Patani v Patani & 3 others (Civil Case 438 of 2013) [2026] KEHC 8596 (KLR) (Civ) (18 June 2026) (Judgment)

Patani v Patani & 3 others (Civil Case 438 of 2013) [2026] KEHC 8596 (KLR) (Civ) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8596 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 438 of 2013 JN Mulwa, J June 18, 2026 Between Shobhanaben Pankaj Kumar Patani Plaintiff and Pradeep Harakchand Patani 1st Defendant Mahendra Harakchand Patani 2nd Defendant Drop In Limited 3rd Defendant Registrar Of Companies 4th Defendant Judgment 1.By a plaint dated 19/08/2013, Shobhanaben Pankaj Kumar Patani (hereafter the Plaintiff) sued Pradeep Harakchand Patani, Mehendra Harakchand Patani, Drop In Limited and Registrar of Companies (hereafter the 1st, 2nd, 3rd & 4th Defendant) seeking judgment as against the Defendants by way of-;a.A full disclosure of all the financial accounts as well as annual returns including annual tax returns of the 3rd Defendant company for the year 2006 till date.b.Provision of the 3rd Defendant Company’s Bank Statements for the purpose of reconciliation and due diligence.c.All other necessary information relating to the day to day operations of the 3rd Defendant Company that will afford the Plaintiff an opportunity to learn about the same.d.That this honorable Court does issue an order ensuring the Plaintiff is henceforth allowed to enforce her right to participate in the functioning of the 3rd Defendant Company and is not hindered or obstructed from carrying out her duties as an equal shareholder/director of the 3rd Defendant.e.Special damages to be particularized after discoveries and or forensic reports.f.The Plaintiff’s directors’ fees/emoluments from the year 2005 till date.g.Any other relief this honorable Court deems fit to grant.h.Costs of this suit.i.Interest on (b), (c), and (e) above at Court rates from the date of filing until payment in full. 2.The Plaintiff states that she is a life director of the 3rd Defendant together with the 1st and 2nd Defendants who are brothers to the Plaintiff’s late husband – Pankaj Harakchand Patani, who passed away in 1995 thereby dispensing his rights of directorship under the 3rd Defendant through a Board of Directors’ resolution, that the Plaintiff received all of her late husband’s shares in the 3rd Defendant company consequently making her equal shareholder alongside the 1st and 2nd Defendant. 3.That on or about 21/05/2013, the 3rd Defendant through its secretary called for an Extraordinary General Meeting (EGM) for 12/06/2013 with the sole agenda thereof was the removal of the Plaintiff as a director of the 3rd Defendant. The Plaintiff further claims that she appointed one Saahil Patel to act as proxy to vote on her behalf at the said meeting, with a copy of the duly executed proxy form delivered to the 3rd Defendant’s secretary. 4.That on the date of the said meeting, despite the proxy’s protestation against the said motion, it was carried with two (2) votes against one (1), with the 1st and 2nd Defendants who voted in favour of the motion purportedly relying on a ruling in Nairobi HCCC No. 661 of 2009 as the basis to ouster the Plaintiff. 5.The Plaintiff goes on to state that prior to the meeting, she had not been supplied with any books of accounts, the annual returns filed on behalf of the 3rd Defendant from the year 2006, as well as her director’s fees/emoluments from the year 1995 and so she holds the 1st and 2nd Defendants in breach. 6.The 1st, 2nd & 3rd Defendants filed a statement of defence dated 14/12/2019 denying the key averments in the plaint. They went on to state that the Plaintiff sometime in 1996 relocated to the United Kingdom and took up permanent residence as she was not a Kenya citizen at all material times relevant to the suit. 7.It was further claimed that pursuant to the Plaintiff’s departure, she could not work as a director of the 3rd Defendant without a work permit and that having not taken out one, she could not participate in the management of the 3rd Defendant or receive remuneration. That it was on the premise of the above, they moved to have the Plaintiff terminated as a director, which occurred lawfully. 8.Therefore, the Plaintiff having abdicated her responsibilities as a director of the 3rd Defendant she waived any rights and benefits accruing to her whereas the cause of action in Nairobi HCCC No. 661 & 662 of 2009 are not distinct from the instant suit. 9.The 4th Defendant only entered appearance on 14/07/2016 thereafter failed and or opted not to file a defence in the matter. 