https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4689

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KWALE COUNTY COURT NAME: KWALE ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLC/E029/2024 PWANI MAONI VS SOSPLASHED LIMITED…………………PLAINTIFF VERSUS SOSPLASHED LIMITED……………………………….….1ST DEFENDANT NICOLETTE VAN DER PLAS ………………………. 2ND DEFENDANT JOHN LOCKHART MURE (suing on behalf of the south coast residents Association) ….3RD DEFENDANT **RULING** 1. **Introduction** 1. The Plaintiff, a company limited by shares filed vide the instant suit vide a plaint dated 22nd May 2024 through the firm of Alinaitwe, Osodo Advocates LLP seeking several reliefs as against the Defendants. The verifying affidavit accompanying the plaint was sworn by one Adrianus Maria Verhoef who deposed that he was a director and shareholder of the Plaintiff. 2. On the 29th June 2026 the firm of GS Mokua & Associates Advocates filed a Notice of Appointment of even date signed by Gwaro Steve Mokua Advocate. As per the notice, G S Mokua & Associates was appointed to act for the plaintiff. Simultaneously with the Notice of Appointment, counsel filed a Notice of Withdrawal of Suit also dated 29th June 2026. The two notices were supported by a Company Search (CR 12) showing the directorship of the plaintiff company as at 7th June 2026 and Board Resolution dated 5th June 2026 by the directors authorizing the appointment of GS Mokua & Associates Advocates to act for the plaintiff. 3. It was also stated in the resolution that the suit herein filed in the name of the plaintiff company was filed without the knowledge, approval or authority of the Board of Directors and that the directors do not support, approve or ratify any such proceedings hence instruction to withdraw the same. The Plaintiff thus sought to have the matter marked as withdrawn. 4. In response to the notice of withdrawal, Adrianus Maria Verhoef swore a Replying Affidavit on 10th July 2026. The same was filed by the firm of Alinaitwe, Osodo Advocates LLP. He asserts that he was a director and a shareholder of the Plaintiff as at the time of filling the suit as confirmed by a CR12 contained in the Plaintiff's List of Documents listing out the Directors and Shareholders of the plaintiff at the time. 5. He confirmed that at the time of filling suit, there was pending in court a dispute over the ownership and shareholding of the Plaintiff, being **Kwale High Court Commercial Case NO. 2 of 2024; Pwani Maoni Limited and Adrianus Maria Verhoef versus Jane Mueni Musyoka.** Judgment in the case was delivered on 26th September 2024 long after the instant suit was filled. He availed in evidence a copy of the said judgment. 6. It was that judgment that removed him from the directorship of the plaintiff company and awarded 99 shares to Festus Kalii Musyoka and 1 share to Jane Mueni Musyoka. 7. He deposes that he negotiated with the two, post judgment wherein they sold their shares to him and relinquished their position in the company to him. He annexed two copies of acknowledgement of payment dated 14th May 2026 signed by Festus Kalii and Jane Mueni Musyoka as evidence of the said payment and surrender of their shares in the plaintiff company. It was only in March 2026 that he realized that Jane Mueni Musyoka had fraudulently transferred all the shares to herself. He annexed a complaint letter dated 17th March 2026 that he wrote to the Registrar of Companies. 8. Jane Mueni Musyoka swore an affidavit on 16th July 2026 in response to Adrianus Maria Verhoef 's Affidavit. She asserts that she is a bona fide director and shareholder of the Plaintiff Company and disputed the capacity Adrianus Maria Verhoef to swear any affidavit on behalf of the Plaintiff company. She pointed out the judgment in Kwale High Court Case No. 2 of 2024 and noted that Adrianus Maria Verhoef's directorship and shareholding was declared to have been obtained fraudulently. 9. She asserts that the current directors of the Plaintiff as per the official records are Roselyne Moraa Achira, Susan Mwikali Mutua and Jane Mueni Musyoka. 10. With respect to the issue of surrender of and compensation for her stake in the company, she denies being compensated and asserts that no evidentiary proof has been tendered in support of the assertions therein. 11. She contends that the suit was filed on 28th May 2024, without instructions from the bona fide directors or shareholders, and no board resolution was attached indicating a resolution to file the suit or to relinquish their shares to Adrianus Maria Verhoef or anyone else and that Adrianus Maria Verhoef should bear the attendant costs of the suit for filing the suit without authority from bona fide directors or shareholders. 12. In further response to Adrianus Maria Verhoef 's Replying Affidavit, the 2nd Respondent and the director of the 1st Respondent, one Nicolette Van Der Plas filed an affidavit sworn on 17th July 2026. 13. She depones that Adrianus Maria Verhoef's Replying Affidavit sworn on 10th July 2026 is devoid of value as he has not been authorized to swear and file the said affidavit on behalf of the company. 