https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7623

Magnus Aircraft Africa Limited & 2 others v Dimespeak Enterprise Africa Ltd & another (Commercial Case E043 of 2024) [2026] KEHC 7623 (KLR) (Commercial and Tax) (29 May 2026) (Ruling) Neutral citation: [2026] KEHC 7623 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E043 of 2024 PM Mulwa, J May 29, 2026 Between Magnus Aircraft Africa Limited 1st Plaintiff Captain Dr. Margaret Wanjuku Ikuah 2nd Plaintiff N3M Consulting And Advisory Limited 3rd Plaintiff and Dimespeak Enterprise Africa Ltd Interested Party and Magnus Aircraft Zrt Defendant Ruling 1.This ruling is in respect to three applications, that is two applications respectively dated 2nd February 2024 and 8th October 2024 by the Plaintiffs, and the application dated 11th December 2024 by the Interested Party. Application dated 2nd February 2024. 2.The Plaintiffs/Applicants moved the Court under Sections 780 and 782 of the Companies Act, Order 40 Rules 1(a), 2 and 4(1) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure. The Applicants sought an injunction restraining the Defendant from interfering with the 2nd Plaintiff’s shareholding in the 1st Plaintiff company, removing her as the sole signatory to the company’s Bank of Africa accounts, and interfering with her mandate to operate the accounts and settle the company’s accrued debts and liabilities. They further sought costs of the application. 3.In the supporting affidavit sworn by the 2nd Plaintiff, she deponed that the Defendant and the 2nd Plaintiff were the only shareholders of the 1st Plaintiff company, with the Defendant holding 70,000 shares and the 2nd Plaintiff holding 30,000 shares. She averred that the 3rd Plaintiff had entered into a Business Development Agreement with the Defendant for the promotion and sale of aircraft and related products across several African countries, under which substantial commissions had accrued and further anticipated sales were expected over the ten-year duration of the agreement. She further stated that she was entitled to remuneration and reimbursement of expenses both as Managing Director and Brand Ambassador of the 1st Plaintiff. 4.The 2nd Plaintiff further deponed that the Defendant had unlawfully attempted to remove her as signatory to the company bank accounts through correspondence to Bank of Africa authored by one Laszlo Boros, and had engaged external consultants to freeze the accounts on allegations of unauthorized withdrawals. She asserted that the Defendant’s actions were unlawful, oppressive and intended to disenfranchise her from management and ownership of the company. According to the Applicants, the Defendant had also failed to settle accrued debts owed to the Plaintiffs and third parties despite the availability of funds in the company accounts, and had further breached the Business Development Agreement by purporting to appoint another dealer within Kenya during the subsistence of the agreement. 5.The Applicants maintained that unless the injunctive orders sought were granted, the 2nd Plaintiff risked being unlawfully removed from management and operation of the company, thereby paralyzing the company’s operations and occasioning irreparable loss and damage. They urged the Court to intervene and preserve the status quo pending hearing and determination of the suit. Application dated 8th October 2024 6.This was brought under Ordre 39 Rule 5 of the Civil Procedure Rules, Order 51 Rule 1, Sections 1A, 1B and 3A of the Civil Procedure Act. The Applicants sought orders that pending the inter partes hearing and determination of the application and the suit, the two Magnus Fusion 212 aircraft bearing serial numbers MG-11-031 and MG-11-032 brought into Kenya by the Defendant for sale be attached, detained and preserved at the Kenya Wildlife Service Airwing Hangar facility at Wilson Airport, Nairobi, as security for the Plaintiffs’ claims, and that the Defendant be restrained from alienating, selling, removing or otherwise disposing of the aircraft pending determination of the suit. The Applicants also sought costs of the application. 7.The application was supported by the affidavit of Captain Dr. Margaret Wanjiku Ikuah, the 2nd Plaintiff, sworn on 8th October 2024. She deponed that she was a Director of the 1st Plaintiff and duly authorized to swear the affidavit on behalf of the Plaintiffs. She reiterated that the Plaintiffs had commenced proceedings against the Defendant seeking unpaid remuneration, commissions from aircraft sales and anticipated sales, and other related claims amounting to several millions of United States Dollars. 8.The deponent further stated that on 7th February 2024, the Court had issued interim orders restraining the Defendant from interfering with her ownership of shares in Magnus Aircraft (Kenya) Limited, removing her as sole signatory to the 1st Plaintiff’s bank account at Bank of Africa Kenya Limited, and interfering with her mandate to operate the account and settle accrued debts and liabilities of the company. She averred that notwithstanding the pendency of the proceedings and the interim orders, the Defendant had failed to file a defence or meaningfully engage in settlement discussions. 