https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10325

Digitalents System Limited & another v Maina (Miscellaneous Application E873 of 2024) [2026] KEHC 10325 (KLR) (Commercial and Tax) (10 July 2026) (Ruling) Neutral citation: [2026] KEHC 10325 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Miscellaneous Application E873 of 2024 RC Rutto, J July 10, 2026 Between Digitalents System Limited 1st Plaintiff Boris Owiye Agonga 2nd Plaintiff and Boniface Gichane Maina Defendant Ruling 1.By way of a Notice of Motion dated 25th July, 2025, the Defendant has invoked Sections 1A, 1B and 3A of the Civil Procedure Act and Order 43 (1) (u), Order 42, rule 6 (1) and Order 51, rule 1 & 3 of the Civil Procedure Rules seeking the following reliefs:1.… Spent;2.… Spent;3.… Spent;4.… Spent;5.The Honourable Court do issue an order nullifying the acts of the 2nd Plaintiff transferring the motor vehicles registration numbers KCZ 648Z and KDL 560Z to him;6.The Honourable Court do issue and order directing the 2nd Plaintiff to reverse the ownership of the motor vehicles registration numbers KCZ 648Z and KDL 560Z to the 1st Plaintiff;7.The costs of the application be borne by the 2nd Plaintiff. 2.The application is premised on the grounds set out on the face of the application and is supported by the affidavit of the Defendant, sworn on 26th July, 2025. According to the Defendant, the suit was instituted by the 2nd Plaintiff, on allegations that he had mismanaged the affairs if the 1st Plaintiff. He contends that, on various dates in the June and July 2025, the 2nd Plaintiff fraudulently transferred some of the 1st Plaintiff’s assets, including motor vehicles registration numbers KCZ 648Z and KDL 560Z, without his consent and in the absence of any valid company resolution authorizing such transfers. 3.The Defendant avers that he reasonably believes the transfers were procured through fraud and that resolutions purportedly authorizing the transfers were forged to facilitate the impugned transactions. As a consequence, he caused caveats to be placed against the said motor vehicles through the National Transport and Safety Authority (NTSA). He further deposes that, notwithstanding his position as a director of the 1st Plaintiff, he was denied access to the company’s domain system and email accounts. He states that he lodged a complaint with the domain host, Africa Kenya, but was unsuccessful in securing restoration of access. 4.The Defendant further asserts that, by virtue of his office as a director of the 1st Plaintiff, he is entitled to access the company’s domain system and email accounts. He contends that the restrictions imposed upon him have significantly disrupted the operations of the 1st Plaintiff by undermining management oversight and adversely affecting the company’s relationship with its clients. It is on the basis of the foregoing matters that the Defendant urges the court to allow the application. 5.The Plaintiffs opposed the application through a Notice of Preliminary Objection dated 27th September, 2025. In the said objection, they urged the court to strike out the application on the ground that it lacked jurisdiction to entertain the same by virtue of Section 7 of the Civil Procedure Act, the issues raised having already been conclusively determined. 6.In addition, the Plaintiffs relied on the replying affidavit of the 2nd Plaintiff, a director of the 1st Plaintiff, sworn on 2nd February, 2026. He deposed that this suit was commenced by way of an Originating Summons dated 28th October, 2024, and was subsequently determined by a ruling delivered on 30th July, 2025, after the court had considered the evidence and arguments presented by the parties. On that basis, the 2nd Plaintiff contended that the court had become functus officio, all the issues in dispute having been fully and finally determined. 7.The Plaintiffs further contended that the reliefs sought fell outside the scope of Section 280 of the Companies Act. According to them, the application improperly invited the court to interfere with the internal affairs and management of the 1st Plaintiff. The 2nd Plaintiff deposed that although the Defendant had indeed been denied access to the company’s domain system and email accounts, that decision arose from internal corporate processes and was not a matter warranting judicial intervention. In any event, it was deposed that access to the domain system was controlled by an external service provider and not by the Plaintiffs. 8.The deponent further averred that the remaining orders sought were incapable of being granted at an interlocutory stage, as they were final in nature. By way of background, he explained that, following consultations with and without any objection from the Defendant or the other directors, the 1st Plaintiff resolved to acquire motor vehicles for various individuals associated with the company. Consequently, motor vehicle registration number KDA 506S was acquired for the Defendant, KDB 564T for Annah Wanyoro, KDL 560Z and KCZ 648X for the 2nd Plaintiff, and KDB 432Z for the 1st Plaintiff. 