10.Despite intimation from counsel for the Plaintiff, prior to hearing on the suit, that he would regularize the position of the 4th Defendant, no such step was taken. Meanwhile, midway through the matter, counsel for the 1st, 2nd & 3rd Defendants, informed the Court from the bar, that the 1st Defendant had passed on. 11.Therefore, as at hearing of the suit, the Plaintiff failed to clarify the status, take directions and or regularize the position of both the 1st & 4th Defendant, of which, was left in abeyance. 12.Nevertheless, the suit proceeded to full hearing during which both parties called evidence in support of the averments in their respective pleadings. Plaintiff’s Case and Evidence 13.The Plaintiff testified as PW1. He began by stating that the 1st and 2nd Defendants are her brothers-in-law and that she holds a 1/3 of the shares (1500 shares) in the 3rd Defendant Company since 1995. She proceeded to adopt her witness statement dated 06/05/2014 meanwhile adduced into evidence the Documents 4 - 12 appearing in her trial bundle of documents as Pexh.1. The gist of her evidence was that she has never received any directors’ fees or emoluments and that her relationship with the 1st and 2nd Defendants has been estranged since 1995 upon the death of her husband. 14.On Cross-Examination, she confirmed that her late husband passed away on 29/03/1995 however she has not obtained grant of representation in respect of her late husbands’ estate. She was appointed as a director in the said company on 15/01/1995 prior to her late husband's demise, that since her appointment she has not attended or been invited to a directors meeting of the 3rd Defendant. She equally confirmed having not participated in the affairs of the 3rd Defendant having relocated to the United Kingdom (UK) meanwhile was unaware one had to be a Kenya citizen or have a valid work permit, or to be a director in a Kenyan Company. 15.She denied receiving any payment from the 3rd Defendant vide cheque No. 000358 in 1997 and maintained that she has been a resident of the UK from 1996 to date on the premise that she is a British National. She further confirmed being aware of the meeting in 2013 and that she appointed a proxy with authority to vote on her behalf. 16.That being aggrieved with the outcome of the vote, she filed the instant suit. Meanwhile, she confirmed being the Plaintiff in Nairobi HCCC No. 661 & 662 of 2009 wherein she sought injunctive orders against the 1st and 2nd Defendants from carrying on business under the name of the 3rd Defendant. It was her evidence other than the instant suit, she also challenged the outcome of the vote with the 4th Defendant. She concluded by stating that she did not work for the 3rd Defendant or attend any of its meetings from 1997 however it was her right as a shareholder and or director to receive payment by dint of her position. 17.In re-examination, the Plaintiff stated that her appointment as a director in 1995 was in presence of the 1st & 2nd Defendants and her late husband, prior to his demise. That she never received any meeting notice save for the one in 2013 that ousted her as a director. She maintained having never received any payment cheque from the Defendant in 1997 however asserted that as a director/shareholder she was entitled to payments of which she never received. 1st, 2nd & 3rd Defendant’s Case and Evidence 18.Mehendra Harakchand Patani, the 2nd Defendant testified as DW1. He identified himself as a director of the 3rd Defendant and that the Plaintiff is his late brother’s wife. He proceeded to adopt his witness statement dated 01/10/2024 as his evidence in chief meanwhile adduced into evidence the documents appearing in 1st, 2nd & 3rd Defendant’s list of documents appearing at Pg. 5-14 of the trial bundle as Dexh.1. 19.The gist of his witness statement is that the Plaintiff was provided with the 3rd Defendant’s audited accounts through her advocate in June 2014. He asserted that although the Plaintiff remains a shareholder of Drop In Company, she ceased to be a director by operation of law after failing to attend board meetings for more than six (6) months and, alternatively, her directorship was lawfully terminated at an Extraordinary General Meeting held on 12/06/2013. He further testified that the Plaintiff relocated permanently to the United Kingdom in 1997, stopped working for the company, ceased attending meetings, and rendered no services thereafter. He stated that she was fully paid all directors' fees due up to 1997, including a final payment of Kshs. 800,000/-. He further contended that the company could not lawfully continue paying directors' fees or emoluments to a person who neither attended meetings nor provided services to the company. 