https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9114

Gheewala (Suing as the Executrix of the Estate of Chandrakant Shamjibhai Gheewala) & 2 others v Gheewala & another (Commercial Case E075 of 2024) [2026] KEHC 9114 (KLR) (Commercial and Tax) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 9114 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E075 of 2024 MN Mwangi, J June 12, 2026 IN THE MATTER OF NYAKU LIMITED -AND- IN THE MATTER OF AN APPLICATION BY A MEMBER OF THE COMPANY FOR PROTECTION AGAINST UNFAIR PREJUDICE -AND- IN THE MATTER OF CONTRAVENTION OF THE COMPANIES ACT NO. 17 OF 2015 -AND- IN THE MATTER OF CONTRAVENTION OF THE ARTICLES OF ASSOCIATION OF NYAKU LIMITED -AND- IN THE MATTER OF BREACH OF TRUST BY A TRUSTEE HOLDING SHARES IN TRUST Between Mukta Chandrakant Gheewala (Suing as the Executrix of the Estate of Chandrakant Shamjibhai Gheewala) 1st Plaintiff Shrikesh Gheewala 2nd Plaintiff Mamta Gheewala 3rd Plaintiff and Eleshkumar Chandrakant Gheewala 1st Defendant Nyacity Limited 2nd Defendant Ruling 1.The 2nd defendant filed a Notice of Motion application dated 23rd May 2025 pursuant to the provisions of Sections 1A, 1B, 3, 3A, 80 & 63(c) of the Civil Procedure Act, Order 42 Rule 6(1) & Order 45 Rule 1 of the Civil Procedure Rules, Articles 47(1) & (2), 48, 50(1) & (4) and 159(2) of the Constitution, and all other enabling provisions of the law. The 2nd defendant seeks an order that the Ruling delivered on 28th March 2025, particularly the subsequent Orders granting temporary injunctions, be set aside, interpreted, and amended to allow all parties to seek mutual approval in the management, operations, and affairs of the companies. 2.The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Mr. Eleshkumar Chandrakant Gheewala, a Director and one of the major Shareholders of the 2nd defendant. Mr. Eleshkumar averred that this Court delivered a Ruling prohibiting the defendants from calling or holding any General or Board meetings without the plaintiffs’ consent and restraining the majority shareholders from interfering with the company’s management without the Court’s approval. He contended that the 2nd defendant now seeks interpretation and review of those Orders, which he asserted have become impractical in the company’s day-to-day operations and have caused confusion in management. He deposed that the 2nd plaintiff who was reinstated as a Director, has assumed exclusive control, sidelining the 1st defendant from management and decision-making on the belief that the Ruling curtailed his (1st defendant’s) authority. 3.Mr. Eleshkumar claimed that the 2nd plaintiff has leased the company’s property being Pent Office Unit No. 1, erected on L.R. No. I.R. 870/1/575 and registered as L.R. 132200/2, to Office Suites Developers Limited without a Board resolution, taken possession of the company by breaking into its premises, and received rent and mesne profits into his personal account. He further stated that the 2nd plaintiff wrote to the 2nd defendant’s Counsel asserting that the 1st plaintiff could no longer interfere with the management of Nyaku Limited and purporting to void Counsel’s appointment. Mr. Eleshkumar averred that the company has since instituted Milimani ELC No. E166 of 2025 against the said tenant and is relying on this Court’s Ruling to assert authority and exclude the 1st defendant from participating in Board decisions. 4.In opposition to the application herein, the plaintiffs filed a replying affidavit sworn on 10th September 2025 by Mr. Shrikesh Gheewala, the 2nd plaintiff herein and a Director of Nyaku Limited. Mr. Shrikesh averred that the instant application is incurably defective and ought to be struck out for failure to comply with procedural requirements, including being brought in the wrong form and since the law firm of Ike Owiti & Company Advocates has purported to act for Nyaku Limited and other family companies without duly passed resolutions. 5.He deposed that any stalemate within the Company has been caused by the 1st defendant through his actions, including issuing an impugned Notice dated 30th January 2024 convening an Annual General Meeting on short notice, filing proceedings to rectify the Company Register in Commercial Miscellaneous Application No. E429 of 2022, instituting ELC No. E001 of 2024 to evict a tenant from Empress Office Suites, despite the premises having been allocated to him under the Mediation Settlement Agreement dated 31st July 2019; and the Court Order of 16th October 2019 and filing ELC No. E166 of 2025 against Office Suites Developers without involving him as co-director, contrary to the Court’s Orders restraining him from interfering with the management and affairs of Nyaku Limited without the plaintiffs’ approval or further Court Orders. Mr. Shrikesh further stated that the 1st defendant also attempted to irregularly appoint Prafulla Eleshkumar Gheewala as a Director, which gave rise to High Court Miscellaneous Application No. E361 of 2023, where the Court found the appointment to be fraudulent, irregular, and illegal. 6.In a rejoinder, the 2nd defendant filed a supplementary affidavit sworn on 1st October 2025 by Mr. Eleshkumar Chandrakant Gheewala, a Director and one of the major Shareholders of the 2nd defendant. Mr. Eleshkumar deposed that Article 159(2)(d) of the Constitution obliges Courts to administer justice without undue regard to procedural technicalities, and the form in which the present application was brought does not defeat the substantive prayers sought. He averred that this Court’s Ruling delivered on 28th March 2025 issued Orders that have effectively crippled the company’s operations and necessitated the instant application. 