9.The 2nd Plaintiff further deponed that the Defendant had imported the subject aircraft into Kenya for purposes of sale and annexed photographs of the aircraft together with a statement dated 2nd August 2024 allegedly confirming delivery of the aircraft into Kenya. She maintained that given the magnitude of the Plaintiffs’ claims and the absence of any defence by the Defendant, it was necessary for the Court to preserve the aircraft as security pending hearing and determination of the suit. According to the deponent, unless restrained, the Defendant was likely to sell or move the aircraft beyond the jurisdiction of the Court thereby rendering the suit nugatory. 10.The Defendant opposed the application through the replying affidavit of László Boros, its Chief Executive Officer, sworn on 18th October 2024 who deponed that he was duly authorized and competent to swear the affidavit on behalf of the Defendant. He averred that the 2nd Plaintiff lacked authority to swear the supporting affidavit on behalf of the 1st Plaintiff. The Defendant further stated that it had already filed an application dated 12th February 2024 seeking referral of the dispute to arbitration pursuant to Clause 20.9 of the Business Development Agreement dated 6th July 2023. According to the Defendant, filing a defence would have amounted to submission to the jurisdiction of the Court and acknowledgment of the Plaintiffs’ claims contrary to Section 6 of the Arbitration Act. The Defendant also contended that it had not been served with summons to enter appearance and was therefore under no obligation to file a defence. 11.The deponent further accused the 2nd Plaintiff of misleading the Court and deponed that the supporting affidavit contained falsehoods intended to procure prejudicial orders against the Defendant. He asserted that the aircraft referred to in the application had already been sold, shipped and delivered to third parties and were therefore no longer the property of the Defendant. In his view, the preservatory orders sought would prejudice innocent third parties who had already purchased the aircraft. 12.The Defendant additionally averred that the Plaintiffs’ claims were unsupported, exaggerated and devoid of evidentiary basis. It was further deponed that following issuance of interim court orders, the 2nd Plaintiff withdrew all funds from the 1st Plaintiff’s bank account thereby crippling the company’s operations, and was now using the court process to frustrate and strong-arm the Defendant. Consequently, the Defendant maintained that the application was frivolous, vexatious, brought in bad faith and constituted an abuse of the court process, and urged the Court to dismiss the same with costs. 13.The Defendant further opposed the Plaintiffs’ applications through the replying affidavit of Jimmy Wanjala Wafula, the Defendant’s East African Representative. He deponed that the dispute arose from a deteriorated commercial relationship between the parties following the incorporation of the 1st Plaintiff in 2018 and the execution of a Business Development Agreement dated 6th July 2023 between the Defendant and the 3rd Plaintiff for promotion of aircraft sales in Africa. 14.According to the Defendant, the relationship was terminated in November 2023 due to the 3rd Plaintiff’s non-performance, whereupon the Defendant appointed Aerosim Private Air Ltd as its new dealer. The deponent further noted that the Plaintiffs subsequently instituted the present suit together with multiple interlocutory applications, including the application dated 8th October 2024 seeking attachment of two aircraft as security. 15.The Defendant denied the legality of the 2nd Plaintiff’s alleged 30,000 shareholding in the 1st Plaintiff, contending that the shares were fraudulently transferred without requisite approvals and in contravention of the Companies Act, and that the matter was the subject of ongoing criminal investigations. While acknowledging that the 2nd Plaintiff was a signatory to the company bank accounts, the Defendant accused her of financial mismanagement, unauthorized withdrawals and unilateral control of company finances to the detriment of the company and other directors. It was asserted that the Defendant’s actions in raising concerns with the bank were lawful measures intended to protect the company’s assets and ensure proper corporate governance. 16.The Defendant further denied allegations of oppression and prejudice, maintaining that its conduct was lawful and aimed at protecting the company from the 2nd Plaintiff’s alleged breaches of fiduciary duty and irregular conduct. The Defendant also denied liability under the Business Development Agreement, contending that the 3rd Plaintiff failed to meet sales and marketing targets, failed to perform contractual obligations and failed to provide proof of finalized transactions to justify claims for commissions. Consequently, the Defendant maintained that the appointment of Aerosim Private Air Ltd as a dealer was lawful and occasioned by the 3rd Plaintiff’s inefficiency and non-performance. 