https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10156

Kanken Connect USA Board of Directors & 3 others v Kanken Connect Literacy Foundation & 4 others (Miscellaneous Application E009 of 2025) [2026] KEHC 10156 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10156 (KLR) Republic of Kenya In the High Court at Eldoret Miscellaneous Application E009 of 2025 E Ominde, J July 9, 2026 IN THE MATTER OF THE COMPANIES ACT NO. 17 OF 2015 AND IN THE MATTER OF AN APPLICATION FOR RECTIIFCATION OF THE REGOSTER OF DIRECTORS OF KANKEN CONNECT KENYA Between Kanken Connect USA Board of Directors 1st Applicant Tiffany Ninemire 2nd Applicant Holy Palacio 3rd Applicant Daniel Dugas 4th Applicant and Kanken Connect Literacy Foundation 1st Respondent Joshua Kibet Choge 2nd Respondent Caleb Kipkoskey Choge 3rd Respondent Wilson Kimeli 4th Respondent and Jordan Choge Interested Party Ruling 1.By a Notice of Motion dated 3rd May 2025 brought under the provisions of Section 103 and 780 of the Companies Act, 2015 and Article 159 of the Constitution of Kenya 2010, and all other enabling provisions of the Law, the Applicants seek orders that:1.Spent.2.Spent.3.That an interim order be issued restraining the Registrar of Companies from effecting any changes to the 1st Respondent’s register of directors or members pending determination of this application.4.That the register of members of Kanken Connect Literacy Foundation be rectified to include the name of the Applicants, Tifanny Ninemire, Holy Palacio And Daniel Dugas, As Members of the 1st Respondent.5.That the Honorable Court be pleased to order the rectification of the register of directors of KanKen Connect Literacy Foundation to include the name of the Applicants, Tiffany Ninemire, Holy Palacio And Daniel Dugas, As Directors of the 1st Respondent.6.That a declaration that the omission of the 2nd Applicant's name from the register of directors was unlawful, oppressive, and a breach of fiduciary obligations owed to the Applicants.7.That an order compelling the Registrar of Companies to issue an amended CR12 reflecting the Applicants as directors and Members of KanKen Connect Literacy Foundation.8.That costs of this application be borne by the Respondents. 2.The Application is premised on the grounds of the face of it and is supported by the Affidavit sworn by the 2nd Applicant, Tifanny Ninemire of even date. 3.The 2nd Applicant deposed that Kanken Connect Inc., established in July 29, 2019 is a charitable organization formed to construct libraries for children and that she is the founder, with the 3rd and 4th Applicants as board members. That in 2023, she sought to fund libraries in Kenya and that for reasons that Kanken Connect Inc. was not registered locally, she donated container libraries via Forward Advantage International Foundation. 4.The 2nd Applicant further deposed that she engaged the 2nd and 3rd Respondent to register a Kenyan company limited by guarantee, relying on their knowledge of the Kenyan legal framework and that because at the time the 3rd Respondent was also a member of the 1st Applicant thus the Board's decision was to fully depend on him. 5.The 2nd Applicant asserts that on 12th October 2021, the 2nd and 3rd Respondents advised that non-Kenyans could not be members or directors of a company limited by guarantee and undertook to register Kanken Connect Literacy Foundation, and the 1st Respondent was to fulfill their objectives. The 2nd Applicant further asserts that relying on this representation, the Applicants provided Kshs.23 million towards the construction of the 1st Respondent’s Library and purchase of the piece of land on which the library, some classes and dormitory were to be constructed. 6.She further deposed that they have also been paying the employees of the 1st Respondent and addition, the 2nd Applicant deposed that on said 12th October 2021, the 2nd, 3rd and 4th Respondent registered the 1st Respondent while omitting the Applicants from the register of members and directors, contrary to their undertaking. The 2nd Applicant contended that the 2nd and 3rd Respondents recommended their own relative, one Jordan Choge, as the contractor and the said Choge misappropriated funds and delivered substandard work thus stalling the project. 7.The 2nd Applicant further deposed that the 1st Applicant’s Board members, through her, contacted a lawyer who was detailed to expand the board the lawyer failed to carry out the agreed instructions. The 2nd Applicant maintained that the Respondents did not object to the expansion of the board and in fact provided all the necessary documentations required for the process including signed minutes. 8.The 2nd Applicant further deposed that the Applicants' requests for membership and directorship were refused by the 2nd Respondent, and the 3rd Respondent disengaged. 9.The 2nd Applicant contends that the Applicants' omission from the 1st Respondent’s register is unlawful and oppressive thus entitling them to an order of rectification under Section 103 of the Companies Act, 2015 and further, that the Respondents hold their membership and directorship under a constructive trust for the Applicants. That the Applicants' contribution of Kshs.23 million, induced by the Respondents' promise to perform the objectives of the 1st Respondent and their vision, makes it unconscionable for them to retain sole control of the 1st Respondent. 10.The 2nd Applicant further contends that the Respondents are estopped from denying their membership, and that the 2nd and 3rd Respondents' false advice that non-Kenyans could not be members induced the Applicants to fund the 1st Respondent creates an estoppel. 11.The 2nd Applicant maintained that the Respondents' control of the 1st Respondent’s assets constitutes unjust enrichment. She contends that the Respondents' retention of the 1st Respondent’s assets, funded by the Applicants' Kshs. 23 million, without granting them membership, is unjust and requires an equitable relief. 12.According to the 2nd Applicant, the Respondents owed a fiduciary duty to the Applicants. She maintained that the Respondents' undertaking to register the 1st Respondent on their behalf, followed by their misrepresentation and exclusion, breached this duty, harming their equitable interest. 13.The 2nd Applicant deposed that the equitable maxim "equity will not suffer a wrong to be without a remedy" applies. She contends that the Applicants' exclusion from the register, despite their contributions and the Respondents' promise, is a wrong that can only be remedied by rectification under Section 103 aforesaid. 14.The 2nd Applicant further contends that the Respondents' actions are unfairly prejudicial under Section 780 of the Companies Act for reasons that the Respondents' exclusion of the Applicants, who funded the 1st Respondent’s charitable objectives, prejudices their equitable interest as intended members. Further, the 2nd Applicant deposed that post-incorporation, the Respondents repeatedly contacted her for additional funds thus treating the Applicants as integral to the 1st Respondent’s operations, akin to members. She added that this conduct acknowledges their equitable interest, yet they have been excluded from the register. 15.The 2nd Applicant deposed that prior misappropriation of Kshs.13 million by Jordan Choge who was recommended by the 2nd and 3rd Respondents, risks further dissipation, necessitating an interim injunction to freeze the 1st Respondent's accounts, save for Kshs.400,000/= monthly withdrawals to cover payroll, protect employees' jobs while safeguarding charitable funds. 16.The 2nd Applicant maintained that the primary intent behind her donation to Kanken Connect Kenya was to provide educational resources to the underserved communities in Kenya. She added that the organization was meant to build a library and community center in Saniak community with the ultimate goal of benefiting the public by enhancing educational opportunities, improving literacy, and contributing to the socio-economic development of the community and thus was specifically intended to serve the public good by addressing the critical needs of the local community, as articulated in various communications and agreements between herself and the board members. 