https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12683

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MIGORI** **HCCHRPET NO. E010 OF 2025** **IN THE MATTER OF MODEL ARTICLES FOR PRIVATE COMPANIES** **LIMITED BY SHARES** **FIDOH KEN’S OCHIENG……………………………………………………PETITIONER** **VERSUS** **ALEX KAENE……………………………………………...………….…1ST RESPONDENT** **WICCARE AFRICA LIMITED…………………………………………2ND RESPONDENT** **RULING** 1. Before me are two (2) applications coming up for ruling. The first is the, Petitioners’ Notice of Motion dated 8/12/2025 while the second is the Notice of Motion dated 18/3/2026 filed by the 1st Respondent. Directions for the 1st application were taken on 10/3/2023 and those for the 2nd application on 28/5/2026 that the two applications be disposed of by way of written submissions. 2. The Petitioners’ application seeks several temporary injunctive reliefs restraining the Defendants from withdrawing funds from any bank account and proceeding with the removal of the Petitioner from as a shareholder among other interim reliefs. 3. The Respondents’ Applications also seeks temporary injunctive reliefs restraining the Petitioner and or his agents from harassing and or intimidating the Respondent. 4. The two applications arise from the same set of facts and are closely intertwined. It is on that basis that the Court proceeds to determine both applications in this single ruling. **The Petitioners Application: (Notice of Motion dated 8th December 2025)** 1. The Plaintiffs’ Notice of Motion dated 8th December 2025 is brought under section 780 & 782 of the Companies Act as read together with decided Cases Law and all other enabling provisions of the Law. 2. In the application, the Petitioner seek, inter alia, orders that pending the hearing and determination of the Petition, the Respondents be compelled and/or restrained from withdrawing funds from 2nd Respondent’ bank account, reinstate the Petitioners’ mandatory approval mandates, allow the Petitioner take part in the management of the 2nd Respondent, maintenance of the status quo of the 2nd Respondent, both Respondents compelled to give account on the 2nd respondents expenditure and the Respondents be compelled to pay Petitioner his monthly salary. 3. The application is supported by affidavits sworn by the Petitioner, together with the documents annexed thereto. The Petitioners’ case, as deponed, is that the is the director/shareholder of the 2nd Respondent with 30% shares while the 1st Respondent owns 70% shares. 4. The Petitioner further depones that following a board meeting between him 2nd Respondent held on the 13th June 2024, they resolved that the Petitioner would be the Chef Executive Office (CEO) and the Managing Director while the Respondent would be the Executive Chairman and Secretary to the 2nd Respondent, and that all directors must sign in case of board resolutions and split board decisions. 5. It is the Petitioners’ case that the 1st Respondent in collusion with the others employees have been conducting the affairs of the 2nd respondent in a prejudicial manner to him. That the respondents have constructively removed him from the management of the company to the point that he cannot access the financial records of the 2nd Respondent. That under the instructions of the 1sr respondent, employees broke into the Petitioners’’ office, took away all the company documents and blocked his official email. 6. The Petitioner further state that all these has been done despite the existence resolutions of the board meeting held on 13/6/2024. That on 9/12/2024, the 1st respondent fraudulently attempted to remove him as a director through a purported sale of his shares to the 1st Respondent without his knowledge, using forged documents. 7. The Petitioner contend that the purported fraudulent transaction was being carried out by the Firm of Saende Law, which mistakenly shared the documents with the Petitioner, thus bringing the transaction to his knowledge. That the 1st Respondent tried to remove him as a director by changing CR 12. He had to write to the Registrar not to effect any changes unless he in physically present. That the 1st respondent is expecting a sum of Kshs. 900,000,000/= from a contact, the reason she is hell bent to remove the petitioner from the company. 8. The Petitioner further avers that the 1st Respondent has been coercing and intimidating employees to choose loyalty between him and 1st Respondent through insults and that the 1st respondent summarily dismissed an employee presumed to be loyal to the Petitioner. The dismissed employee has served the company with intentions to sue. 9. The Petitioner avers that the 1st respondent has made unilateral decision that disappropriately benefit him while sidelining the Petitioner. These decisions includes financially operating the 2nd Respondent without board consensus, inciting employees to break into and steal company documents in Petitioners’ possession, withholding financial records and bank account activities from the petitioner, making it impossible for the Petitioner to access company funds meant for the operation of the company and the Petitioners salary of not less than 2500 USD. 10. That the Petitioner is now afraid that the 1st Respondent is using his position as a façade to commit fraud, might be using the company funds illegally, misappropriating the company funds leading the legal and financial implications to the company. That the assets of the 2nd Respondent are in jeopardy and the resulting injury may be irreparable. He therefore urges the Court to grant the injunctive orders sought in order to preserve assets of the 2nd Respondent pending the determination of the suit. 11. The Respondents opposed the Petition and maintained that the Applicant had failed to establish any basis for the reliefs sought. They averred that the 2nd Respondent was incorporated pursuant to an agreement between the Applicant and the 1st Respondent, with the understanding that the shareholding structure would subsequently be adjusted in accordance with their initial arrangement. They denied the Applicant's allegations of forgery and maintained that any discrepancies in the share transfer documents resulted from an error on the part of the company's advocates, which was promptly acknowledged and rectified. 