7.He asserted that the law firm of Ike Owiti & Company Advocates was duly appointed to represent the 2nd defendant. He maintained that there is a need for proper interpretation of the Ruling delivered on 28th March 2025, due to ambiguity that has allowed the plaintiffs to misuse it in proceedings before different Courts. Mr. Eleshkumar stated that this Court has already pronounced itself on the Annual General Meeting held on 20th February 2024 and declared it to have been legally convened. 8.The instant application was canvassed by way of written submissions. The 2nd defendant’s submissions were filed on 9th October 2025 by the law firm of Ike Owiti & Company Advocates, while the plaintiffs’ submissions were filed by the law firm of Kimamo Kuria Advocates on 10th November 2025. 9.Mr. Owiti, learned Counsel for the 2nd defendant relied on the case of Republic v Vice Chancellor Jomo Kenyatta University of Agriculture and Technology; Mwathi & another (Ex parte) [2008] KEHC 2252 (KLR) and submitted that Article 50(1) of the Constitution guarantees every person the right to have any dispute resolved in a fair and public hearing before a Court or independent Tribunal, while Article 47(1) guarantees the right to administrative action that is expeditious, lawful, reasonable and procedurally fair. 10.He referred to the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules and the Court of Appeal case of National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR), and contended that sufficient cause exists to warrant interpretation and review of the Ruling delivered on 28th March 2025. Counsel argued that the said Ruling has created confusion as to the management of the daily operations of the suit company, effectively sidelining the 1st defendant from management and decision-making and granting the plaintiffs unchecked operational control. 11.Mr. Kimamo Kuria, learned Counsel for the plaintiff submittedthatthe instant applicationis incurably defective and ought to be struck out for failure to comply with mandatory procedural requirements, having been brought by way of a Notice of Motion instead of a Chamber Summons, and further, for having been filed by the law firm of Ike Owiti & Company Advocates without a duly passed company resolution authorizing them to act on behalf of Nyaku Limited. Counsel cited the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) and contended that the threshold under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, has not been met. 12.He argued that no new evidence has been identified, no specific error apparent on the face of the record has been demonstrated, and no sufficient reason analogous to the statutory grounds has been established to warrant a review of the impugned Ruling. Counsel asserted that the 2nd defendant’s allegations would require elaborate argument and reasoning and therefore do not qualify as errors apparent on the face of the record. Mr. Kimamo stated that the application herein contravenes the very Orders issued on 28th March 2025, as the 1st defendant filed it without seeking the plaintiffs’ approval. Analysis and Determination. 13.I have considered the instant application, the grounds on the face of it and the affidavits filed in support thereof. I have also considered the replying affidavit filed by the plaintiffs and the written submissions by Counsel for the parties. The issues that arise for determination are:-i.Whether the application herein is fatally defective for having been brought in the wrong form and for having been filed by an Advocate who was appointed in the absence of a Board resolution; andii.Whether this Court’s Ruling delivered on 28th March 2025 should be set aside, interpreted, and amended to allow all parties to seek mutual approval in the management, operations, and affairs of the companies. Whether the application herein is fatally defective for having been brought in the wrong form and for having been filed by an Advocate who was appointed in the absence of a Board resolution. 14.The plaintiffs’ case is that thatthe instant applicationis incurably defective and ought to be struck out for failure to comply with mandatory procedural requirements, having been brought by way of a Notice of Motion instead of a Chamber Summons, and for having been filed by the law firm of Ike Owiti & Company Advocates without a duly passed company resolution authorizing them to act on behalf of Nyaku Limited. 15.On perusal of the instant application, it is evident that it seeks an order for review of this Court’s Ruling delivered on 28th March 2025, under to the provisions of Order 45 Rule 1 of the Civil Procedure Rules, 2010. Under the current Civil Procedure Rules, applications to the Court unless expressly required otherwise, are made by Notice of Motion pursuant to the provisions of Order 51 Rule 1 of the Civil Procedure Rules. On examination of the provisions of Order 45 Rule 1 2010, it is manifest that it does not prescribe Chamber Summons as the mode of bringing a review application. I am therefore not persuaded that the application herein has been brought in the wrong format. 16.It is not disputed that the law firm of Ike Owiti & Company Advocates was appointed to act for the 2nd defendant without a formal Board resolution. Such an appointment may however be ratified at any stage before the hearing of the main suit, and this procedural defect alone does not warrant denial of representation. 