https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1920

Karuga v Africastalking (K) Ltd & another (Petition E157 of 2025) [2026] KEELRC 1920 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1920 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E157 of 2025 JW Keli, J July 3, 2026 Between Kevin Murimi Karuga Petitioner and Africastalking (K) Limited 1st Respondent Samuel Nderitu Gikandi 2nd Respondent Ruling 1.The 2nd respondent, while the hearing and determination of his petition was pending, filed an application by way of Notice of Motion dated 2nd March 2026, brought under Articles 22, 23, 159 of the Constitution of Kenya, Rule 44, 45(4), 45(5), 46, 47, and 49 of the Employment and Labour Relations Court (Procedure) Rules, 2024, the inherent jurisdiction of this Honourable Court, and all other enabling provisions of the law, seeking the following Orders.a.spentb.Pending the hearing and determination of this Application inter partes, the ex parte conservatory orders issued on 25th August 2025 by the Honourable Justice Stella Chemtai Rutto be discharged, vacated, varied and/or set aside forthwith.c.Pending hearing inter orates the said orders be, varied so as to immediately and pending inter partes hearing restore the 2nd Respondent’s unrestricted access to the 1st Respondent’s corporate email systems, financial platforms, internal communication channels, cloud-based infrastructure, statutory records, and all operational resources necessary for the lawful discharge of his mandate.d.Pending the hearing of this application inter partes, the said orders be varied so as to immediately and fully restore the 2nd Respondent’s unrestricted access to the 1st Respondent’s corporate email systems, financial platforms, internal communication channels, cloud based infrastructure, statutory records, and all operational resources necessary for the lawful discharge of his mandate.e.Pending hearing and determination of the Application, the Petitioner and the 1st Respondent be expressly restrained from directly or indirectly obstructing, denying, limiting, or interfering with such access in any manner.f.This Honourable Court, in the exercise of its inherent jurisdiction and in the interests of justice, be pleased to discharge, vacate, vary and/or set aside the ex parte conservatory orders issued on 25th August 2025 by the Honourable Justice Stella Chemtai Rutto.g.Costs of this Application be awarded to the 2nd Respondent/Applicant, to be borne personally by the Petitioner. 2.Grounds of the applicationa)The 2nd Respondent/Applicant is the co-founder, Group Chief Executive Officer and Chairperson of the Board of Directors of Africastalking (K) Limited, lawfully mandated to lead, supervise, and direct the strategic, financial, legal, and operational affairs of the Company.b)The Petitioner procured far-reaching and prejudicial ex parte conservatory orders on 25th August 2025 before the Honourable Justice Stella Chemtai Rutto, without affording the Respondents an opportunity to be heard, the effect whereof has been to fundamentally interfere with the lawful governance and operational control of the 1st Respondent Company.c)The ex parte orders granted on 25th August 2025 were obtained in speculative circumstances, are being maintained through procedural indolence, and are presently being misused to paralyse lawful corporate governance and obstruct legitimate investigations.d)The Petitioner was expressly directed by this Honourable Court to file and serve written submissions within three (3) days together with the Petition and Notice of Motion; however, he has wholly failed, neglected and/or refused to comply with the said directive.e)On 24th September 2025, this Honourable Court reiterated its earlier directions requiring the Petitioner to file and serve written submissions; notwithstanding the said reiteration, the Petitioner once again failed and/or neglected to comply.f)Seven (7) months have since elapsed from the date of issuance of the ex parte conservatory orders, yet the Petitioner has taken no meaningful or diligent steps to prosecute either the Notice of Motion or the Petition, and continues to benefit from interim relief and misuse them while remaining in persistent default.g)The Petitioner continues to enjoy and exploit the ex parte conservatory orders of this Honourable Court while remaining in flagrant and contumacious non-compliance with its express procedural directions, thereby abusing the equitable jurisdiction of this Court and undermining the integrity of its processes.h)The Petitioner, together with a third party, one Paul Wamalwa, is deploying the ex parte orders as an instrument to exclude the 2nd Respondent from the operational, financial and governance infrastructure of the 1st Respondent, including official corporate email systems; financial and banking platforms; internal communication systems; cloud-based operational infrastructure; and compliance and regulatory documentation.i)There is no valid, lawful, or properly convened resolution of the Board of Directors or the shareholders of the 1st Respondent exists or has been passed authorizing the exclusion of the 2nd Respondent from access to corporate systems, communication platforms, or operational resources; any purported act to the contrary is ultra vires, unlawful, and of no legal effect.j)The continued operation and enforcement of the ex parte conservatory orders has entrenched a state of corporate