12. The Respondents further contended that the 1st Respondent solely sourced the capital invested in the company, including funds raised from investors, while the Applicant made no financial contribution. They alleged that the Applicant demonstrated poor financial management, failed to maintain proper records of expenditure, and authorized substantial fund transfers without accountability, thereby necessitating a forensic audit. 13. It was further their case that investigations revealed that the Applicant had incorporated and controlled Skillsphere Solutions Limited, which was subsequently engaged by the 2nd Respondent without disclosure of the Applicant's personal interest. They averred that the Applicant thereby placed himself in a position of conflict of interest, caused the company financial loss through inflated invoices and under-remittance to workers, and breached his fiduciary duties under the Companies Act. 14. The Respondents stated that following a Board meeting held on 8th November 2025, the Applicant's appointment as Chief Executive Officer was terminated, and a resolution passed removing him from that office. They further averred that the statutory process for his removal as a director was thereafter commenced in accordance with Section 139 of the Companies Act by issuance of the requisite special notice. According to the Respondents, the present proceedings were instituted solely to forestall that lawful process. 15. The Respondents denied allegations of intimidation, forgery, and financial impropriety on the part of the 1st Respondent, maintaining that all decisions taken were in the best interests of the company and in compliance with the law. They also disputed the Applicant's allegations regarding the anticipated carbon credit revenues and contended that no acts of oppression, unfair prejudice or mismanagement had been demonstrated to warrant the Court's intervention under Sections 780 and 781 of the Companies Act. They accordingly urged the Court to dismiss the Petitioners application with costs. The Petitioner filed a Supplementary Affidavit dated 5th March 2026 in which he reiterated the averments in his Notice of motion dated 8th December 2025. The Petitioners submissions are dated 5th March 2026 while the Respondents submissions are dated 23rd May 2026. In both submissions, the parties are in agreement that the main issue for consideration is whether the criteria for award of temporary injunctions have been met. Through the cited authorities, the Petitioner contends that they have met the standards and the orders sought should be granted. The Respondent on the other hand maintains that the Petitioner has not met the criteria for grant of interim orders. The Respondent filed an application dated 18th March 2026 seeking for the following orders; 1. Spent 2. THAT this Honourable court be pleased to grant a temporary injunction restraining the Petitioner by himself, his employees, servants, agents or anybody claiming through him from threatening, intimidating, harassing the 1st Respondent and the employees of the 2nd Respondent and interfering with the operations of the 2nd Respondent pending the hearing and determination of this application. 3. THAT this Honourable court be pleased to grant a temporary injunction restraining the Petitioner by himself, his employees, servants, agents or anybody claiming through him from threatening, intimidating, harassing the 1st Respondent and the employees of the 2nd Respondent and interfering with the operations of the 2nd Respondent pending the hearing and determination of this Petition. 4. THAT the OCS, Bondo Police Station do assist with the enforcement of this order. 5. THAT costs of this application be provided for. The 1st Respondent's application is premised on the contention that the Petitioner has, through a letter dated 12th March 2026, threatened the 1st Respondent and employees of the 2nd Respondent with arrest should they access the company's operational premises. According to the 1st Respondent, the said letter has created apprehension among the company's officers and employees that the Petitioner intends to disrupt the company's operations by causing their arrest or otherwise interfering with the company's activities. The Respondents also maintain that the Petitioner has not been excluded from the affairs of the company. They aver that he continues to receive notices of Board meetings but has voluntarily declined to attend them on the ground that the dispute is pending before Court. Consequently, they contend that any allegation that he has been shut out of the company's management is unfounded. In his Replying affidavit sworn on 2nd July 2026, the Petitioner refuted the claims in the application terming them lies. He further stated that his letter complained against by the Respondent was written in good faith as the Respondent kept sidelining him yet he is a co-owner of the 2nd Respondent. That the letter does not contain threat of any nature and the Responding is misleading the court. The Petitioner further averred that the 1st Respondent has without his knowledge and authority changed the 2nd Respondents CR 12 with the sole aim of kicking him out of the company. Direction on this application was taken and the Respondent filed submissions to this application but the Petitioner through a letter chose to rely on their Replying affidavit. ANALYSIS AND DETERMINATION Having considered the pleadings, the two applications, the affidavits on record, and the rival submissions by the parties, the Court is of the view that the issue for determination in both applications is whether the respective Applicants have both satisfied the threshold for the grant of interlocutory injunctive relief. The principles governing the grant of interlocutory injunctions are well settled. They were enunciated by the Court of Appeal in **[Nguruman Limited v Jan Bonde Nielsen & 2 Others CA No. 77 of 2012](https://kenyalaw.org/akn/ke/judgment/kehc/2017/6131%22%20%5Ct%20%22_blank) (2014) eKLR, and Giella v Cassman Brown (Supra)** where the Court stated: -“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by damages; and if the court is in doubt, then it can decide the application on a balance of convenience.” These principles are sequential and not conjunctive. An applicant who fails to establish a prima facie case with a probability of success cannot obtain an injunction, and the Court need not consider the other limbs. The Petitioner alleges that he held 30% of the issued shares in the 2nd Respondent and that the Respondents