14. **Determination** I have carefully considered the surmised affidavits and distill two issues for determination. a) Whether the suit ought to be withdrawn as sought. b) Who should bear the cost. **Whether the suit should be withdrawn**. Now, it would be pretentious of me, in the context of the instant proceedings to purport to be in a position to determine the legality of the current directorship of the plaintiff company. Such a determination can only be made in a full hearing in an appropriate suit as was the case in Kwale High Court Commercial Case No 2 of 2024, where parties are afforded the opportunity to tender evidence which is tested through cross-examination. The current suit being one between the plaintiff company and 3rd parties for compensation and damages affords no opportunity to substantively interrogate the internal affairs of the plaintiff company. Issues of whether the current directors are in office by virtue of a fraudulent transfer of shares therefore, can only be resolved in a substantive suit. This is more so bearing in mind the higher standard required to prove fraud. 15. It would suffice to state that, in Kwale High Court Commercial Case NO. 2 of 2024; Pwani Maoni Limited and Adrianus Maria Verhoef versus Jane Mueni Musyoka, where the legality of the directorship for the specific issue before the court, the court nullified Adrianus Maria Verhoef directorship and restored the company back to Jane Mueni Musyoka and Festus Kilii Musyoka. Though it is not clear whether that decree was filed with the Registrar of companies and whether it was executed and though it is also not clear when the current directors ie Roselyne Moraa Achira, Susan Mwikali Mutua and Jane Mueni Musyoka were appointed, what is clear is that as per the official record, the CR12, Roselyne Moraa Achira, Susan Mwikali Mutua and Jane Mueni Musyoka are the current directors. Whether or not they are legally in office is an issue beyond this court. 16. A resolution by Directors of a company confers authority to commit the company. In **Ochanda v EON Energy Limited [2025] KEHC 7964 (KLR)** the court observed: *“It is trite law that a company can sue in its own name* ***with the sanction of its Board of Directors*** *or by a resolution in a general or special meeting. It is during such meetings that authority is given to institute or defend a case on its behalf. It is therefore needless to say that an incorporated body has of* ***necessity to act through agents who are usually members of its Board of Directors.”*** A resolution duly signed by the current Directors of the Plaintiff; Roselyne Moraa Achira, Susan Mwikali Mutua and Jane Mueni Musyoka authorizing the appointment of the firm of G S Mokua & Associate and resolving to withdraw the suit was duly filed alongside the Notice of Appointment and Notice of Withdrawal of the suit. That resolution by the Directors of the plaintiff communicate the intention of the plaintiff company to discontinue the instant suit. 17. Order 25 rule 1 of the Civil Procedure Rule provides for the withdrawal of a suit by a Plaintiff. It provides: *“At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.”* In the case of **Priscilla Nyambura Njue v. Georhem Middle East Ltd Kenya Bureau of Standards (Interested Party) 2021 eKLR**, the court stated as follows: *“The right provided under Order 25 Rules 1 & 2 (1) is not fettered by any conditions; it is an absolute right which a plaintiff can exercise at his sweet will at any time before the judgment is delivered….”* Similarly, in the case of **Nicholas Kiptoo Arap Korir Salat v.Independent Electoral and Boundaries Commission & Others (2014) eKLR**, the Supreme Court of Kenya rendered itself on the issue in the following terms; *“A party’s right to withdraw a matter before court cannot be taken away. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”* It is clear by now that it was within their unfettered right as Plaintiff to withdraw its suit. **18. Who bears the cost** On the issue of costs, the 1st and 2nd Defendants through the affidavit sworn by the 2nd defendant have sought to have the matter withdrawn with costs to them. The Law provides that costs follow events unless the judge, for good reasons orders otherwise. Section 27 of the Civil Procedure Act provides: *(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all**necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:* *Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.* *(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.* Save for urging me to find that the cost should be met by Adrianus Maria Verhoef for allegedly instituting the suit without authority, no reasons were advanced to justify a departure from the default position that cost should follow the event meaning that the defendants against whom the suit has been withdrawn are entitled to costs of the suit. 19. As to who should bear the costs, Adrianus Maria Verhoef swore the affidavit verifying the contents of the plaint and instructed the firm of Alinaitwe, Osodo Advocates LLP to file the plaintiff’s suit which was filed on 28th May 2024. He was a director and a shareholder of the Plaintiff as at that time of filling the suit as confirmed by a CR12 contained in the Plaintiff's List of Documents listing out the Directors and Shareholders of the plaintiff at the time. The judgement that ousted him from Directorship and divested him off the requisite authority was delivered on 26th September 2024 several months after the suit had been filed. It would be unfair and inequitable to penalize him for losing the authority that he had at the time of filling suit. He cannot be ordered to personally bear the costs. In the end, I do allow the Notice of withdrawal of the suit dated the 29th June 2026. The suit herein is marked as withdrawn with cost to the defendants to be met by the plaintiff. File duly closed. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS 23RD DAY OF JULY 2026. HON. E.G NDERITU L J ELC KWALE In the presence of: - Mr Mokua for the Plaintiff Mr Abaga h/b for Mr Omwenga for the Defendants C/A M/s Halima