governance paralysis and created a leadership vacuum, thereby obstructing lawful management, strategic decision-making, and the fulfilment of statutory and fiduciary obligations of the 2nd Respondent.k)The Petitioner, not being a director and having admitted to unauthorised disclosure of confidential company information, has committed a prima facie breach of fiduciary and contractual duties, yet continues to exploit the ex parte orders to obstruct ongoing investigations into serious financial and operational irregularities.l)The continued obstruction of the 2nd Respondent’s access to the Company’s corporate systems, coupled with the operation of the ex parte conservatory orders, has caused and continues to cause irreparable and escalating harm to the 1st Respondent, including disruption of operations, impairment of statutory and contractual compliance, exposure to regulatory and criminal liability, loss of investor confidence, reputational damage, and erosion of shareholder value.m)The orders sought are necessary, proportionate, and in the interest of justice, equity, sound corporate governance, and the protection of the Company and its stakeholders. 3.The application was supported by the 2nd respondent dated 27th February 2026 who averred as follows- 4.The Respondent/Applicant contended he was the co-founder, Group Chief Executive Officer (CEO), and Chairperson of the Board of Directors of Africastalking (K) Limited, a company duly incorporated under the laws of the Republic of Kenya. That he was duly authorized to lead, supervise, and manage the strategic, operational, financial, and legal affairs of the 1st Respondent Company. He filed the affidavit in support of his application to discharge, vacate, vary, or set aside ex parte conservatory orders issued on 25th August 2025 by Honourable Justice Stella Chemtai Rutto, and to restore unrestricted access to corporate systems and operational resources required for the lawful discharge of my functions. 5.That on 25th August 2025, the Petitioner obtained ex parte conservatory orders before Honourable Justice Stella Chemtai Rutto. Importantly, the orders did not prevent, restrict, or discharge my lawful functions as CEO and Chairperson of the 1st Respondent Company. Annexed hereto and marked as "Gik-1" a copy of the Orders of 25th August 2025. 6.That the Petitioner, together with his associates, including one Paul Wamalwa, has weaponized these orders to: Prevent me from exercising operational and executive authority; Obstruct governance functions, including financial oversight, strategic decisionmaking, and statutory compliance; Interfere with ongoing investigations into financial and operational irregularities; Harm the Company operationally, financially, and reputationally. now annex hereto and mark as "Gik-2" an extract of an email authored by Paul Wamalwa, in which the Petitioner and his associates explicitly rely on the ex parte orders as the basis for blocking my access to the Company's corporate resources, systems, and platforms. 7.That in effect, the Petitioner has misused the authority of this Honourable Court to create personal and corporate disruption, which is entirely contrary to the intentions of the orders and the Court. 8.That The Petitioner has failed to comply with multiple express directives of this Honourable Court, including:a)Filing and serving written submissions within three (3) days of the issuance of the ex parte orders (25th August 2025);b)Complying with the reminder direction issued on 24th September 2025 to file submissions;c)Taking any meaningful steps to prosecute the petition or advance the Notice of Motion over the subsequent seven ) months while enjoying and abusing ex parte orders. 9.That despite the Petitioner's persistent default, he continues to exploit and abuse the ex parte orders to obstruct governance, block my access to:a)Corporate email and communication platforms;b)Financial and banking systems;c)Cloud-based operational infrastructure;d)Statutory, regulatory, and compliance records. 10.That there is no valid, lawful, or properly convened board or shareholder resolution authorizing the Petitioner acting in concert with Mr. Wamalwa to exclude my access. Any purported act to the contrary is ultra vires, unlawful, and of no legal effect. That the deliberate weaponization of the orders and the Petitioner's non-compliance with Court directives has caused irreparable harm, including: -a)Paralysis of corporate governance and decision-making;b)Inability to fulfil statutory and fiduciary obligations;c)Disruption of financial operations and operational continuity;d)Exposure to regulatory investigations and potential criminal liability:e)Loss of investor confidence and reputational damage;f)Erosion of shareholder value; g) Obstruction of ongoing internal investigations into serious irregularities. The 2nd respondent contended that the continued misuse of ex parte orders by the Petitioner constitutes abuse of the Court's equitable jurisdiction and undermines the integrity of judicial processes. Response 11.The 1st respondent was represented by Wamalwa, who stated in his affidavit dated 10th March 2026 that he was the Chief Executive Officer of AFRICASTALKING (K) LIMITED, the 1st Respondent herein. Wamalwa stated that he was advice by his advocates that the prayers sought in the Applicant’s Notice of Motion are substantially identical to the remedies sought in High Court Milimani Commercial & Tax Division Civil Suit No. E656 of 2025, which is currently pending before a Court of competent jurisdiction. He annexed hereto extracts of the Plaint and pleadings filed in High Court, Milimani Commercial & Tax Division, Civil Suit No. E656 of 2025 showing the nature of the dispute and mark the same as “PW-1”. That the Applicant cannot properly litigate the same corporate governance issues simultaneously before this Honourable Court and the High Court as such Page 2 of 3 parallel proceedings offend the doctrine of res sub judice as provided under Section 6 of the Civil Procedure Act. That the Applicant is effectively seeking orders relating to restoration of access to the Mr. Samuel Gikandi’s corporate email systems, financial platforms, internal communication systems, and cloud-based infrastructure, which matters are central issues in the said High Court proceedings. That permitting the determination of the present Application would expose the parties to conflicting judicial determinations from Courts of concurrent jurisdiction. 12.Wamalwa further averred that the 2nd Respondent/Applicant has framed its current Application as though the dispute concerns the enforcement of employment-related rights, whereas the issues raised relate to control, management and governance of a limited liability company. That disputes relating to internal corporate governance and the management of companies are commercial matters falling within the jurisdiction of an arbitral tribunal or the Commercial Division of the High Court and not this Honorable Court whose jurisdiction is to determine employment matters. That contrary to the allegations made by the Applicant, the operational management of the 1st Respondent has continued in accordance with lawful corporate governance structures and in the best interests of the company and its stakeholders. That the 2nd Respondent/Applicant’s allegations of corporate paralysis, governance vacuum and operational disruption are greatly exaggerated and intended to improperly influence the Court into granting reliefs that would interfere with ongoing corporate governance processes. That the 2nd Respondent/Applicant is effectively inviting this Honourable Court to determine matters relating to directorial authority, corporate management structures and access to internal systems, which matters properly fall outside the jurisdiction of this Honorable Court. That the factual background relied upon and prayers sought in the application are completely novel and unrelated to the Petition filed by the Petitioner, therefore the application is effectively attempting un-procedurally commence a fresh suit via the Notice of Motion dated 2 March 2026. That owing to the reasons set out above, the Notice of Motion dated 2 March 2026 is legally untenable, abuse of court process and ought to be dismissed with costs. Decision 13.The court on perusal of orders sought in the application and grounds of the application by the 2nd Respondent was of the opinion that the court was called upon to interpret the meaning of the meaning of the order no. 5 by Lady Justice Rutto dated 25th August 2026 which stated-‘ that in the meantime and pending further directions /orders from court, the status quo with respect to the applicant’s employment shall be maintained.’ The court finds that the order only affected the petitioner’s employment and not the 2nd respondent’s status at the 1st respondent. The order cannot apply beyond the ordinary meaning of the term ‘status quo, which Order was intended to preserve the petitioner's contract of employment. 14.I have read the response , and my take is that the court order had nothing to do with the mandate of the 2nd respondent in the company. The order preserved only the petitioner's employment contract. 15.As to whether the application is merited, the court declined to set aside the order of 25th August 2025 by Lady Justice Rutto before the determination of the dispute on the employment of the petition. The order did not affect the mandate and role of the 2nd respondent, and any application of the order beyond the preservation of the petitioner's employment or to restrain the ordinary legal role of the 2nd respondent as director would amount to an abuse of court process. The court reiterates that the order only applied to preserve the employment of the petitioner and nothing more. The court never denied access to the 2nd respondent and any interpretation of the order to that effect is an abuse of the court process. Consequently, the order having not interfered with the 2nd respondent's access to the 1st respondent in his ordinary role, the court finds no basis to set it aside the same. 16.I found the preliminary objection dated 10th March 2026 irrelevant and misplaced to the application, as the court has jurisdiction to interpret and enforce its own order. The word subjudice is a Latin word meaning ‘under a judge for determination’ (Black's Law Dictionary, 10th edition, Garner, Ed). The application relates to an order of this court. It cannot then be said it is re-subjudice or the court lacks jurisdiction to decide on the application. 17.The application and the notice of preliminary objection are dismissed. Each party to bear its own costs. 18.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 3RD DAY OF JULY, 2026.JEMIMAH KELI,JUDGE.IN THE PRESENCE OF:Court Assistant: OtienoPetitioner -absent1st Respondent – absent2nd Respondent -absent