17.She asserts that however, due to the mismanagement of the organization, which has resulted in a lack of transparency, the diversion of funds, and the exclusion of legitimate stakeholders such as herself, the core public benefit of this project is now at risk. That should this situation continue unchecked, the project's ability to serve the community will be severely compromised, affecting not only her charitable intentions but also the educational and socio-economic advancement of the local population. 18.That the mismanagement by the current board and the exclusion of legitimate contributors from the decision-making process has halted progress on the construction of the library and community center, thus denying the local population access to the resources they were promised. She claimed that this denial directly undermines the public benefit of the charitable project and added that if allowed to continue, the mismanagement will not only waste the funds donated for this specific purpose but will deny the local community the benefits they are entitled to under Kenyan charity law. She asserts that this is a direct violation of both the public benefit test and the organization's statutory obligations to serve the community. 19.The 2nd Applicant deponed that it is well-established in Kenyan law that charitable organizations must operate in a manner that upholds their charitable purpose and ensures that donations are used for the public benefit. She reiterated that potential changes to the register of members or directors could prejudice their equitable rights thus justifying an interim order restraining the Registrar of Companies from effecting changes. Lastly, the 2nd Applicant urged that the Applicants seek to balance the 1st Respondent's charitable operations with accountability, hence the limited payroll withdrawal allowance to sustain employment. 2nd Respondent’s Replying Affidavit 20.The Application is opposed by the Respondents vide the Replying Affidavit sworn by Joshua Kibet Choge, the 2nd Respondent and a member and Director of the 1st Respondent, Kanken Connect Literacy Foundation. Therein, the 2nd Respondent deposed that the Application is fatally defective, an abuse of the court process and lacks merit and that the orders sought therein should be disallowed with costs. 21.The 2nd Respondent contends that whereas the Applicants are seeking final orders, they have approached this Honorable Court by way of a Notice of Motion Application without any suit filed before the Court. He maintained that this is an abuse of the Court process because issuance of final Orders would only be premised on a full hearing of the parties to ascertain the truth, veracity of the evidence given, and for the matter to be fully determined which essentially requires the filing of a main suit. The 2nd Respondent pointed out that in the present Application, there is no Plaint on Court's records or any that has been served upon the Respondents deserving of the orders sought. 22.The 2nd Respondent maintained that an interim injunction is only issued to maintain the substratum of the subject matter to be determined in the main suit and cannot be issued where there is no suit in place. That this being the case, the present application bad in law. Further, he contended that an interim injunction cannot automatically mutate to a permanent injunction if there are no such prayers made by a party either in its own application or in the main suit. He therefore contended that in the present application, there is no such a prayer and so the order sought therefore unsustainable. 23.The 2nd Respondent asserts that this is for reasons that it is a well settled principle of law that the sole intention of seeking an interim injunction-otherwise known as an interlocutory injunction is to maintain the substratum of the case for fear that irreparable harm may occur before the full resolution of the dispute. He urged that in the present application, particularly because the facts are disputed and a resolution can only be achieved if parties are fully heard, the instant application, filed as a Miscellaneous application, without any suit filed, is incompetent is fatally defective and is an abuse of the Court process. That this is for reasons that miscellaneous applications cannot be used to circumvent statutory procedures or to commence proceedings where a substantive suit is required. The 2nd Respondent cited Order 40 Rule 1 of the Civil Procedure Rules in this regard. 24.The 2nd Respondent further deposed that the 1st Respondent is a Company Limited by Guarantee incorporated on 12th October 2021 under the Companies Act 2015 with its members and Directors mandated to discharge their duties under the aforesaid Act and in accordance with the Memorandum and Articles of Association of the 1st Respondent. 25.That the 1st Respondent at the time of its incorporation adopted the Model Articles for Companies Limited by Guarantee which gives powers to the Directors to run and manage the affairs of the 1st Respondent and not under the directions of the Applicants. That indeed Article 2 of the Model Articles bestows the Directors with the powers and general authority to do so. 26.That in this regard, the 1st Respondent is a separate legal entity distinct from the 1st Applicant and the legal framework establishing and governing the 1st Respondent is distinct and separate from the legal framework establishing and governing the 1st Applicant or any of its affiliated entities or persons and therefore the 1st Respondent cannot be viewed or portrayed to be legally related to the 1st Applicant and bound to act pursuant to the directions of the Applicants. 27.The 2nd Respondent claims that the decision to register the 1st Respondent was arrived at following their common vision with the 2nd Applicant to collaborate and engage in activities that promote literacy in Kenya through the support of the 1st Applicant but nothing in the arrangement limited the 1st Respondent from making its own independent decisions and collaborating with other likeminded organizations. The 2nd Respondent further claims that the relationship was thus mutual and did not negate the independence of the 1st Respondent to operate within the applicable legal framework that governs its operations in Kenya. 28.The 2nd Respondent asserts that the allegation by the 2nd Applicant are misleading. He stated that whereas the 2nd Applicant has referred to her own email communication annexed as "TN-3" purporting that the same was a communication between herself and the 2nd and 3rd Respondents, the email in reference shows that it is a communication between herself and her Advocate. He denied that 2nd Applicant was misled by the Respondents and added that the 2nd Applicant had the right and full autonomy to seek independent legal advice. 29.The 2nd Respondent asserts that the 2nd Applicant entered into an arrangement with the Interested Party based on their friendship and she engaged the Interested party independently and directly through a separate entity (Leah & Moses Ltd) to carryout construction for the 1st Respondent. He claimed that the 2nd Applicant did not rely on any representation by the Respondents in doing so. 30.The 2nd Respondent further deposed that at no time did the Applicants send any construction moneys for the library to the Respondents and denied that the alleged Kshs.23 million was received by the Respondents. He claimed that he only received a payment from the 1st Applicant towards acquisition of his piece of land which the 1st Applicant agreed to fund on behalf of the 1st Respondent. 31.The 2nd Respondent further maintained that the 1st Respondent did not make any payments to the 2nd Respondent for the land and asserts that it was indeed the 1st Applicant through the 2nd Applicant who offered to donate funds, negotiated and made payments towards the land which the 2nd Respondent had offered at a subsidized price as part of his contribution to the charity. He added that a sale agreement was thereafter drawn to set out the terms and conditions of the sale between the 1st Respondent and the 2nd Respondent. 