20.It was his evidence further that the 3rd Defendant ceased its textile business in 2006 due to losses and competition thereafter generated income by leasing property (L.R. No. 209/4394) as approved by the board. He noted that a previous suit filed by the Plaintiff concerning the leasing of the property, was struck out. 21.He also contended that any direct payment to the Plaintiff would be unlawful because the company must first satisfy its tax obligations to the Kenya Revenue Authority before distributing any dividends, which would also be subject to withholding tax. 22.On Cross Examination, he stated that the Plaintiff was removed as a director in 2013 however remained a shareholder. That since 1997 there has been no declaration of dividends by the 3rd Defendant and that the Plaintiff would only be entitled to the same only given that she is no longer a director. He maintained that all directors were paid a similar amount of Kshs. 800,000/- in 1997 and that he availed the audited accounts in respect of the 3rd Defendant since 1995 in Nairobi HCCC No. 661 of 2009 which was dismissed in 2011. However, he confirmed that the said audited accounts had not been exhibited in this case or before this Court. 23.He continued to testify that prior to the Plaintiff’s ouster, they involved her with respect to the running of the company and that despite leaving for the UK in 1996 she has not offered any service to the 3rd Defendant and she left no contact address. 24.It was his evidence that the audited accounts ending 2014 and 2015 declared profits of which are still being held on account in a bank meanwhile belonging to the three (3) shareholders. He confirmed that L.R. No. 209/4394 has yet to be sold, however receives rent from the said premises given that the property belongs to the 3rd Defendant. He went on to affirm that the Plaintiff has never received any proceeds from the said rental income. 25.In re-examination, he stated that in the company meeting held in 2013, the Plaintiff was represented by a proxy and despite her removal as a director, they continued to communicate through counsel. He concluded by stating that since 1997 the company has never declared any dividends. 26.At the close of the trial, directions were taken on filing of submissions. The respective parties duly complied. Plaintiff’s Submissions 27.Counsel for the Plaintiff began his submissions by restating in brief the history of the matter meanwhile condensed his submission into seven (7) cogent issues. As to whether the Plaintiff remains an equal shareholder and lawful director of the 3rd Defendant, counsel placed reliance on Section 185 of the Companies Act (repealed) and the decision in Shobhanaben Pankaj Kumar Patani v Pradeep Harakchand Patani & Others [2014] eKLR to posit that it is undisputed that the Plaintiff was appointed as a life director in the 3rd Defendant in place of her late husband in 1995. That the Defendants have failed to tender any evidence of any lawful transfer, transmission or surrender of the Plaintiff’s 1,500 shares received in 1995, thus the Plaintiff remains a director/shareholder in the 3rd Defendant. 28.Submitting on whether the 1st, 2nd & 3rd Defendants proved the alleged 1997 payment, counsel relied on the decision in Mbuthia Macharia v Annah Mutua Ndigwa & Another [2017] eKLR as quoted in Co-operative Bank of Kenya v Mutuku [2025] eKLR to contend that the 1st, 2nd & 3rd Defendants failed to discharge their evidential burden of proving the purported payment of Kshs. 800,000/-, and terminating the Plaintiff’s interest in the 3rd Defendant. In any event, he further submitted that if there was any purported payment as argued, the same did not terminate the Plaintiff’s proprietary or statutory rights in the 3rd Defendant, that by DW1’s own evidence the Plaintiff still remained a shareholder after 1997. Counsel therefore contended that in the totality of the aforestated the alleged payment was never proved meanwhile the same had no legal effect on the Plaintiff’s standing as an equal shareholder and director of the 3rd Defendant. 