17.The Defendant disputed the Plaintiffs’ claims for remuneration, commissions and anticipated earnings amounting to millions of United States Dollars, contending that the claims were speculative, unsupported and devoid of documentary proof. It further denied that the Civil Aviation (Licensing of Air Services) Rules requiring 51% local ownership applied to the 1st Plaintiff’s operations, arguing that the company was engaged in manufacturing, assembly and sale of aircraft rather than provision of internal air services. The Defendant therefore maintained that its shareholding structure complied with applicable law. 18.In opposition to the application for attachment of the aircraft, the Defendant contended that the Plaintiffs had failed to establish any legal basis for detention of the aircraft or demonstrate any risk of unlawful removal from Kenya. It was averred that the aircraft had been lawfully imported into the country for business purposes and that certificates of airworthiness were ordinarily obtained by purchasers rather than manufacturers or sellers. The Defendant further dismissed references to an alleged USD 20 million investment from George Soros as speculative and irrelevant to the dispute. 19.Finally, the Defendant maintained that the Plaintiffs had failed to establish a prima facie case warranting the grant of injunctive or preservatory orders, and contended that the applications constituted an abuse of the court process intended to interfere with the Defendant’s lawful business operations before determination of the suit. The Defendant accordingly urged the Court to dismiss the applications with costs. Application dated 11th December 2024 20.This application, by the Interested Party seeks to set aside, vary and or vacate the orders issued on 13th November 2024. 21.The application is supported by the affidavit of Hassan Aden Ibrahim, the Director of the Interested Party. He averred that company entered into a sale agreement dated 26th June 2021 for the purchase of the two aircrafts known as Magnus Fusiin 212 Aircraft bearing serial no. MG – 11-031 and MG- 11- 032 . The interested party is the rightful owner of the aircraft having purchased the same from the Defendant. That the orders issued herein are in blatant breach of the interested party’s right to own property under Article 40 of the constitution. He avers that the Interested Party stands to suffer irreparable loss and damage from the orders of the court issued on 13th November 2024. 22.The Plaintiff opposed the application through the replying affidavits of Captain Dr. Margaret Wanjiku Ikuah sworn on 30th July 2025 and 31st July 2025. The Plaintiffs averred that the application was a product of collusion between the Defendant and the Interested Party aimed at defeating the interim preservation orders issued by the Court. They contended that if indeed the aircraft had been sold in 2022 as alleged, the Defendant ought to have disclosed the same immediately upon issuance of the interim orders instead of waiting until after the orders had been granted. The Plaintiffs maintained that the aircraft subject of the proceedings were manufactured and imported into Kenya in 2024 and were therefore unrelated to the alleged 2022 sale agreement. 23.The Plaintiffs further challenged the validity of the impugned sale agreement on grounds that it identified the seller as Magnus Aircraft Corp. and not the Defendant, failed to specify the serial numbers of the aircraft allegedly purchased, and was executed by a person who was not a director of the Interested Party. They also averred that the Interested Party failed to complete payment for the aircraft and that no 2024 sale agreement existed in respect of the aircraft currently detained. According to the Plaintiffs, the Interested Party had failed to produce any bill of sale, registration documents or aviation authority records capable of proving ownership of the aircraft. 24.The Plaintiffs deponed that the Defendant imported the aircraft into Kenya in 2024 and actively marketed them for sale to various entities within Kenya. They stated that the aircraft constituted the only known assets of the Defendant within the jurisdiction and that the preservatory orders were necessary to safeguard the Plaintiffs’ claims and prevent dissipation of the assets before determination of the suit. The Plaintiffs further asserted that the Interested Party’s allegations of violation of proprietary rights were premature since the matter remained at an interlocutory stage and no substantive rights had been determined by the Court. 25.The Plaintiffs contended that the Interested Party had since been joined in the proceedings and afforded an opportunity to ventilate its position through submissions, and therefore no prejudice had been occasioned. They further averred that the safest course was to preserve the aircraft pending hearing and determination of the suit and urged the Court to dismiss the Interested Party’s application with costs. 