32.The 2nd Respondent annexed exhibit marked "TN-4" which he asserts can clearly guide the court to verify the contents. He further deposed that the said Annexure "TN-4" contains other payments made to parties who are not the Respondents herein and the Applicant has annexed the same to mislead the Court. He contended that the said misleading payments are as follows: -a.On or about 20th June 2023, USD. 5,400 was transferred by the 1st Applicant and/or its agent to one Katie Thompson and the reason for funds transfer is marked as "for purchase of furniture”.b.On or about 22nd February 2023, USD. 6,500 was transferred by the 1st Applicant to a beneficiary known as Underground Village and the reason for funds transfer given is "Investment".c.On or about 28th August 2023, only USD. 57,177 was transferred to the 2nd Respondent for Land Purchase and not for Library construction. The reason given for transfer is for land purchase.d.On or about 13th March 2023 on USD. 8,000 was transferred from the 1st Applicant to the 1st Respondent. 33.The 2nd Respondent further contends that the 2nd Applicant also engaged the services of Leah & Moses Ltd to carry out the library construction works without involving the Respondents, that indeed, the 2nd Applicant on her own, sent the construction money for the first phase of the project directly to Leah & Moses Ltd through the Interested Party without involvement of the Respondents, and further that the 2nd Applicant and arranged with the Interested Party to start the construction works and that all these was made between the two based on their friendship/relationship and the Respondents were not a party to the said arrangement. 34.The 2nd Respondent maintained that the agreement between the 1st Applicant and Leah & Moses Ltd was later on executed by the 2nd Applicant and the Interested Party as their representatives. The 2nd Respondent indicates that the first decision to register the 1st Respondent and have the 2nd, 3rd and 4th Respondents as its members/Directors was made with the full knowledge and understanding of the 2nd Applicant and that the 2nd Applicant did not intend to be included as a member/director at that time. 35.The 2nd Respondent asserts that it is a fact that, registration of the 1st Respondent followed a shared vision that the 2nd Respondent had with the 2nd Applicant to collaborate and promote literacy and education. He added that the 4th Respondent at that time was a Board member of the 1st Applicant and also became a founding member of the 1st Respondent because of his experience which was considered vital in the running of the affairs of the 1st Respondent. 36.The 2nd Respondent further deposed that it was the 2nd Applicant who had engaged the law firm of Kenei & Associates Advocates LLP through her representative by the name Hope to oversee the registration of the 1st Respondent Company. He deposed that the registration of the 1st Respondent was initiated on or about the month of July 2021 and the 2nd Applicant was aware of the process since she was always copied in the email correspondence as she was eager to see the registration process concluded to enable their collaboration to be commenced. He maintained that indeed, even the email that contained the details of Directors of the 1st Respondent indicates that she was in copy. 37.The 2nd Respondent claimed that the Interested Party was never recommended by the 2nd and 3rd Respondents as a Contractor and that it is a fact that the 2nd Applicant directly sourced for the services of the Interested Party following their friendship at their personal level and not through any recommendations. He claimed that through WhatsApp messages, the 2nd Applicant engaged the Interested Party and agreed to remit funds to him directly. 38.In regard to the allegation of misappropriation of funds by the Interested Party, delivery of substandard work, and stalling the project, the 2nd Respondents deposed that these are false allegations. The 2nd Respondent insisted that the interested Party indeed performed the works in accordance with the agreement and utilized all the funds received towards the project. He claimed that indeed, a report by a licensed Structural Engineer has given a detailed satisfactory report of the work done by the Contractor and any report to the contrary is inaccurate, not backed by any professional opinion and only intended to mislead the Court. 39.The 2nd Respondent asserts that it is the 2nd Applicant's worker who stole the materials that were at the construction site during the period of construction that led to stalling of the project. He deposed that this is a matter that was reported by the Interested Party and the police carried out investigations and arrested the person who was arraigned and is facing criminal charges in Court. 40.The 2nd Respondent further asserts that it came as a surprise to the Respondents that the 2nd Applicant engaged another company by the name Vast Engineering & Logistics Limited to provide her with a different report that contradicts the report by the Licensed Engineer. He contends that the said second report is not signed, does not have the license details of any Engineer and cannot be relied on and that the said report is annexed as annex T-7 in the Applicant's Supporting Affidavit sworn on 3rd May 2025. 41.The 2nd Respondent confirmed that there was a proposal to expand the Board way after the incorporation of the 1st Respondent and have the 2nd Applicant as a Member. However, the implementation could have only been done in accordance with the law. He noted that while the Respondents did not object the 2nd Applicant’s proposal to join the Board, it is the 2nd Applicant who engaged a lawyer to assist in the process which never materialized. That therefore, the Respondents cannot be faulted for the 2nd Applicant’s own failures to seek proper legal advice or guidance. 42.The 2nd Respondent claimed that the allegation that the Applicants membership and directorship requests were refused by the 2nd Respondent and the 3rd Respondent is false. He contended that it is clear from the minutes of the meeting held on 18th March 2025 that both the 2nd and 3rd Respondents did not object the Applicants request/proposal to join the Board at that time. 43.The 2nd Respondent contends that the Applicant has cited a case law purportedly making a misleading reference that the court has powers under Section 118 of the Companies Act to rectify the register of members where a person's name is wrongly entered or omitted. He maintained that there was no error of omission of names or wrong entry of any name at the time of incorporation of the 1st Respondent as a Company Limited by Guarantee. In addition, he deposed that Section 118 of the Companies Act as cited does not grant the Court power to rectify the register but deals with the right of a member or nominated person to receive information and documents. He urged that the said citation is therefore misleading and should not be relied upon by this Honorable Court. 44.The 2nd Respondent deposed that a Constructive Trust does not apply where the law is expressly clear on the establishment of a corporate entity and the entity is governed by its Memorandum and Articles of Association. He reiterated that in the present case, the 1st Respondent was established as a Company Limited by Guarantee, which is a body corporate under the Companies Act 2015 and that the members are the subscribers to its memorandum and the Directors carry out the day to day duties of the 1st Respondent Company in accordance with the Laws of Kenya and the Model Articles that the 1st Respondent adopted. 45.The 2nd Respondent further deposed that the 1st Respondent can receive donations and support from various other charitable organization within and outside Kenya, and that does not mean that any organization contributing or donating towards its activities will be obliged to a constructive trust and that their nominated persons must join the 1st Respondent as Members or Directors. According to the 2nd Respondent that is not how a Company Limited by Guarantee should operate. 46.The 2nd Respondent contends that there is no agreement between the 1st Respondent and the Applicants that they will have exclusive rights to be the sole donors to the 1st Respondent and that moreover, donation or a charitable contribution to a Company Limited by Guarantee does not create a right or trust such as constructive trust. 