29.As to whether the Plaintiff’s cessation/removal was valid, counsel argued that the meeting held on 12/06/2013 was unlawful, procedurally defective and void as the Defendants did not demonstrate compliance with the statutory scheme governing the removal of a director nor do they rebut the Plaintiff’s evidence that she was protected as a life director or served with notices over the period relied on. That by dint of Section 185 of the Companies Act (repealed) and the decision in Shobhanaben Pankaj Kumar Patani (supra) the Court has since settled that the Plaintiff is a life director, that the 1st and 2nd Defendants lacked statutory authority to effect a “simple majority” removal of the Plaintiff meanwhile equally failed to comply with the statutory requirements. 30.It was further contended that the decision in HCCC No. 661 of 2009 - Shobhanaben Pankaj Kumar Patani v Pradeep Harakchand Patani & Others was no justification to remove the Plaintiff as the suit therein was only dismissed for want of locus to institute proceedings. That removal of the Plaintiff for non-attendance of meetings could not obtain on the premise that no evidence was tendered demonstrating any notices, emails, letters or minutes showing service of board meeting notices upon the Plaintiff for the period 1997-2013. Therefore, the 1st, 2nd & 3rd Defendants cannot deliberately rely on her absence as the reason they occasioned to remove the Plaintiff. While placing reliance on the decision in Wambeye Kimwlei Marakia v Board of Directors, Nzoia Water Services Co. Ltd & Others; Nzoia Water Services [2021] eKLR, counsel argued that where an office holder is removed without being afforded a proper opportunity to be heard the removal is null and void. 31.Concerning whether the Defendants unlawfully excluded the Plaintiff from the 3rd Defendant’s affairs, it was argued that non-participation was not voluntary but engineered. That the inactivity narrative was an afterthought whereas the Defendants conducted company affairs oppressively. The provisions of Section 780 and 782 of the Companies Act 2015, the decision in Re Al Marshidy Enterprises Ltd [2019] KEHC 7395 (KLR) and Shobnaben Pankaj Patani v Crown Match Company Ltd & 2 Others [2006] eKLR were called to aid. 32.Submitting on whether the Plaintiff is entitled to the disclosures sought, while calling to aid the provisions of Section 317 & 320 of the Companies Act, the decisions in Mary Kathambi v Julius K. Ithai & Ivory Security Services Limited [2020] eKLR and Mokoosio & Another v Vadera & 3 Others [2021] eKLR counsel argued that disclosure is a statutory incident of membership, the request is not a fishing expedition whereas the records are essential to determining the 3rd Defendant’s income earned, expenditure incurred, retained earnings and shareholder entitlements. That the 1st, 2nd & 3rd Defendants controlled the records sought whereas the attempted sale of the 3rd Defendant’s property necessitates the need for transparency. Therefore, a forensic audit was justified. 33.On whether the Plaintiff is entitled to director’s fees and financial benefits, it was submitted that the mere assertion that the Plaintiff rendered no services was insufficient whereas no notices proved non-attendance; no company minutes were adduced to substantiate the 1st, 2nd & 3rd Defendants defence. That in any event, nationality or absence of work permit were irrelevant meanwhile no statutory restrictions barred remuneration of the Plaintiff. 34.It was equally submitted that the 3rd Defendant’s wealth contradicted the 1st, 2nd & 3rd Defendants position that she was entitled to nothing and that equitable remedies extended beyond declared dividends therefore accounting and or payment orders were necessary to the suit. In conclusion, the Court was urged to allow the suit as prayed. 1st, 2nd & 3rd Defendants Submissions 35.On their part, counsel too condensed his submissions into five (5) issues for the Court’s consideration. On whether the Plaintiff was a life director/shareholder of the 3rd Defendant, it was submitted that the Plaintiff ought not be allowed unlimited access to their day to day affairs, while equally calling to aid Section 185 of the Companies Act (repealed) and the decision in Jakoyo Patrick Onyango Airo vs Kenani Housing Company Limited [2013] KEHC 2081 (KLR) counsel posited that the Plaintiff does not qualify as a life director, but only as shareholder in the company. 36.It was further posited that the Plaintiff was lawfully removed as a director through an EGM, that the Court ought not interfere with the company’s internal mechanism for removal of directors. That the Plaintiff out of her own testimony admitted to having migrated to and continues to reside in the United Kingdom therefore the Plaintiff would require a valid work permit to work as a director and receive remuneration in Kenya. Counsel went on to submit that in any event, the Plaintiff was paid Kshs. 800,000/- as final director’s fees of which she did not challenge or dispute. 