9.The deponent recalled that on 29th April, 2022, the Defendant was involved in a road traffic accident which resulted in the loss of the motor vehicle allocated to him. He stated that the Defendant was subsequently compensated by the insurer and that the Plaintiffs did not interfere with that process in any manner. He further deposed that upon her departure from the company, Annah Wanyoro similarly had the motor vehicle allocated to her transferred into her name. It was therefore his position that the transfer of the motor vehicles allocated to the 2nd Plaintiff was consistent with the company’s established practice. He maintained that the allegations of fraud and impropriety levelled by the Defendant were unsubstantiated, as the impugned transfers did not occasion any loss or diversion of the company’s funds or assets. 10.The deponent further stated that since the delivery of the ruling on 30th July, 2025, the Defendant had failed to actively participate in the management and affairs of the 1st Plaintiff. He additionally alleged that the Defendant had been misusing a company motor vehicle. For those reasons, he urged the Court to find that the allegations advanced by the Defendant lacked factual and legal foundation and to dismiss the application with costs. 11.The application was canvassed by way of written submissions. The Defendant filed his submissions dated 22nd October, 2025. Upon reviewing the same, it became apparent that the Defendant sought to introduce matters and factual allegations that were not contained in either the application or the supporting affidavit. It is trite that submissions are intended to highlight and reinforce a party’s pleaded case and evidence; they do not constitute evidence and cannot be used to introduce new facts or causes of action. Accordingly, to the extent that the Defendant's submissions raise matters outside the pleadings and affidavits on record, this court shall disregard them. 12.On the merits of the application, the Defendant submitted that the 2nd Plaintiff unlawfully transferred motor vehicle registration numbers KCZ 648X and KDL 560Z from the 1st Plaintiff into his own name, contrary to the interests of the company and its directors. He reiterated the contents of his application and maintained that the impugned transfers were unauthorized, ultra vires, and tainted with fraud. He further submitted that, as a director of the 1st Plaintiff, he ought not to have been denied access to the company’s domain system and email accounts. Finally, with regard to the doctrine of res judicata, he argued that the same was inapplicable as the issues raised in the present application were distinct and had never been directly or substantially in issue in the proceedings that culminated in the ruling of 30th July, 2025. He accordingly urged the Court to allow the application. 13.The Plaintiffs filed joint written submissions and a list of authorities, both dated 23rd March, 2026. In those submissions, they argued that this Court lacks jurisdiction to entertain the present application by reason of the doctrines of res judicata and functus officio. They relied on the averments contained in their pleadings, affidavits, and the authorities cited in support of the proposition that the issues raised by the Defendant had already been conclusively determined and could not be re-litigated before the same court. 14.On the merits of the application, the Plaintiffs submitted that the remedies sought are not among those contemplated under Section 280 of the Companies Act. They maintained that the Defendant had failed to satisfy the legal threshold for the grant of the orders sought and that the application improperly invited the court to interfere with the internal management and affairs of the 1st Plaintiff. The Plaintiffs further contended that the allegations of fraud, illegality, and impropriety advanced by the Defendant were unsupported by evidence and devoid of any legal foundation. Consequently, they urged the court to dismiss the application with costs. 15.I have carefully considered the application, the affidavit in support thereof, the replying affidavit, the Notice of Preliminary Objection, the parties’ respective written submissions, and the authorities cited. The Defendant principally seeks orders nullifying the transfer of motor vehicles registration numbers KCZ 648Z and KDL 560Z from the 1st Plaintiff to the 2nd Plaintiff and directing that ownership thereof be reverted to the 1st Plaintiff. 16.At the outset, it is apparent that the Defendant has invoked provisions of law that bear no relevance to the reliefs sought. In particular, Order 42, rule 6(1) of the Civil Procedure Rules governs applications for stay of execution or stay of proceedings pending appeal. The Defendant does not seek either relief. His grievance concerns the legality of the transfer of certain assets and the restoration of ownership thereof. Consequently, the provisions of Order 42, rule 6(1) are inapplicable to the present application. 17.Similarly, reliance on Order 43, rule 1(u) of the Civil Procedure Rules is misplaced. That provision merely identifies orders from which an appeal may lie as of right and does not confer jurisdiction upon the court to grant the substantive remedies sought. The application is therefore not properly anchored upon the provisions cited. 18.The substantive question for determination therefore, is whether this court can, at this stage, issue orders nullifying the transfer of the subject motor vehicles and directing their re-transfer to the 1st Plaintiff. 