47.The 2nd Respondent maintained that a constructive trust under the Kenya law cannot be directly created by a donation from a charitable organization to a company limited by guarantee. Instead, the 2nd Respondent claimed that a constructive trusts arise by operation of law in specific circumstances. He contended that in the present case, there is no fraud committed by the Respondents, there is no breach of fiduciary duty, or other inequitable conduct by the Members/Directors of the 1st Respondent that would give rise to a constructive trust. 48.The 2nd Respondent maintains that the principle of estoppel does not apply or cannot arise where statutory provisions have been applied in the establishment of a corporate body. According to the 2nd Respondent it cannot be said that there is a denial of the Applicants membership right where the Applicants are not members of the 1st Respondent in the first place. Further, the 2nd Respondent asserts that denial only applies where facts support the case. The 2nd Respondent further claims that a cursory look at the company's registry CR12 search of the membership of the 1st Respondent would disclose who the Members and Directors are and that the Applicants are not and as such the issue of denial does not arise. 49.The 2nd Respondent insists that the Respondents are the legitimate and registered members/directors of the 1st Respondent who are by law entitled and mandated with the control and management of the assets of the 1st Respondent. And further that The 2nd Respondents are indeed the only subscribers to the memorandum and articles of the 1st Respondent and they are liable to the extent of their guarantee. That it cannot therefore be said that their exercise of lawful duties of managing and controlling the assets of the 1st Respondent amounts to unjust enrichment and that this is a misconception of the law which this court should not allow. 50.The 2nd Respondent further contends that a donation to a separate body corporate by a charitable organization does not give rise to a fiduciary duty and there being no director/shareholder relationship, and for the further reason that all funds donated by the Applicants to the 1st Respondent have been accounted for, that that accountability is the only responsibility that the Directors of the 1st Respondent owe to all its donors, but not a fiduciary duty. 51.The 2nd Respondent further deposes that that the Applicants have not been excluded from the register. They are simply not members or directors of the 1st Respondent. He contends that they never subscribed to the memorandum of the 1st Respondent at the time of its establishment and therefore cannot allege non-inclusion from the register. 52.The 2nd Respondent further deposed that the register of members and directors of the 1st Respondent held at the Companies Registry only contain the actual details of the subscribers and directors but not persons proposing to join the company either as members or directors. He contends that the allegations are therefore based on pure misconception of the law and equitable maxims cited thereon do not apply neither is there any prejudice occasioned to the Applicants. 53.Lastly, the 2nd Respondents deposes that the Respondents did not make any payments to one Jordan Choge nor did they contract the said Jordan Choge and that they also have never misappropriated the alleged sums of Kshs.13 million as stated in the affidavit. The 2nd Respondent therefore asserts that the statement is false and the order of interim Injunction is not merited ought to be disallowed. Interested Party’s Replying Affidavit 54.The Application is also opposed by the Interested Party, Jordan Choge who too filed Replying Affidavit in response thereto. He restated the 2nd Respondent’s depositions regarding the filing of a Miscellaneous Application that is not anchored to a main suit and I need not therefore regurgitate the same. 55.He submitted that the 1st Respondent is a Company Limited by Guarantee incorporated on 12th October 2021 under the Companies Act 2015 with its members and Directors mandated to discharge their duties under the aforesaid Act and in accordance with the Memorandum and Articles of Association of the 1st Respondent. 56.The Interested Party further deposed that the 2nd Applicant entered into an arrangement with him based on their personal friendship and also, she knew all along as the brother to her son-in law. He stated that through WhatsApp messages, the 2nd Applicant engaged him directly and agreed to remit funds to him to start the construction works for the Library. Further, he stated that the 2nd Applicant has actually engaged him before the construction of the Library started to construct some houses that she had funded. 57.That because of their friendship and having proved that he is competent and capable to deliver to her expectations, she further engaged him independently and directly through a separate entity (Leah & Moses Ltd) to carryout construction for the 1st Respondent. He asserts that the 2nd Applicant did not rely on any representation by the Respondents in doing so and also did not involve the Respondents while engaging me to do the construction of the Library. That he was never recommended by the 2nd and 3rd Respondents as a contractor and that the 2nd Applicant also funded him directly. 58.He reiterated that all these was done by the 2nd Applicant because they had a close family relationship and also because of their personal friendship. He indicated that she indeed made the payments directly to him through the 1st Applicant to an account held in the name of Underground Village. That an agreement between the 1st Applicant and Leah & Moses Ltd and the same was later on executed by the 2nd Applicant and him as their representatives without involvement of the Respondents. 59.The interested Party denied allegations of misappropriation of funds by him. He deposed that through Leah & Moses Limited, he performed the works in accordance with the agreement and utilized all the funds received towards the project. He retreated the 2nd Respondents assertion on the report by a licensed Structural Engineer and as well as the depositions regarding the subsequent report obtained by the 2nd Applicants and the alleged theft of the construction materials adding that the suspect is known to the 2nd Applicant, and is her servant/agent. 60.The Interested party further asserted that Respondents did also not make any payments to him apart from the fact that did they contract him. He stated that he is neither a Member nor a Director of the 1st Respondent Company. He therefore urged that the interim order of injunction issued by the court against the 1st Respondent ought to be lifted or annulled to allow the 1st Respondent to continue with its normal operations in accordance with the law and further that the Applicant’s Application be dismissed with costs to himself. Supplementary Affidavit. 61.In response, the Applicants filed a Supplementary Affidavit sworn by the 2nd Applicant wherein she basically reiterated her averments in her Affidavit in Support of the Application. Submissions 62.The application was canvassed by way of written submissions and Counsel for the parties filed their respective submissions with the Respondents and the Interested Party filing joint submissions. Applicants’ Submissions 63.On the averment that Application is incompetent for want of an anchor in a main suit, Counsel for the Applicants submitted that the Application is procedurally competent and relied on the case of Kilindini Warehouse (K) Limited v Registrar of Companies & another [2025] KEHC 12468 (KLR) and also the case of Abdi Abdullahi Somo v Ben Chikamai & 2 others [2016] KEHC 4283 (KLR). Counsel maintained that this Miscellaneous Application is brought under Section 103 of the Companies Act, 2015, which expressly authorizes “application” to the Court for rectification of the register. 64.Counsel argued that Section 103 herein above cited provides a very clear mode by which an issue for rectification of a company register is to be brought before the court and the mode is by way of an Application. Counsel urged that even though the section has not provided the specific type of Application, Order 51 Rule 1 of the Civil Procedure Rules, 2010 provides that, “all applications to the court shall be by motion and shall be heard in open court unless the court directs the hearing to be conducted in chambers or unless the rules expressly provide.” Counsel therefore submitted that this Application is procedurally competent and not an abuse of the court process as argued by the Respondents and the Interested Party. 