37.On whether the Plaintiff is entitled to any payments as a director of the 3rd Defendant from 2005 up until filing of the suit, it was summarily contended that the Plaintiff having ceased participating in company affairs after 1997 and paid for her services rendered until then, she cannot claim remuneration for subsequent years. It was also iterated that having failed to produce a valid work permit payment for services allegedly rendered, without lawful authority would be illegal, arguing that the claim ought to be rejected. 38.Concerning whether the Plaintiff is entitled to full disclosure of the 3rd Defendant’s affairs or financials, counsel conceded that the Plaintiff became a shareholder and director of the 3rd Defendant thus entitling her to all rights and obligations that come with the position. Nevertheless, it was posited that the company had not held any meetings, has not declared any dividends, has suffered losses whereas the Plaintiff frustrated the disposal of the 3rd Defendants only asset through litigation therefore the Plaintiff is not entitled to the order sought given the aforestated. 39.As to whether the Plaintiff is entitled to an award of damages, while placing reliance on the decisions in National Social Security Fund Board of Trustees v Sifa International Limited [2016] eKLR, Macharia & Waiguru v Muranga Municipal Council & Another [2014] eKLR and Provincial Insurance Co. EA Ltd v Mordekai Mwanga Nandwa, KSM CACA 179 of 1995 it was summarily argued that special damages if pleaded must be specifically proved. That the Plaintiff having failed to meet the muster the entirety of her suit ought to be dismissed with costs. The decisions in Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd [1967] EA 287 and Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR were cited in the latter regard. Analysis and Determination 40.The Court has carefully considered the respective parties’ pleadings, the evidence adduced, and the parties' written submissions upon which it postulates that the Issues for determination concern-;a.Whether the Plaintiff is a life Director of the 3rd Defendant?b.Whether the Plaintiff’s ouster and removal from the 3rd Defendant on 12/06/2013 was legal and or lawful?c.Whether the 1st & 2nd Defendant’s were in breach of their roles as shareholders/directors of the 3rd Defendant?d.Whether the Plaintiff is entitled to the reliefs sought for in the Plaint?e.Who ought to bear costs? Whether the Plaintiff is a life Director of the 3rd Defendant? 41.At the heart of the matter is a determination whether the Plaintiff has established on a balance of probabilities her claim against the Defendants. Pertinent to the determination of the said issue are the pleadings, which forms the basis of the respective parties’ case before this Court. See-; Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] 2 KLR 91. 42.That said, akin to pleadings, is the evidence in support of the pleadings. Nevertheless, it warrants reminder, the applicable law as to the burden of proof is found in Section 107, 108 and 109 of the Evidence Act. In Karugi & Another v Kabiya & 3 Others (1987) KLR 347 the Court of Appeal stated that-:“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof….The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” 43.The gist of the Plaintiff’s grievance as against the Defendants is that the 1st and 2nd Defendant passed a resolution to remove the Plaintiff as a director of the 3rd Defendant despite the fact that she is a director for life therefore cannot be removed as per the provisions of Section 185 of the Companies Act (repealed). 44.The 1st and 2nd Defendants juxtaposition that the Plaintiff contention by arguing that she does not qualify as a life director and her removal as a director was lawful by dint of the EGM, hence this Court ought to refrain from interfering with the 3rd Defendant’s internal mechanisms towards removal of a director. 