17.Further, this Court notes that although from the company’s CR-12 dated 16th February 2024 annexed to the affidavit in support of the instant application, Nyaku Limited has three Directors, the plaintiffs challenge the appointment of Prafulla Eleshkumar Gheewala as a Director of the Company. Given that only two directors are recognized and they are in conflict, and that the Ruling of 28th March 2025 has affected the company’s governance, insisting on a formal resolution as a precondition to appoint Counsel to act for the company would elevate procedural technicality over substantive justice contrary to the provisions of Article 159(2)(d) of the Constitution. Additionally, it is evident from the affidavits filed in support and in opposition to the instant application that the plaintiffs have neither alleged nor demonstrated any misconduct and/or conduct unbecoming on the part of the said law firm, for it to be restrained from acting for the intended 2nd defendant. 18.Accordingly, this Court finds that the law firm of Ike Owiti & Company Advocates is properly on record for Nyaku Limited. 19.This Court holds that the application herein is not fatally defective for being brought in the wrong format or for having been filed by an Advocate appointed without a Board resolution. Whether this Court’s Ruling delivered on 28th March 2025 should be set aside, interpreted, and amended to allow all parties to seek mutual approval in the management, operations, and affairs of the companies. 20.In interpretation of the Ruling delivered on 28th March 2025, this Court suspended all resolutions passed at the Extraordinary General Meeting of 17th October 2024 and halted the removal of the 2nd plaintiff as a Director of Nyaku Limited, thereby maintaining his directorship status. The defendants were also restrained from interfering with the 2nd plaintiff in the performance of his duties and from acting on any resolutions arising from the said meeting. Further, the defendants were prohibited from convening or holding any General or Board meetings without the plaintiffs’ consent, and the majority shareholders were restrained from interfering with the management of Nyaku Limited without prior Court approval. 21.The above was as a result of the Court’s finding that although the defendants were majority shareholders entitled to convene meetings, there was no satisfactory proof that the 2nd plaintiff had been served with the Notice of the Extraordinary General Meeting of 17th October 2024, as required under Sections 139 and 141 of the Companies Act, 2015, thereby infringing on his statutory right to be notified, make representations, and be heard prior to removal as a Director. This procedural breach established a prima facie case with a probability of success. 22.The defendant averred that the 2nd plaintiff has misconstrued and improperly relied on the Ruling delivered on 28th March 2025 to justify unilateral decision-making within Nyaku Limited, thereby excluding the 1st defendant from the management, governance, and decision-making processes of the company. For the avoidance of doubt, the Ruling of 28th March 2025 did not confer upon the 2nd plaintiff exclusive authority to manage, govern, or make decisions on behalf of Nyaku Limited to the exclusion of the 1st defendant. To the contrary, the Court’s Orders prohibited further corporate actions without consent or Court approval. 23.As to whether this Court can review, set aside and/or amend the said Ruling, the Court’s jurisdiction to review its own decisions is circumscribed by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010, which provide as hereunder:-80.Any person who considers himself aggrieved-by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or by a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.Order 45 Rule 11.Any person considering himself aggrieved-a.By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay. 24.The Court in the case of Alpha Fine Foods Limited v Horeca Kenya Limited & 4 others [2021] KEHC 4068 (KLR), in dismissing an application for review held that: -… section 80 prescribes the power of review while Order 45 stipulates the rules. However, the rules limit the grounds for evaluating requests for review. Simply put, there are definite limits to the exercise of the power of review. The rules prescribe the jurisdiction and scope of review. They limit review to the following grounds:a.Discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;b.On account of some mistake or error apparent on the face of the record, orc.For any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay. 25.A Court’s jurisdiction to review its own decisions is limited and is not intended to afford a party an opportunity to re-argue or appeal against a decision merely because it is dissatisfied with it. 26.The 2nd defendant company contended that the impugned Ruling has occasioned practical difficulties in the intended 2nd defendant corporate decision-making and has effectively sidelined certain Directors. I am however not persuaded that such operational challenges amount to a mistake or error apparent on the face of the record. This Court is persuaded that the prayer seeking amendment and/or adjustment of the Orders so as to permit management decisions by mutual consent falls outside the narrow confines of review jurisdiction, and in substance, it constitutes a request to vary or reconsider the Orders previously granted rather than to correct an obvious error apparent on the record, or to review for any other sufficient reason. 27.Accordingly, this Court is not persuaded that the 2nd defendant has made out a case to warrant an order for review and/or to set aside the impugned Ruling. 28.In the end, this Court finds that the 2nd defendant’s application dated 23rd May 2025 is not merited. It is hereby dismissed. Costs shall be in the cause.It is so ordered. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 12TH DAY OF JUNE 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:-Mr. Ike Owiti for the 2nd defendant/applicantMs Kale for Mr. Nyaanga for the 1st defendantMr. Kimamo Kuria for the plaintiffsMs Julia – Court Assistant.