65.Counsel reiterated that the cited Section 103 of the Companies Act, as provided above, empowers this Honourable Court to either refuse the application or order rectification of the register of the company's members or directors if the name of any person is, without sufficient cause, omitted from the register of members or directors of a company. He relied on the case of Suryakant B Patel & 2 others v Moses Sekeya Kulndi & 4 others and Registrar of Companies (Nairobi HC (Com & Tax) Misc App No 467 of 2014). 66.Counsel argued that in this instant suit, the Respondents have not shown any sufficient cause why the 2nd, 3rd and 4th Applicants were omitted from the register of members and directors of the 1st Respondent, despite them being the founders and the brains behind the 1st Respondent. Counsel therefore urged that the Applicants have established grounds for rectification of the register of members and directors. 67.Counsel submitted that the rectification order sought is an administrative, remedial jurisdiction given to the court to correct the register where a person's name has been wrongfully omitted and that Section 103 aforesaid expressly grants that power. Counsel argued that the Applicants produced the minutes dated 18th March 2025 and other contemporaneous documents evidencing an agreed arrangement to include the Applicants in governance. He submitted that the Respondents' own pleadings and annexures confirm this for reasons that they too produced the same minutes and admit inclusion did not materialize. 68.Counsel therefore urges that an omission that is admitted and unexplained is wrongful and requires rectification: “where evidence shows a consensus to include a person, that consensus must be given effect.”Counsel asserted that practically the 1st Respondent is a vehicle funded and sustained by the Applicants' funds. Counsel argued that equity will not permit that vehicle to exclude its principal donors from governance while materials and funds flow from the Applicants. Counsel urged that do so would be to permit an unjustified appropriation of donor influence and funds, the precise mischief Section 103 is designed to remedy. 69.Counsel further submitted that equity imposes a constructive trust where property is acquired with another's funds and held by a party who is unable or unwilling to account. He relied on the case of Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others [2015] KECA 713 (KLR), where the Court of Appeal stated that a constructive trust arises “by operation of law whenever property is held in circumstances where it would be unconscionable for the holder to deny the beneficial interest of another.” 70.In this case, Counsel asserts that the admitted facts are straightforward: the Applicants funded the land and project; the land purchase monies are acknowledged in the Respondents' annexures; Tiffany's custody of the original title documents is admitted in the Applicants' affidavits and not meaningfully contradicted by the Respondents. Counsel contended that the Respondents supply no coherent explanation as to why they should hold beneficial ownership when they did not provide the funds. Counsel maintained that the presumption of a trust therefore arises and the burden of explanation rests with those who hold legal title. Counsel indicated that as the Court observed in the Twalib Hatayan case above, silence or absence of justification for exclusive control supports the inference of a constructive trust. 71.Counsel maintained that the Applicants relied on the Respondents' representations (including legal advice which the Applicants were told precluded foreign directorship) and on the Respondents' undertaking to include the Applicants once compliance was assured. Counsel argued that relying on that advice, the Applicants remitted substantial funds and entrusted local execution to the Respondents. Counsel cited the Court of Appeal in the case of Serah Njeri Mwobi v John Kimani Njoroge [2013] KECA 501 (KLR) held that the doctrine of estoppel prevents a party who made such a representation from resiling to the detriment of the other. 72.Counsel urged that the Respondents cannot now rely on the formal registration papers to deny the Applicants their equity; the Applicants acted to their detriment after reasonable reliance on the Respondents' representations. Counsel maintained that estoppel therefore precludes the Respondents from asserting a position inconsistent with the assurances on which the Applicants relied. 73.Counsel submitted that retaining the benefit of donor funds while excluding the donors from governance and accountability is unjust enrichment. Counsel urged that the court is well able to rectify such inequity either by imposing equitable remedies (constructive trust) or by rectifying registers to restore proper governance. Counsel urged that Kenyan courts have adopted unjust enrichment reasoning in company and fiduciary contexts and submitted that Section 780 of the Companies Act permits relief where conduct is unfairly prejudicial to persons who have a legitimate interest. 74.Counsel contended that by funding, expecting inclusion, and being used as a donor-reservoir while being excluded from records and control, the Applicants plainly have a legitimate interest. Counsel maintained that Respondents' failure to account and their admission of non-implementation of the agreed-upon inclusion amounts constitute unfair prejudice. 75.Counsel further submitted that the Respondents produced an audit annexure that does not give a traceable account of project expenditure and observed that they did not produce bills of quantities, contractor statements, procurement records, or reconciliations. He added that the raw transfers in their own annexures (which they filed) show monies paid, but without supporting documentation and in these circumstances, the court is entitled to order an independent accounting and to supervise the rectification process to protect the charitable interest. 76.Counsel urged that this court’s supervisory jurisdiction in company and charity contexts exists precisely to ensure that donor funds are applied to the declared purpose and that persons exercising control are accountable. Counsel argued that where directors or office-bearers fail to maintain records and cannot justify their stewardship, the Court must act. 77.That further, the Applicants have satisfied the three-pronged Giella v Cassman Brown & Co. Ltd test to wit; a) a strong prima facie case (admissions, minutes, transfers); b) risk of irreparable harm (dissipation of charitable funds and loss of donor intent); and c) balance of convenience in favour of preservation. Counsel urged that the Applicants' evidence, buttressed by the Respondents' own annexures, shows that preservation orders should remain in place while full rectification and accounting proceed. 78.Counsel submitted that this is a plain and clear case calling for the exercise of the court's summary power to order rectification of the register of members and directors to reflect the true position as agreed and recorded. Counsel thus urged the Court to exercise its statutory power to order rectification of the register to reflect the true position as agreed and recorded on 18th March 2025. 79.Regarding Costs, Counsel submitted that Section 27 of the Civil Procedure Rules, 2010, indicates that it is trite law that costs follow the cause/event and that the successful party should be awarded the costs. Counsel urged that the Respondents be ordered to pay the Applicants the costs of this Application. Respondents’ and Interested Party’s Submissions 80.Counsel for the Respondents and the Interested Party noted that in the Respondents Replying Affidavit sworn on 30th May 2025, the Respondents have provided evidence of communication between the Applicant's representative by the names Hope and the Advocates who were sponsored by the 1st Applicant to carry out the registration of the 1st Respondent. That the said email is dated Thursday, 15th July 2021 and is marked as "JKC-11". 81.Counsel contended that the 2nd Applicant who is alleging that her name was omitted during the registration is in copy thereon and that her name in the email correspondence appear prominently as "Tifanny Ninemire". Further, Counsel pointed out that the email reads: "Good morning Henry, as requested, below are the telephone numbers of the Directors. 