45.At the outset, it necessitates a revisit of Aburili J’s decision in Shobnaben Pankajkumar Patani v Pradeep harakchand Patani & Others [2014] KEHC 1886 (KLR) which decision the Plaintiff purports settled the question as to whether she was a life director of the 3rd Defendant or not. 46.The purport of the above decision, which was a ruling, the Court considered an interlocutory application seeking to stop the registration of a resolution removing the Plaintiff as a director of 3rd Defendant. Thereof, the Court proceeded to grant a temporary injunction restraining registration of the resolution removing the Plaintiff as director, however declined to grant a mandatory order restoring her position or expunging any registration already effected, holding that such orders would effectively determine the suit before trial. 47.Notably, it is not in dispute that the Court therein referenced Section 185 of the Companies Act (repealed), when it agreed with the Plaintiff’s disputation on her being a director for life, and her purported removal contravened the aforestated provision. Nevertheless, it is this court's view that the Court did not render a final determination as to whether the Plaintiff was a director for life but rather for purposes of the interlocutory application before it, accepted that the Plaintiff had shown a sufficiently arguable case premised on the aforestated provision. Therefore, contrary to the Plaintiff’s suggestion, the question as to whether she is a director for life with respect to the 3rd Defendant remains a live question that I will proceed to address as hereunder. 48.Here, I must state that the pertinent events relevant and or leading to the instant suit, transpired prior to the repeal of the Companies Act, Cap 486. That said, Section 185(1) of the Companies Act (repealed) provided that-;A company may by ordinary resolution remove a director before the expiration of his period of office, notwithstanding anything in its articles or in any agreement between it and him:Provided that this subsection shall not in the case of a private company authorize the removal of a director holding office for life at the commencement of this Act, whether or not subject to retirement under an age-limit by virtue of the articles or otherwise. 49.Meanwhile, Sub-Section (2) to (6) of the same provision, which outline the procedure towards removal of a director provides that-;(2)Special notice shall be required of any resolution to remove a director under this section or to appoint somebody instead of a director so removed at the meeting at which he is removed, and on receipt of notice of an intended resolution to remove a director under this section the company shall forthwith send a copy thereof to the director concerned, and the director (whether or not he is a member of the company) shall be entitled to be heard on the resolution at the meeting.(3)Where notice is given of an intended resolution to remove a director under this section and the director concerned makes with respect thereto representations in writing to the company (not exceeding a reasonable length) and requests their notification to members of the company, the company shall, unless the representations are received by it too late for it to do so-(a)in any notice of the resolution given to members of the company state the fact of the representations having been made; and(b)send a copy of the representations to every member of the company to whom notice of the meeting is sent (whether before or after receipt of the representations by the company),and, if a copy of the representations is not sent as aforesaid because received too late or because of the company’s default, the director may (without prejudice to his right to be heard orally) require that the representations shall be read out at the meeting:Provided that copies of the representations need not be sent out and the representations need not be read out at the meeting if, on the application either of the company or of any other person who claims to be aggrieved, the court is satisfied that the rights conferred by this section are being abused to secure needless publicity for defamatory matter; and the court may order the company’s costs on an application under this section to be paid in whole or in part by the director, notwithstanding that he is not a party to the application.(4)A vacancy created by the removal of a director under this section, if not filled at the meeting at which he is removed, may be filled as a casual vacancy.(5)A person appointed director in place of a person removed under this section shall be treated, for the purpose of determining the time at which he or any other director is to retire, as if he had become director on the day on which the person in whose place he is appointed was last appointed a director.