26.The three applications were heard together by way of written submissions. Analysis and determination 27.I have considered the three applications, the affidavits filed in support and opposition thereto, together with the rival submissions by counsel. The following issues arise for determination:a.Whether the Plaintiffs have established grounds for the grant of the injunctive orders sought in the application dated 2nd February 2024.b.Whether the Plaintiffs have satisfied the legal threshold for attachment and preservation of the aircraft in the application dated 8th October 2024;c.Whether the Interested Party has established sufficient grounds to warrant setting aside, variation and/or vacation of the orders issued on 13th November 2024; and.d.Who should bear the costs of the applications? Whether the Plaintiffs have established grounds for the grant of the injunctive orders 28.A successful applicant must establish a prima facie case with a probability of success, irreparable injury that cannot be compensated by damages if the injunction is not granted, and the balance of convenience tilts in favour of granting the injunction. (See Giella v Cassman Brown & Co. Ltd (1973) EA 358). 29.The Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others (2014) eKLR further emphasized that the three conditions are sequential and distinct hurdles to be surmounted. The Court stated that if a prima facie case is not established, the court need not proceed to consider irreparable injury or the balance of convenience.“...in considering whether or not a prima facie case has been established, the Court does not hold a mini trial and must not examine the merits of the case closely.” 30.A prima facie case is one which on evidence presented, there exists a right which has apparently been infringed by the opposite party. (See Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) KLR). 31.The 2nd Plaintiff swore that she holds 30,000 shares and the Defendant 70,000 shares in the 1st Plaintiff, that she is the Managing Director and Brand Ambassador entitled to remuneration and reimbursement, and that the Defendant has attempted to remove her as signatory and interfere with her mandate. The Defendant disputes the legality of the share transfer and alleges fraud and criminal investigation. On the evidence filed, I find there is a triable dispute concerning share ownership, management authority and alleged mismanagement. 32.At this interlocutory stage, the Court is not called upon to conclusively determine the legality of the parties’ respective shareholding positions or whether the transfer of shares complained of was fraudulent. That remains a matter for trial upon the taking of evidence. The Court is only required to determine whether the 2nd Plaintiff has demonstrated a prima facie case deserving interim preservation. 33.In view of the evidence placed before the Court, it is in the interest of justice that I find the status quo ought to be issued to preserve the substratum of the dispute. 34.On the issue of irreparable harm, the Plaintiffs have shown that removal of the 2nd Plaintiff’s signatory status and interference with account mandates risks paralysis of the company’s operations and potential dissipation of funds and business opportunities. The Defendant’s actions (correspondence to the bank, engagement of consultants to freeze accounts) if continued, could irreversibly affect the company and third-party creditors/customers. Conversely, the Defendant’s assertion of corporate governance concerns and alleged mismanagement, if established at trial, may justify protective measures. 35.On balance, however, and in the absence of conclusive proof that the 2nd Plaintiff’s conduct was unlawful or that she lacked authority to act, the balance of convenience favors preservation of the status quo pending final determination. Damages may be an inadequate remedy for loss of business goodwill and of control of company finances. 36.In the circumstances, I find merit in the application dated 2nd February 2024. Whether the Plaintiffs have satisfied the legal threshold for attachment and preservation of the aircraft 37.The application dated 8th October 2024 was principally brought under Order 39 Rule 5 of the Civil Procedure Rules which provides as follows:(1)Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him(a)is about to dispose of the whole or any part of his property;(b)is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security(2)The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.(3)The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. 38.The purposes of any order that should be issued under Order 39 Rules 5 and 6 of the CPR is to prevent the Defendants or would-be judgment-debtor from dissipating his assets as to have the effect of obstructing or delaying the execution of any decree that may be passed against him. (See Kanduyi Holdings Limited V Balm Kenya Foundation & Another [2013] eKLR). 39.The question then is whether the Applicant has made out a case to warrant the grant of the application for attachment before judgment. In Kuria Kanyoko t/a Amigos Bar and Restaurant v Francis Kinuthia Nderu, Helen Njeru Nderu and Andrew Kinuthia Nderu [1988] 2 KAR 1287-1334 the Court of Appeal stated as follows:“The power to attach before judgement must not be exercised lightly and only upon clear proof of the mischief aimed at by order 38, Rule 5, namely that the Defendant was about to dispose of his property or to remove it from the jurisdiction with intent to obstruct or delay any decree that may be passed against him.” 40.The Plaintiffs contend that the aircraft constitute the only known assets of the Defendant within the jurisdiction and that unless preserved, the Defendant is likely to dispose of them thereby rendering the suit nugatory. The Defendant, on the other hand, maintains that the aircraft had already been sold to third parties and were no longer its property. 