1. Wilson Kimeli-+254 (0) 722 xxxxxx, 2. Joshua Choge-+254 (0)727 xxxxxx, 3. Caleb Choge-+1 913 xxxxxx0/+254 (0) 722 407 019." 82.Counsel submitted that the above are the details that were relied upon by the Advocates for application and registration of the 1st Respondent. Counsel maintained that the Applicants had full knowledge of the same and did not raise any objection, any issue about omission or otherwise or any error in the details submitted. Counsel argued that they are therefore estopped from alleging an omission when they had full knowledge of whom the Directors and Members of the 1st Respondent were and still are. 83.Counsel further submitted that the Applicants allege that they were misled by the Respondents that non-Kenyan citizens could not be admitted as Directors or Members of the 1st Respondent. Counsel argued that this is not true and has not been supported by any evidence. According to Counsel, if indeed the Applicants were not aware of the Kenyan law, they had a full opportunity having been in communication with the Advocate who carried out the registration to enquire and obtain the correct information. Counsel urged that they cannot rely on their own ignorance of the law to misinform the court by giving false information to mislead the Court. Such argument and misinformation must be disallowed. 84.Counsel asserts that upon submission of the names and details of the 1st Respondent’s Directors and Members for registration with the Registrar of Companies, the application went through the laid down procedures and finally, the 1st Respondent was registered as a Company Limited by Guarantee on 12th October 2021. Counsel added that an official search records (CR12) issued by the Registrar of Companies on 9th November 2021 which is annexed to the Respondent's Replying Affidavit sworn on 30th May 2025 as annexure "JKC-16” indicates and proves that: The 1st Respondent’s name is Kanken Connect Literacy Foundation; its Directors and Members are: Caleb Kipkoskey Choge, Wilson Kimeli and Joshua Kibet Choge. 85.Counsel submits that the Applicants have been aware and had full knowledge of the above information of the 1st Respondent since the records are available to the public and have provided donations to the 1st Respondent. It is further submitted that the Applicants only started the issue of alleged omission at the time that they were demanding for ownership and control of the 1st Respondent being the Donee. Counsel contends that the only basis for their demand is that they are the donors and therefore must be included as Directors and Members of the 1st Respondent and that such demand is not supported by any legal provision and it is common knowledge that donation does not entitle one to be a Director or Member of a Company Limited by Guarantee. 86.Counsel urged that it is therefore evident that the Applicants names were not omitted from the names submitted for registration of the 1st Respondent, they had full knowledge of the registration, and they sponsored the registration through an Advocate in Kenya. Counsel argued that the allegation of omission or being misled does not arise therefore and they have not proved the same. 87.Counsel claims that the Respondents having proved that there was no omission of names of the Applicants during the registration of the 1st Respondent therefore invites the court to make a determination as to whether the application for rectification of the register of the 1st Respondent by the Applicants is justified. 88.Counsel referred to Section 103 of the Companies Act, 2015 on rectification of the register and also submitted that under the said section, there must be evidence of an omission for a person to seek the power of Court to rectify the register. Counsel contended that such evidence has not been provided at all by the Applicants and so the court therefore cannot interfere with a legally and duly registered entity based on mere allegations which are untrue and not supported by any proof of omission. 89.Further, Counsel submitted that Section 105 of the Companies Act, 2015 provides that Register to be evidence until the contrary is proved, to wit; the register of members of a company is evidence of the matters required or authorized to be included in it." Counsel therefore urged that indeed, an examination of Annexure marked as "JKC-16" in the Respondents Replying Affidavit sworn on 30th May 2025 provides evidence of the details of the Directors and Members of the 1st Respondent required or authorized to be included in the register. 90.Counsel reiterated that the Respondents have failed to provide any legal basis or justifiable reason why the court should order for the rectification of the register under Section 103 of the Companies Act and urged that the court therefore, has the discretion under Section 103(2) of the Companies Act, 2015 to refuse rectification based on the present Notice of Motion Application that is before it, since it lacks sufficient cause and it involves disputed untrue allegations. 91.Counsel added that unlawful and unprocedural rectification if allowed, would amount to a violation of the rules of natural justice and property rights of the Respondents and further submitted that the Applicants have failed to enjoin the Registrar of Companies in their Application to respond to their allegations of omission of names. Counsel therefore maintained that this is a deliberate attempt to bypass the due process and well-set procedures of appointment of Directors and members of a Company Limited by Guarantee under the laws of Kenya. 92.Counsel observed that the rules of natural justice require that every person who may be affected by an order of the court must be granted an opportunity to be heard and urged that this is not the case here for reasons that the Applicants are calling for an order that will require the Registrar of Companies to act without being afforded an opportunity to be heard. 93.Counsel further submitted that Section 103(1) aforesaid permits rectification only if a name is entered/omitted "without sufficient cause," with the court empowered to refuse rectification. He urged that the Applicants have only provided false allegations to mislead the court and therefore are not deserving the grant of an order for rectification. 94.Counsel submitted that is a well-settled equitable principle that "he who comes to equity must come with clean hands". He contended that the Applicants have not come to court with clean hands. He added that they have failed to show any omission or wrong entry of their names in the register. As such their allegations are just but false. Counsel urged that mere disagreement with the manner in which the 1st Respondent is being governed is not sufficient cause for grant of an order for rectification. 95.Counsel noted that Order 40 Rule 1 of the Civil Procedure Rules is explicit that interlocutory injunctions may only issue "where in any suit it is proved by affidavit or otherwise." He emphasized that the operative words are "in any suit." He argued that in the present matter, there is no suit pending before this Honourable Court, there is no Plaint, no Petition, and no Originating Summons upon which interim reliefs can anchor. 96.Counsel cited the case of Kenya Commercial Bank Ltd v Osebe [1982] KLR 296 where the court held that interlocutory applications are incidental to suits and cannot exist independently. Further, he cited the Court of Appeal in Uhuru Highway Development Ltd v Central Bank of Kenya [1996] eKLR where the Court cautioned courts against granting orders that have the effect of finally determining disputes at an interlocutory stage. 97.He submitted that the prayers sought at paragraphs (d), (e), (f), and (g) of the Notice of Motion Application are final in nature and granting them would conclusively determine the dispute herein without the case going to full trial, in violation of Article 50 of the Constitution of Kenya, 2010. 98.Counsel further argued that Applicants rely heavily on equitable doctrines to sustain the reliefs sought without any legal justification. He claimed that they allege there is a constructive trust between the 1st Respondent and the 1st Applicant who only enjoy Donee-Donor relationship. That however, because equity follows the law it cannot override express statutory provisions. 