(6)Nothing in this section shall be taken as depriving a person removed thereunder of compensation or damages payable to him in respect of the termination of his appointment as director or of any appointment terminating with that as director or as derogating from any power to remove a director which may exist apart from this section. 50.The repealed Companies Act, in itself does not describe who a “director holding office for life” is. Nonetheless, Section 9 of the Companies Act (repealed) specifically provides that a company limited by shares, guarantee or unlimited shall be registered with memorandum articles of association prescribing regulations for the company. To the aforestated end, the Plaintiff did not evince amongst her exhibits, the prescribing regulations in respect of the 3rd Defendant to shed any light on who a director holding office for life, constituted. 51.While it is not in contention that the Plaintiff was a sister-in-law to both the 1st and 2nd Defendants, that in itself did not qualify and or bestow upon her, the title of director holding office for life, pursuant to Section 185(1) of the Companies Act (repealed), without the same being expressly provided for in 3rd Defendant’s Memorandum and Articles of the Association. 52.The Plaintiff had the burden to discharge the said burden on a balance of probabilities that she was a “director holding office for life”. She failed to do so and, in the circumstance, it would be onerous for the Court to arrive at a finding in her favour on the issue, without any material to shore up such a determination. Whether the Plaintiff’s ouster and removal from the 3rd Defendant on 12/06/2013 was legal and or lawful, whether the 1st & 2nd Defendants were in breach of their roles as shareholder/directors of the 3rd Defendant and whether the Plaintiff is entitled to the reliefs sought for in the plaint? 53.I propose to contemporaneously address the above questions. As earlier captured in this judgment, Sub-Section (2) to (6) of Section 185 of the Companies Act (repealed) provides for the procedure towards removal of a director. My understanding of the sub-sections, and simply put, a resolution by way of a special notice to remove a director is proposed, the company notifies the director in question, the director is heard, a vote is rendered on the resolution, and the removal takes effect. 54.Here, from the evidence tendered before Court, indeed a notice to members in respect of the 3rd Defendant’s Extraordinary General Meeting (EGM) was issued for 12/06/2013 at 11.00am and ostensibly received by the Plaintiff. Upon receipt of the notice, the Plaintiff proceeded to appoint Mr. Sahiil Patel as her proxy in respect of the said meeting. 55.By her pleadings and evidence, the Plaintiff confirms that her proxy indeed attended the said meeting however despite protestation as to the agenda towards removal of the Plaintiff, the motion to remove the Plaintiff was carried two (2) votes against one (1) thereby leading to the her ouster. 56.Further, I note from Dexh.1, that the 1st, 2nd & 3rd Defendants evinced an affidavit sworn by Saleshkumar Vinubhai Patel, who identifies himself therein as being a member of the Institute of Certified Public Secretaries of Kenya, and practicing as such. He outlined the process he undertook towards the EGM, which in my view appears to have procedurally complied with provisions of Section 185 of the Companies Act (repealed).A cursory perusal of the Agenda Item 1, as set out in the notice sent to directors/shareholders of the 3rd Defendant, adduced in Pexh.1, the same merely stated in the said agenda that it entailed “The removal of Shobhna Pankaj Patani as director of the Company”. 57.The company secretary via his affidavit material at Paragraph 9 goes on to clarify that the purpose of Agenda Item 1, which was explained to the Plaintiff’s proxy, concerned the Plaintiff’s failure to attend any meeting of the board of directors for 15 years without just cause. And that the Plaintiff equally ceased to be a director of the company by her conduct compounded by the fact that she was not a Kenyan Citizen. 58.Concerning the Plaintiff’s ouster, this Court had earlier addressed itself to question whether the latter was “director holding office for life”. While the Plaintiff challenges the procedural propriety towards her removal, given this Court’s earlier discussion, I reasonably believe that due process concerning issuance of notice, granting the Plaintiff’s proxy an opportunity to vote in the meeting, was followed. However, as to the substance of the Plaintiff’s removal and whether the same was valid or whether the 1st and 2nd Defendants were in breach, the Court must revert back to the importance of memorandum articles of association where there exists a dispute between a company and its members. 