have unlawfully and fraudulently removed him as both shareholder and director through forged documents and alterations made to the company's statutory records. The Respondents, on the other hand, maintain that the Petitioner's removal was undertaken pursuant to lawful corporate processes and deny all allegations of fraud. The material before the Court demonstrates that there is no dispute that the CR12 has since been altered. Equally, there is a serious dispute as to the legality of the process through which those changes were effected. The Petitioner alleges fraud and forgery while the Respondents contend that the alterations were lawfully undertaken. Whether the Petitioner's shares were lawfully transferred, whether the statutory procedures prescribed under the Companies Act were complied with and whether the impugned corporate documents are genuine are questions which can only be conclusively determined after the parties have adduced oral and documentary evidence at the trial. The Court is therefore satisfied that the Petition raises serious triable issues concerning the Petitioner's proprietary rights in the company and the alleged oppressive conduct under Sections 780 and 781 of the Companies Act. Accordingly, the Petitioner has established a prima facie case. It is not disputed that the impugned CR12 has already been filed. Consequently, the prayer restraining its alteration has been overtaken by events. However, the Court retains jurisdiction to preserve the subject matter of the Petition. Without determining the validity of the impugned CR12, and having found that the Petitioner has established an arguable case regarding the legality of the impugned changes, the Court considers it appropriate to preserve the Petitioner's alleged rights pending trial by restraining the Respondents from implementing or relying upon the impugned alterations and from making any further changes to the company's shareholding, directorship or statutory records until the Petition is heard and determined. The Court is therefore satisfied that the Petitioner might suffer irreparable injury which would not adequately be compensated by damages if preservatory orders are not issued. The balance of convenience therefore favour preserving the company's present position while preventing any further alterations to the ownership or corporate records pending determination of the Petition. The Respondents in their application seek orders restraining the Petitioner from threatening, intimidating or harassing the 1st Respondent and employees of the company and from interfering with the company's operations. The application is principally founded upon the Petitioner's letter dated 12th March 2026, which the Respondents interpret as threatening criminal sanctions against company officers should they continue accessing the company's premises. The Petitioner disputes that interpretation and maintains that the letter merely sought to protect his rights as a shareholder and director and did not amount to any threat. Having considered the contents of the affidavits and the material exhibited, the Court notes that the Respondents have not placed before the Court evidence demonstrating that the Petitioner has actually procured the arrest of any employee, disrupted the company's operations, or engaged in acts of violence or intimidation. The apprehension expressed by the Respondents is largely founded upon the wording of the impugned correspondence. Nevertheless, the Court considers it necessary to remind both parties that once a dispute has been placed before the Court, neither party should resort to self-help measures calculated to intimidate the other or interfere with the management of the company outside lawful processes. Corporate disputes ought to be resolved through the mechanisms provided under the Companies Act and through the judicial process. Although the evidence presently before the Court does not justify the broad injunctive orders sought by the Respondents, the Court is satisfied that an order directing both parties to maintain peace and refrain from interfering with the company's operations pending the hearing of the Petition would best preserve the subject matter of the dispute. The Court is satisfied that the Petitioner's application succeeds only to the extent necessary to preserve the status quo pending the hearing and determination of the Petition. The Respondents' application has not established sufficient grounds for the grant of the prohibitory injunctions sought but the circumstances warrant directions aimed at ensuring orderly conduct by all parties pending trial. Accordingly, the Court makes the following orders: 1. Pending the hearing and determination of the Petition, the Respondents are restrained from making or causing to be made any further alterations to the statutory records of the 2nd Respondent, including the register of members, register of directors, or any filings with the Registrar of Companies affecting the Petitioner's rights as a shareholder or director, without leave of this Court. 2. Pending the hearing and determination of the Petition, the Respondents shall preserve all statutory registers, books of account, financial records, electronic records and other corporate records of the 2nd Respondent, and shall not dispose of or destroy any such records. 3. The prayers seeking reinstatement of the Petitioner's bank signing mandate, reinstatement as Chief Executive Officer or Managing Director, payment of salary, and orders compelling his participation in the day-to-day management of the 2nd Respondent are declined at this interlocutory stage, the same being in the nature of mandatory relief that would substantially determine issues reserved for trial. 4. The Respondents' Notice of Motion dated 18th March 2026 is dismissed. 5. For the avoidance of doubt, both parties shall refrain from acts of intimidation, harassment or interference with each other's lawful exercise of rights and shall ensure that the affairs of the 2nd Respondent are conducted in accordance with the Companies Act pending the determination of the Petition. 6. Costs of both applications shall be in the cause. It is so ordered. **DATED, SIGNED AND DELIVERED AT MIGORI THIS 30TH OF JULY 2026** **ANNE ONG’INJO** **JUDGE** **In the presence of:-** Victor – Court Assistant Calvince – Court Assistant Mr. Jura Advocate for the Petitioner Mr. Charana Advocate for the Respondents.