99.Counsel observed that in the case of Twalib Hatayan & Another v Said Saggar Ahmed Al-Heidy & Others [2015] eKLR, the Court of Appeal held that a constructive trust arises only where there is fraud, breach of confidence, or unconscionable conduct. He argued that no such conduct has been established. He submitted that donations were accounted for by the Respondents, audited, and applied towards charitable objectives and that the Applicants have not tendered any evidence to the contrary. 100.He cited that in the case of Agricultural Finance Corporation v Lengetia Ltd [1985] KLR 765, where the Court held that estoppel cannot be used to circumvent statutory requirements. He contended that no fiduciary relationship exists between donors and directors of a company limited by guarantee, absent express agreement. He further urged that the Applicants have not produced any agreement between them and the Respondents to prove the existence of such relationship that may give rise to the alleged fiduciary duty and so no such duty exists. 101.Counsel submitted that allegations of misappropriation are serious and must be strictly proved. He added that the Applicants' claims are contradicted by bank records, professional reports, and police documentation annexed to the Replying Affidavit filed by the Respondents. He urged that Applicants have failed to provide any proof to their own allegations save for providing false and misleading information before court. He relied on the case of Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR. 102.Counsel claimed that the Applicants have selectively presented records of funds transfer to different people and persons who are not event parties to the present Applications to mislead the court that the 1st Respondent was the recipient of all such funds or donations. That this amounts to dishonesty and suppression of material facts. Counsel urged that equity does not aid the indolent or the dishonest. 103.That in view of the foregoing, Counsel submitted the Applicants have failed to satisfy the well-settled principles in Giella v Cassman Brown & Co Ltd [1973] EA 358. That what amounts to a prima facie case was defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR . 104.Counsel maintained that the Applicants have not demonstrated any legally enforceable right for reasons that donations to a Company Limited by Guarantee do not confer proprietary interests, membership, or directorship to the Donors. He added that Section 2 and Part XXIII of the Companies Act, 2015, together with the Model Articles, strictly govern membership and directorship. The CR12 search annexed to the Replying Affidavit confirms that the Applicants are neither members nor directors. 105.Counsel submitted that the High Court in Affordable Homes Africa Limited v Henderson & 2 Others [2004] eKLR held that company registers are conclusive evidence of membership unless lawfully rectified. Counsel argued that this underscores the provision under Section 104 of the Companies Act, 2015 and reiterated that the Applicants have failed to prove any omission or error and only relies on false allegations to call for rectification. He maintained that there is no evidence of fraud, mistake, or illegality to warrant rectification under the Companies Act. 106.Counsel submitted that the Applicants allege financial loss and reputational damage and that such harm, if proven, is quantifiable and compensable by damages and the said allegations therefore do not meet the threshold for the grant of injunctive reliefs sought. Conversely, Counsel asserts that the interim orders have occasioned grave prejudice to the 1st Respondent by freezing its operations and undermining its charitable mandate. He argued that the Directors and Members of the 1st Respondent have been unable to carry out the functions and operations of the 1st Respondent properly as a result of the interim Orders that were issued ex-parte which the court ought to vacate and dismiss the Application in its entirety. 107.Counsel submitted that from the foregoing, the balance of convenience tilts decisively in favour of the Respondents and Interested Party and therefore urged that the Applicants are outsiders seeking control, while the Respondents are the lawful custodians of the 1st Respondent’s affairs. Counsel insisted that a donor cannot insist to control the Donee by virtue of its donations. He argued that if that is allowed to happen then the court will open a pandoras box such that every other donor in future will move to court to take control of the Donee company just by virtue of its donations. In this regard, Counsel urged the court not to allow parties who are not the lawful custodians of the 1st Respondent to take control and interfere with its lawful and proper governance structure. He added that courts are enjoined to avoid orders that disrupt corporate governance and public interest. He relied on the case of Moses C. Muhia Njoroge & 2 Others v Jane W. Lesaloi & 5 Others [2014] eKLR. 108.Counsel contended that the Applicants have approached this Court by way of a miscellaneous Notice of Motion Application while seeking substantive reliefs that can only be determined through a properly instituted suit. Counsel submitted that Courts have consistently held that jurisdiction and procedure are foundational and cannot be sacrificed at the altar of convenience. He added that a miscellaneous application is intended for limited, specific, and uncontested matters. He argued that it is not a substitute for a Plaint, Petition, or Originating summons. He cited the High Court in Re Estate of Mbiyu Koinange (Deceased) [2019] eKLR, where the Court warned against the misuse of miscellaneous causes to litigate substantive disputes. 109.Counsel contended that an interim injunction is only issued to maintain the substratum of the subject matter to be determined in the main suit and cannot be issued where there is no suit in place. Counsel asserts that interim injunction cannot automatically mutate to a permanent Injunction if there are no such prayers made by a party either in its own application or in the main suit. He observed that in the present application, there is no such a prayer and the Order is therefore unsustainable. 110.In conclusion, Counsel submitted that the Applicants seek to enforce alleged rights to membership, directorship, and control of corporate assets and urged that these are substantive claims requiring pleadings, discovery, oral evidence, and cross-examination and that they cannot be determined summarily. According to Counsel, the Application is therefore incompetent, incurably defective, and an abuse of the Court process. Determination 111.Having considered the pleadings as well as the submissions, I find that the following issues arise for determination:a.Whether the application before Court is competent.b.Whether the Court should order rectification of the 1st Respondent register so as to include the names of the Applicantsc.Who should bear costs of the Application Whether the application before Court is competent 112.The Respondents and the Interested Party vehemently argued that this application is fatally defective because it seeks final, substantive orders via a Miscellaneous Application without a substantive main suit (such as a Plaint or Petition) pending before the Court. They rely on Order 40 Rule 1 of the Civil Procedure Rules, which anchors temporary injunctions strictly within a pending "suit" 113.Conversely, the Applicants maintained that Section 103 of the Companies Act, 2015, explicitly prescribes that a grievance regarding the wrongful omission of a name from a company register be brought to the Court by way of an "application" 114.Section 103 of the Companies Act, 2015 grants the High Court the power to rectify a company's register of members when information is wrongfully entered, omitted, or outdated. This statutory provision acts as a vital safeguard for shareholders, the company, and affected third parties to ensure the legal record of ownership remains completely accurate. Section 103 of the Company’s Act provides that: -(1)If—(a)the name of any person is, without sufficient cause, entered in or omitted from the register of members of a company; or(b)the cessation of membership of a person who has ceased to be a member of the company has not been entered in that register, the person affected, or the company or any member of the company, may apply to the Court for rectification of the register.