59.Stated elsewhere in this judgment, the latter is the document prescribing salient regulations that bind a company and its members. Highlighting, the importance of the above, the Court of Appeal in Space and Style Limited & another v Wambugu & 4 others [2023] KECA 412 (KLR) pithily put it that-;“The articles of association is a contract between the company and its members setting out the rights of members inter se under the contract.” 60.Njagi, J. rendition in Abdirahman Affi Abdalla v Osupuko Services Station Ltd & Another [2011] KEHC 167 (KLR), this Court concurs with, put it well that -;“That principle ordains that a Company’s Articles of Association give rise to a contract not only between every member and the Company, but also among the members of the Company inter se.” 61.To the above end, the role this Court plays while adjudicating over a dispute between contracting parties has since long been settled in the decision of National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR, wherein it was stated that-;…..“A court of law cannot re-write a contract between the parties whereas its role is limited to interpretation of the same. This is because contracting parties are free to specify the terms and conditions of their agreement, and that when parties do contract, the court does not have the right or ability to substitute its judgment for that of the parties.” 62.With the above in reserve, the articles of association constitute the internal constitution of a company and regulates the rights and obligations of the company and its members, and it is binding upon the company and its members and governs the management of the company affairs. As observed elsewhere in this judgment, neither of the parties placed before this Court the 3rd Defendant’s Memorandum and Articles of Association. 63.While Section 26, 115, 132, 133 - 139, 140, 146, 185, 211 and 219 of the Companies Act (repealed), among others, provide for various shareholder rights, the Memorandum and Articles of Association still remains an anchoring agreement between a company and its members. 64.Ex facie, the Plaintiff by her suit has sought to enforce certain rights she deems as having accrued in her favour on grounds of purported breach by the 1st and 2nd Defendants however she fell short of evincing the anchoring point to those accruing rights, by way of the 3rd Defendant’s Memorandum and Articles of Association. As a consequence, the Court is hamstrung towards adjudicating the Plaintiff’s dispute without a reference point to the contract binding the 3rd Defendant and its members. 65.As is, concerning the Plaintiff’s removal as a director, the same appears to have followed due procedure as per the Section 185 of Companies Act (repealed). Evidence was placed before this Court in the above respect.However, concerning the integral question(s) on the Plaintiff’s removal and her accruing rights, if any, without the Memorandum and Articles of Association, the Court is unable to glance and interrogate the whole scope of the Plaintiff’s disputation and or any breaches meted upon her as a shareholder, by the 1st and 2nd Defendant. 66.Therefore, question(s) surrounding service of company meeting notices, failure to avail accounts and annual returns, failure to remunerate the Plaintiff, among others, required of the Plaintiff to juxtapose the 1st, 2nd & 3rd Defendants actions alongside the constitute regulations of the 3rd Defendant, and not just a mere blanket accusation and or fishing expedition, as it would seem to appear herein. 67.I believe the Court has sufficiently addressed itself to the flaws of the Plaintiff’s suit. Therefore, having analyzed the evidence on record, under Section 107 of the Evidence Act, the burden of proof lay with the Plaintiff and if her evidence did not support the facts pleaded, it failed as the party with the burden of proof. See the case of Wareham t/a A.F. Wareham (supra). Final disposition 68.The result of the foregoing is that the Plaintiff’s suit is ripe for dismissal, and is thus dismissed.As the dispute concerns members and shareholders of the same company, applying my mind to the provision of Section 27 of the Civil Procedure Act, I find it justifiable that each party bears its own costs of the suit.Orders Accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS 18TH DAY OF JUNE 2026.……………………….JANET MULWA.