, log-in credentials, and digital access codes in his possession to the 2nd Plaintiff for purposes of secure custody and continued business operation.5.That the Plaintiffs be granted leave to conduct a forensic audit and backup of all company telephone records, WhatsApp Business accounts, CRM systems, e-mail servers, and client databases for evidential preservation, under the supervision of their Advocates and an independent IT expert.6.That Costs of this application be provided for. 2.The application is supported by the grounds on its face and the supporting affidavit of the 2nd Plaintiff sworn on 7th November 2025. It is opposed by the Defendant through his replying affidavit sworn on 25th November 2025. The parties canvassed the application by way of written submissions which together with the pleadings I have considered and I will be making relevant references to the same in my analysis and determination below. Analysis and Determination 3.The parties agree in their submissions that the court is being called to determine whether the application meets the threshold for the grant of temporary injunctive relief as set out in the case of Giella v Cassman Brown & Co., Ltd. [1973] E.A. 358. The parties are in agreement that for the Plaintiffs to succeed, they are required to demonstrate a prima facie case with a probability of success, that they will suffer irreparable injury which would not adequately be compensated by an award of damages and that if the Court is in doubt, it should decide the application on the balance of convenience. These conditions are to be applied as separate, distinct and logical hurdles which the Plaintiffs are expected to surmount sequentially which means that if the Plaintiffs do not establish a prima facie case then irreparable injury and balance of convenience do not require consideration (see Nguruman Limited v Jan Bonde Nielsen& 2 others [2013] KECA 347 (KLR) 4.As to what constitutes a prima facie case, I am in further agreement with the parties that the Court of Appeal in Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) explained that it is, “….a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.” The Plaintiff’s case is that the Defendant claims he personally owns the 48 subject Safaricom lines and has demanded Kshs.1,868,100,000.00/= in past license fees plus Kshs.14,400,000.00/= per month for their continued use and that he has threatened to block, transfer, or take “self-help measures” against the lines. The Plaintiffs claim that these lines are the 1st Plaintiff’s company property used exclusively for the business, paid for by the company, and only registered in the Defendant’s name as a matter of initial administrative convenience. 5.They depone that the company employs over 1,000 people and disrupting the lines would paralyze operations, destroy client confidence, and cause mass layoffs. That as a director, the Defendant is acting against the Company’s interests, attempting to expropriate its communication infrastructure and they further accuse the Defendant of secretly owning a rival travel company, Adequate Safaris Limited thereby creating a clear conflict of interest contrary to the Companies Act and the common law principles governing directors’ fiduciary duties. It is their further position that the parties are estranged spouses with ongoing divorce and matrimonial property proceedings in Kiambu HCFOS E0008 of 2025 and the Defendant’s actions are allegedly vindictive and aimed at gaining leverage in those cases. 6.The Plaintiffs state that the Defendant threatens to delete or alter electronic evidence critical to proving ownership of the lines and that is why pending the final determination of this suit, the Plaintiffs urge the court to preserve the lines, restrain the Defendant from any interference, and maintain the operational status quo to prevent immediate and irreversible damage to the business. 7.In his reply, the Defendant depones that that the court granted prayers 2 & 3 ex parte for the entire pendency of the suit, arguing that ex parte injunctions should last no more than 14 days unless extended by consent or court order. The Defendant accuses the 2nd Plaintiff of deliberately withholding information to make him appear as a contemnor, specifically that one of the lines, 071\\\4 is used for his personal communication, not just company business. That this fact was always known to the by the 2nd Plaintiff but not disclosed to the court. 8.The Defendant asserts that the subject lines are registered in his name, a fact the Plaintiffs admit and that registration does not transfer ownership simply because the company has used them over time. He argues the court cannot expropriate or extinguish his property rights under Article 40 of the Constitution without compensation and that the 48 disputed lines are only a fraction of about 154 lines used by the company. That 102 lines are registered under the company, 4 lines under the 2nd Plaintiff and the 48 lines belong to him. The Defendant contends that he is not trying to ground operations but only seeking formalized payment for use of his property and that the demand letter of 3rd November 2025 was not intended to deprive the company of using the lines. 9.He further depones that he is not interested in taking away databases, WhatsApp business accounts, CRM systems, emails, or client records and that he only wants compensation for use of the lines. That the company can procure its own lines, connect its emails/databases to them, and return his lines blank if it cannot pay. The Defendant states that the 2nd Plaintiff is estopped from claiming the lines are exclusively for company business because she uses her own line, 07\\\09, for a competing business called Virtuous Explorers Club which demonstrates she also mixes personal and company communication. 