(2)On hearing an application made under subsection (1), the Court shall either refuse the application or order rectification of the register and payment by the company of any damages sustained by any party affected by the error or its failure.(3)On hearing such an application, the Court may—(a)decide any question relating to the title of a person who is a party to the application to have the person's name entered in or omitted from the register, whether the question arises between members or alleged members, or between members or alleged members on the one hand and the company on the other hand; and(b)generally, decide any question that it considers should be decided in order to rectify the register.(4)In the case of a company required by this Act to lodge a list of its members with the Registrar, the Court, when making an order for rectification of the register, shall by its order direct notice of the rectification to be given to the Registrar, who shall on receipt of the notice make such adjustments to the Register as the Registrar considers appropriate. 115.Under Order 51 Rule 1 of the Civil Procedure Rules, where the law provides for an application without specifying the form, it is properly brought by way of a Notice of Motion. Therefore, the Applicants cannot be faulted for invoking the explicit language of Section 103 to file a Miscellaneous Application. 116.However, while the mode of commencement is statutory and competent, the summary nature of a Miscellaneous Application is strictly designed for clear, straightforward instances of error or omission. Where an application involves complex, intensely disputed questions of fraud, misrepresentation, and oral agreements, proceeding summarily via affidavit evidence alone compromises the court's capacity to test the veracity of the claims through cross-examination as in the instant case. 117.As to the nature of an application for rectification the same was succinctly discussed by Gikonyo, J. in Suryakant Bhailalbhai Patel & 2 others v Moses Sekenya Kulundu & 4 others [2014] KEHC 1317 (KLR), to which I concur that: -“(4)There is ample judicial authorities as well as respected literally works on the scope of jurisdiction and power of court in determining applications for rectification of register of members of a company. First, the jurisdiction to rectify register by court is discretionary albeit the discretion must always be exercised in accordance with the law; not whimsically; not capriciously. Therefore, the first consideration in the exercise of discretion under section 118 of the Companies Act is; the procedure is a summary process and should be invoked only in clearest of cases. See the case of Prab Hulal Tejpa Haria & another v Pravin Chandra Meghji Dodhia & 2 others [2007] eKLR, where Warsarme J (as he then was) expressed himself that;“In my view the summary powers of the court can be invoked in plain and clear cases, where there is no need for a trial.......... The powers under section 118 of the company’s Act cannot be invoked when there is a real and complicated dispute as to the real interests of the parties.” 118.In the case of Adan v. Abdi & another (Civil Appeal E022 of 2022) [2023] KECA 1341 (KLR), the Court of Appeal re-emphasized the danger of determining serious allegations of fraud and misrepresentation through summary affidavit evidence. The Court observed:“Allegations of fraud, misrepresentation, and underhanded dealings are serious in nature and require a high standard of proof. Such matters cannot be conclusively or safely determined on the basis of conflicting affidavit evidence where the court is deprived of the opportunity to see and hear witnesses testify, observe their demeanor, and have their assertions tested under the fire of cross-examination." 119.In Re Estate of Mbiyu Koinange (Deceased) [2019] eKLR, The Court warned against using summary applications to bypass plenary trials, holding that:Miscellaneous applications and causes are designed for straightforward, specific statutory reliefs or uncontested matters. They are not a substitute for a Plaint or an Originating Summons where substantive, deeply contested disputes of facts, oral promises, or proprietary rights are at stake. Sacrificing proper trial procedure at the altar of convenience is a procedural misdirection. 120.In Republic v. Registrar of Societies ex parte Muhia Njoroge & 2 others [2016] eKLR, the High Court noted that when a summary or miscellaneous application is laden with deeply polarized factual claims, such as whether a specific meeting occurred, whether minutes were forged, or whether oral representations were made, the summary affidavit model collapses. The Court ruled that such complex factual matrices can only be unraveled in a full plenary trial where discovery, inspection of documents, and oral testimony are deployed. 121.Having carefully addressed my mind at this preliminary stage to the issues under contention in the instant case, what has clearly been demonstrated by the assertions, allegation, accusations and counter accusations made by the rival parties is that the issues under contestation cannot by any stretch of the imagination be said to be straightforward, uncontested and uncomplicated matters where specific statutory reliefs are sought. This is not one case that can be describe as a plain and clear cases where there is no need for a trial. The issues under contestation elevates the matter to the realm where real, substantive, complicated, deeply contested disputes of facts, oral promises, ad/or proprietary rights and interests of the parties are at stake. 122.As observed by the Court of Appeal in Adan v. Abdi & another (Civil Appeal E022 of 2022) [2023] KECA 1341 (KLR)(supra), the allegations made by each of the parties as against the other are serious in nature and require a high standard of proof and cannot therefore be conclusively and/or safely determined on the basis of conflicting affidavit evidence where the court is deprived of the opportunity to see and hear witnesses testify, observe their demeanor, and have their assertions tested under cross-examination." 123.Further to the above, the court also notes that the Applicant in this Application also seeks for orders that an interim order issues restraining the Registrar of Companies from effecting any changes to the 1st Respondent’s register of directors or members pending determination of this application. Such a prayer basically amounts to seeking an order of injunction. It is also not lost on the court that both the Applicant and the Respondents in their respective submissions urged that the court finds that the conditions for the granting of an injunction as laid out in the case of Giella v Cassman Brown 1973 EA 356 have either been met or not met 124.Further, though not cited as one of the statutory provision under which the Application is premised, by dint of the prayers sought, it is obvious that the Application though clothed as a Miscellaneous Application brought under the cited provisions of the Companies Act is also one where the provisions of Order 41 Rule 1 of the Civil Procedure Rules have been invoked and are therefore are applicable. Indeed, interim orders of injunction were herein issued upon application on behalf of the Applicant which orders are still subsisting. The provisions of Order 41 Rule 1 require that any application for injunction be anchored upon a suit. 125.All considered, these provisions of Order 41 Rule 1, coupled with my observations regarding the nature of the dispute as already herein summarized not only goes to demonstrate that this application cannot be summarily disposed of by way of a Miscellaneous Application but also that it was necessary that a suit be filed simultaneously with the Application. 126.This being my conclusion then, it is abundantly clear that the Application as brought by way of a Miscellaneous Application is misconceived and bad in law. Accordingly, the same is now hereby struck out in its entirety with costs to the Respondents. The interim orders herein issued are now hereby vacated. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 9TH JULY 2026E. OMINDEJUDGE