41.The Interested Party has indeed come before Court asserting ownership of the aircraft by virtue of a sale agreement allegedly executed in 2021. However, the Plaintiffs seriously challenge the authenticity and applicability of the said agreement to the aircraft presently in Kenya, contending that the aircraft currently detained were manufactured and imported in 2024. 42.At this interlocutory stage, the Court is unable to conclusively determine the competing claims of ownership without the benefit of viva voce evidence and cross-examination. What is evident, however, is that the ownership and proprietary status of the aircraft remain seriously contested. 43.I have also considered the Plaintiffs’ apprehension that the aircraft may be moved out of the jurisdiction before determination of the suit. Given the nature of the assets in question, being movable aircraft capable of relocation beyond the jurisdiction of the Court, the apprehension cannot be said to be fanciful or unfounded. 44.In the circumstances of this case, I am persuaded that preservation orders are necessary so as to safeguard the subject matter of the proceedings pending final determination of the dispute. Preservation of the aircraft does not amount to a final determination of ownership rights but merely secures the substratum of the suit. 45.I am therefore satisfied that the Plaintiffs established sufficient basis for the preservatory orders issued in relation to the aircraft. Whether the Interested Party has established sufficient grounds to warrant setting aside, variation and/or vacation of the orders issued on 13th November 2024 46.The law regarding the setting aside of interlocutory orders is clear. Under Order 40 Rule 7 of the Civil Procedure Rules, the Court may discharge, vary or set aside an order of injunction upon application by any dissatisfied party. The discretion of the Court, however, must be exercised judiciously and upon sufficient cause being shown. 47.There are no limits or restrictions on the judge’s discretion to set aside or vary an ex-parte judgment except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. (See Patel v E.A. Cargo Handling Services Ltd 1974 E.A 75). 48.The Interested Party contends that it lawfully purchased the aircraft and that the preservation orders violate its constitutional right to property under Article 40 of the Constitution. However, as already observed, ownership of the aircraft remains a highly contested issue. 49.The documents produced by the Interested Party have been challenged by the Plaintiffs on several fronts, including the identity of the seller, absence of serial numbers corresponding to the impugned aircraft and lack of registration documentation confirming ownership. These are matters not capable of definitive resolution at the interlocutory stage. 50.Further, the Court notes that the Interested Party has since been joined to these proceedings and has been afforded full opportunity to ventilate its claim and place evidence before Court. In those circumstances, I am not persuaded that the Interested Party has suffered prejudice incapable of compensation or that sufficient grounds have been demonstrated to warrant setting aside the preservatory orders altogether. 51.The justice of the matter, in my considered view, lies in maintaining the preservatory orders pending full hearing of the suit so that the competing proprietary claims may be conclusively determined upon evidence. Vacating the orders at this stage may expose the subject matter to dissipation and potentially render the proceedings nugatory. 52.In the result, I find no merit in the Interested Party’s application dated 11th December 2024. 53.Accordingly, the Court makes the following orders:a.The Plaintiffs’ application dated 2nd February 2024 is hereby allowed, an injunction be and is hereby issued restraining the Defendant from interfering with the 2nd Plaintiff’s shareholding in the 1st Plaintiff company, removing her as the sole signatory to the company’s Bank of Africa accounts, and interfering with her mandate to operate the accounts and settle the company’s accrued debts and liabilities pending the hearing and determination of the suit.b.The Plaintiffs’ application dated 8th October 2024 is hereby allowed and the preservatory orders in respect of the aircraft bearing serial numbers MG-11-031 and MG-11-032 are hereby confirmed pending hearing and determination of the suit.c.The Interested Party’s application dated 11th December 2024 is dismissed.d.The costs of the three applications shall abide the outcome of the main suit.It is so ordered RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF MAY 2026.P.M MULWAJUDGEIn the presence of:Ms. Gecaga h/b for Mr. Karungo for 1st & 2nd PlaintiffsMr. Angaya for 3rd PlaintiffMs. Wambui h/b for Mr. Waweru for DefendantMs. Mwangi h/b for Mr. Abdullahi for Interested PartyCourt Assistant: Sharon