https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12978

Savla v Kachra & 2 others (Miscellaneous Application E195 of 1000) [2026] KEHC 12978 (KLR) (Commercial & Admiralty) (13 August 2026) (Ruling) Neutral citation: [2026] KEHC 12978 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Admiralty Miscellaneous Application E195 of 1000 PM Mulwa, J August 13, 2026 Between Nayan Mansukhlal Savla Applicant and Savla Mansukhlal Kachra 1st Respondent Sunil Mansukhlal Savla 2nd Respondent OM Millers Limited 3rd Respondent Ruling 1.The Applicant/Decree-holder Nayan Mansukhlal Salva filed the Notice of Motion application dated 10th May 2023 under the provisions of Section 1A, 1B, 3B and 38 of the Civil Procedure Act, Order 22 Rule 6 of the Civil Procedure Rules. The applicant seeks the following ordersi.Spentii.An order compelling the 1st Respondent/Judgment Debtor to sign and execute all requisite documents for the transfer of OM Millers Limited to the Applicant,iii.In the alternative, an order authorizing the Deputy Registrar of this Court to sign the said documents on behalf of the 1st Respondent,iv.Leave to file for costs incurred due to the 1st Respondent's non-compliance,v.Costs to be provided for. 2.The application is grounded in the affidavit sworn by the Applicant, Nayan Mansukhal Salva. He deposes that he instituted the underlying suit, which was subsequently referred to court-annexed mediation. The process culminated in a Mediation Settlement Agreement, which this Court adopted as a binding order on 9th November 2022. Under the terms of the settlement, the 1st Respondent agreed to hand over the 3rd Respondent company, OM Millers Limited, to the Applicant free of any liabilities. 3.He contends that a formal decree was issued on 15th December 2022 and duly served on the 1st Respondent's advocates on 23rd January 2023, alongside the requisite transfer execution documents. The Applicant deposes that, despite numerous follow-ups and the submission of a draft Share Transfer Agreement on 22nd February 2023 (as requested by the 1st Respondent's advocates), the 1st Respondent has, for over five months, continuously refused, neglected, or failed to execute the transfer forms. 4.He further contends he is apprehensive that the Respondents who remain in active control of the company’s daily operations, assets, and bank accounts, may dissipate or interfere with the business to his detriment 5.The 1st Defendant Mansukhlal Kachra Savla opposed the application through a replying affidavit sworn on 8th November 2023. He contends that the application is an abuse of the court process, alleging it replicates remedies sought in an earlier application dated 10th March 2022, which he argues was spent upon the adoption of the mediation agreement. He characterizes the requested orders restricting company operations as draconian measures that would effectively incapacitate OM Millers Limited. 6.The 1st Respondent admits the Applicant is his son and a shareholder, but claims his shareholding was ex-gratia with no capital invested. He is willing to transfer OM Millers Limited to the Applicant without liabilities, per the Court order. He cites two reasons for the delay: medical incapacitation from an accident requiring hospitalization at MP Shah Hospital, and ongoing family disharmony from multiple suits filed by the Applicant, including Children's Court cases and a Constitutional Petition. 7.He confirms receipt of the draft Share Transfer Agreement and states that he is merely awaiting the final audit report from the appointed accountants, Shantilal Gala & Company Accountants, to ascertain the precise extent of the 3rd Respondent's liabilities before executing the final instruments. Citing the close familial relationship, he prays that the parties be directed to resolve the execution logistics amicably. 8.The application was canvassed by way of written submissions. The Applicant filed written submissions dated 20th April 2026, while the Respondents' submissions are dated 21st April 2026. Analysis and determination 9.I have considered the Notice of Motion dated 10th May 2023, the affidavits in support and in opposition, and the parties' rival submissions. The singular issue for determination is whether the application is merited. 10.The 1st Respondent contends that the instant application constitutes an abuse of process, being similar to the application dated 10th March 2022, which he asserts is spent. I disagree. 11.The application dated 10th March 2022 sought interim preservation orders pendente lite. That application was overtaken when the parties entered into a consent order, mediated the dispute, and this Court adopted the settlement as a decree on 15th December 2022. The present application is not a re-litigation of the same issues; it seeks enforcement of that final decree. The cause of action is distinct, and the doctrine of res judicata is inapplicable. 12.The Applicant holds a valid decree of this Court dated 15th December 2022, ordering the 1st Respondent to hand over OM Millers Limited to the Applicant free of liabilities. The decree was duly served, and the Respondent admits receipt of the transfer documents. 13.Article 159(2)(c) of the Constitution promotes alternative dispute resolution. A mediation settlement adopted by the Court crystalizes into a judgment and decree, enforceable as such. 14.Further, Section 38 of the Civil Procedure Act empowers this Court to order execution of a decree. The section provides:Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree;(a)by delivery of any property specifically decreed;(b)by attachment and sale, or by sale without attachment, of any property;(c)by attachment of debts;(d)by arrest and detention in prison of any person;(e)by appointing a receiver; or(f)in such other manner as the nature of the relief granted may require. 15.The decree in this matter is for the delivery of shares and control of OM Millers Limited. The Respondent's delay is not justified. While his hospitalization is noted, it does not account for the entire period of non-compliance, particularly given his active participation in these proceedings through counsel. The multiplicity of suits filed by the Applicant against family members is irrelevant and does not absolve the Respondent of his duty to obey a court order. 16.The Respondent's reliance on an auditor's report is misplaced. The consent order of 9th November 2022 settled the issue of liabilities by directing a handover "without any liabilities." That term is final and cannot be revisited at this stage. 17.For the reasons set out above, I find that the Applicant's application dated 10th May 2023 is merited. I therefore make the following orders:i.The 1st Respondent shall, within fourteen (14) days from the date hereof, execute all documents necessary to transfer OM Millers Limited to the Applicant.ii.In default of compliance within the stipulated period, the Deputy Registrar of this Court is hereby authorized to execute all requisite transfer documents on behalf of the 1st Respondent, and such execution shall be valid and binding as if executed by the 1st Respondent himself.iii.The Applicant is at liberty to file and tax any costs reasonably incurred in implementing the decree in accordance with the Civil Procedure Act and the Advocates Remuneration Order.iv.The costs of this application are awarded to the Applicant.Orders accordingly. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF AUGUST 2026.PETER M. MULWAJUDGEIn the presence of:Ms. Tamlekha RespondentsCourt Assistant: Sharon