19.The law is settled that courts exercise great caution before granting mandatory orders at an interlocutory stage. In Kenya Airports Authority v New Jambo Taxis Ltd, Civil Appeal No. 29 of 1997, the Court of Appeal, adopting the reasoning of Megarry J. in Shepherd Homes Ltd v Sandham [1979] 3 WLR 348, emphasized that:“An order which results in granting a major relief claimed in the suit, which may not be granted at final hearing, ought not to be granted at an interlocutory stage.” 20.The rationale underlying that principle is self-evident. Interlocutory proceedings are intended to preserve the subject matter of litigation pending final determination and not to conclusively determine substantive rights before parties have had the opportunity to fully ventilate their cases. 21.The Court of Appeal further cited with approval the following passage from Halsbury’s Laws of England, Vol. 24, paragraph 948:“A mandatory injunction can be granted on an interlocutory application, as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the Defendant attempts to steal a march on the Plaintiff, a mandatory injunction will be granted on an interlocutory application.” 22.The threshold for granting such relief is therefore deliberately high. The Applicant must demonstrate exceptional circumstances and establish a clear and undisputed case warranting immediate intervention by the court. 23.Applying the foregoing principles to the present case, I am not persuaded that the Defendant has met the requisite threshold. The orders sought are not merely preservatory in nature; they are substantive and final. Were this Court to nullify the transfers and direct the restoration of ownership of the motor vehicles to the 1st Plaintiff, the very issues raised by the Defendant would stand conclusively determined. There would be little, if anything, left for adjudication. 24.Moreover, the allegations of fraud, forgery of resolutions, lack of authority, and impropriety in the transfer process are heavily contested. Such allegations are serious in nature and call for rigorous evidentiary examination. They cannot be determined on the basis of affidavit evidence alone, particularly where the facts are disputed. The issues raised require a full evidentiary inquiry, including the production and testing of documentary evidence and, where necessary, oral testimony. To grant the orders sought at this stage would be to make definitive findings without affording the parties an opportunity to fully ventilate their respective positions. 25.I therefore find that the reliefs sought are incapable of being granted at an interlocutory stage. 26.There is yet another, and more fundamental impediment to the Defendant’s application. It is common ground that this court rendered its decision in this matter on 30th July, 2025, thereby determining the dispute that had been placed before it. Upon delivery of that decision, the court became functus officio. 27.The doctrine of functus officio was succinctly explained by the Court of Appeal in Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR, where the Court stated:“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon. It is a doctrine that has been recognized in the common law tradition from as long ago as the latter part of the 19th Century. In the Canadian case of Chandler vs Alberta Association of Architects [1989] 2 S.C.R. 848, Sopinka J. traced the origins of the doctrines as follows (at p. 860);“The general rule that a final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal In re St. Nazaire Co., (1879), 12 Ch. D. 88. The basis for it was that the power to rehear was transferred by the Judicature Acts to the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions: 1.Where there had been a slip in drawing it up, and, 2.Where there was an error in expressing the manifest intention of the court. See Paper Machinery Ltd. vs. J.O. Rose Engineering Corp., [1934] S.C.R. 186.” 28.In the present case, the Defendant has not demonstrated that the application falls within any of the recognized exceptions to the doctrine. He does not seek correction of a clerical error, clarification of an ambiguous order, or rectification of an accidental omission. Instead, he seeks substantive reliefs that would require the court to revisit matters arising from the parties’ dispute and make fresh determinations regarding ownership of assets and the legality of corporate actions. 29.To entertain such an application would amount to reopening a matter that has already been conclusively determined. That is precisely what the doctrine of functus officio seeks to prevent in order to uphold the principles of finality in litigation and certainty in judicial decision-making. Accordingly, I find that this Court lacks jurisdiction to entertain the application. 30.In the result, and for the reasons set out above, I find that the Defendant's application is both procedurally untenable and substantively devoid of merit. The reliefs sought are final in nature and incapable of being granted at an interlocutory stage. Furthermore, this Court became functus officio upon delivery of its ruling on 30th July, 2025, and therefore lacks jurisdiction to revisit the matters now sought to be raised. 31.Accordingly, the Notice of Motion dated 25th July, 2025, is dismissed with costs to the Plaintiffs. DELIVERED, DATED AND SIGNED VIRTUALLY THIS 10TH DAY OF JULY, 2026.RHODA RUTTOJUDGECourt Assistant: WabwireMr. Nyoroku holding brief for Mr. Etemesi for 1st and 2nd Plaintiff/Respondent