10.The Defendant denies breach of fiduciary duty, conversion, misappropriation, corporate sabotage, or conflict of interest or that he connected to Adequate Safaris Limited and that the Trust Deed annexed by the Plaintiffs is deemed a forgery and should be treated with contempt. He further states that the matrimonial dispute in Kiambu HCFOS E008 of 2025 has no bearing on this commercial dispute, that if the company cannot pay, he can refund costs as damages would be adequate and that the balance of convenience does not favour the Plaintiffs. 11.It is also his position that the issue of databases, emails, CRM records is already before the court in HCCOMM E029 of 2025 which was set for highlighting of submissions on 27th January 2025. He thus states that this case may offend the sub judice rule. For these reasons, the Defendant prays that the court dismisses the application with costs. 12.It is not in dispute that the 48 Safaricom lines are registered in the Defendant's personal name. Whereas the Plaintiffs argued that this was a matter of administrative convenience and that the Defendant held these lines on behalf of or in trust for the company, no express trust document, no board resolution, no written agreement, and no contemporaneous evidence shows that the Defendant agreed to hold the lines in trust for the company. The Defendant cited the Court of Appeal decision of Archer & another v Archer & 2 others [2023] KECA 298 (KLR) where it was held that an express trust requires clear identification of trust property, purpose, and beneficiaries. The Plaintiffs have provided none. Further, a resulting trust arises from direct financial contribution toward purchase of property at the time of acquisition. The Plaintiffs submitted that the company paid for airtime and maintenance but that is not payment of the purchase price of the lines themselves as the lines were acquired by the Defendant personally years ago. Lastly, a constructive trust requires evidence of a common intention or bargain, and detrimental reliance. The vague assertion by the Plaintiffs that registration was for convenience, without any written or oral agreement, does not satisfy the establishment of a prima facie trust. 13.I am in agreement with the Defendant’s submissions that under section 27C (2) of the Kenya Information & Communications Act(Chapter 411A of the Laws of Kenya) the registered subscriber is prima facie liable for activities using that SIM card and when a subscriber registers a SIM card, this creates a basic telecommunications service relationship between the telecommunications provider and the subscriber (See Wachira v Safaricom Company Limited [2024] KEHC 16425 (KLR)]. As the Defendant is the registered subscriber, the Plaintiffs have no privity of contract with the telecommunications provider, Safaricom, regarding those lines and without evidence to the contrary, they remain, at least on a prima facie basis, the property of the Defendant. 14.I have also gone through the parties’ rival depositions and I could not help but notice that from the demand letter dated 3rd November 2025 from the Defendant’s advocates, he admits the lines have been used by the company, but he is not trying to take them away as he only wants compensation for their use and the letter expressly seeks payment, not deactivation. The Defendant has also pointed out and it has not been disputed that the 48 lines are only a fraction of about 48 out of 154 of the company's total lines. The company has 102 lines registered in its own name and continues to acquire new lines as evidenced by the Plaintiffs’ own annexure marked “SNN-3”. 15.The Plaintiffs also alleged the Defendant owns Adequate Safaris Limited through a trust deed which the Defendant deems a forgery and denies any interest in that company. Even if true, that would be a separate claim for breach of fiduciary duty, but it does not convert the Defendant's personally registered lines into company property. The subject matter of this application is ownership of the 48 lines, not the Defendant's alleged competing business. In any event, the Defendant has also shown that the 2nd Plaintiff uses her personal line for a competing business Virtuous Explorers Club which undermines her argument that lines registered in a director's name but used for business automatically become company property. 16.The Plaintiffs' claim of corporate sabotage is not supported as there is no evidence that the Defendant has blocked or deactivated any lines. He only issued a demand for payment, which he is legally entitled to do considering the subject lines are registered in his name. The Defendant expressly deponed and swore at para. 14 of his deposition that he has no interest in the company's databases, emails, WhatsApp Business accounts, CRM systems, or client records and that he only wants the lines retuned to him “blank” or paid for. In my view, the company can port its email addresses and databases to its own registered lines at any time. 17.In the end, I find that the Plaintiffs have failed to demonstrate a prima facie case with a probability of success as they have admitted the lines are registered in the Defendant's name, produced no trust document, board resolution, or written agreement showing that the lines are registered in the Defendant’s name in trust for the company, they have not shown any direct financial contribution toward purchase of the lines themselves and they have not rebutted the statutory presumption that the registered subscriber is the owner. 18.Because the Plaintiffs have not crossed the first hurdle as stated in Nguruman(supra), the court does not need to consider irreparable injury or balance of convenience. The application for injunctive and preservation orders fails at this threshold. Conclusion & Disposition 19.In the foregoing, the application dated 7th November 2025 is dismissed with costs. The interim orders in place are discharged forthwith. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE 2026............................................................................J.W.W. MONGAREJUDGEIn The Presence OfMr. Mwenda Njagi 1st and 2nd for the Applicant.Mr. Githinji for the Respondent.Mr. Kuria for the Intended Interested Party.Amos- Court Assistant